The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's opinion in Moore v. Baron Cohen, by Judges Rosemary S. Pooler, Gerard E. Lynch, Raymond J. Lohier, Jr.:
Baron Cohen created, co-produced, and co-wrote Who Is America?, a television program that aired on Showtime. As part of the show, Baron Cohen and his team convinced Roy Moore ("Judge Moore"), a former Chief Justice of the Supreme Court of Alabama and a former Senate candidate from Alabama, to fly to Washington, D.C. to receive a prize in honor of his support for the state of Israel and to be interviewed by an Israeli television program.
It was a ruse: He was instead interviewed by Baron Cohen, who presented himself as an Israeli anti-terrorism expert and former intelligence agent. The episode of the program in which the interview aired led into the interview with news clips reporting allegations from the time of Judge Moore's Senate campaign that he had engaged in sexual misconduct as an adult, including with one woman who was fourteen at the time.
During the interview itself, Baron Cohen, in character, described a fictional device that the Israeli military had purportedly developed to detect underground tunnels, which would also "identify other abnormalities," including "sex offenders and particularly pedophiles," by picking up on a certain "enzyme" that they secrete at "three times the level of non-perverts."
Baron Cohen then produced a wand-like object that was supposed to be that device and waved it over Judge Moore, at which point it beeped. After a tense exchange between the two, Judge Moore exited the set, amid protestations by Baron Cohen that he was not saying that Judge Moore was a pedophile.
Judge Moore sued, but the court said his defamation, intentional infliction of emotional distress, and fraud claims were barred by a waiver that Moore had signed:
[Judge Moore] waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Program, which are related to the Program or its production, or this agreement, including, but not limited to, claims involving assertions of … (h) infliction of emotional distress (whether allegedly intentional or negligent), … (m) defamation (such as any allegedly false statements made in the Program), … [or] (p) fraud (such as any alleged deception about the Program or this consent agreement).
The court also rejected Moore's wife's "claims of intentional infliction of emotional distress":
"[H]eightened First Amendment protections apply to any tort alleging reputational harm as long as the underlying speech relates to a matter of public concern." … [T]he allegations against Judge Moore were a matter of public concern. Judge Moore has been a frequent candidate for political office and had just recently run for Senate at the time that the segment aired; allegations of wrongdoing clearly bore on his fitness for office.
As a result, under Hustler v. Falwell (1988), the statements couldn't lead to liability unless they could "reasonably have been interpreted as stating actual facts about" Judge Moore (and were false); but,
[T]he segment at issue was clearly comedy and that no reasonable viewer would conclude otherwise. The segment opened by referencing news clips of the allegations that Judge Moore had engaged in sexual misconduct, including with minors, and what followed was an attempt to comment on those allegations through humor.
Baron Cohen may have implied (despite his in-character disclaimers of any belief that Judge Moore was a pedophile) that he believed Judge Moore's accusers, but he did not imply the existence of any independent factual basis for that belief besides the obviously farcical pedophile-detecting "device," which no reasonable person could believe to be an actual, functioning piece of technology. "Humor is an important medium of legitimate expression and central to the well-being of individuals, society, and their government. Despite its typical literal 'falsity,' any effort to control it runs severe risks to free expression as dangerous as those addressed to more 'serious' forms of communication." Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems.
And the court rejected without discussion Moore's wife's fraud claims. Congratulations to Elizabeth McNamara, Rachel Strom, Eric Feder, and Carl Mazurek of David Wright Tremaine LLP, who represented Baron Cohen.