The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Roy Moore Loses Libel Suit Against Sacha Baron Cohen in Second Circuit
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.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
“[or] (p) fraud (such as any alleged deception about the Program or this consent agreement).”
Always read consent agreements before signing. But, you’d think a clause like that would be void as contrary to public policy; “You agree that we can defraud you…”?
Right. That clause should have set off alarm bells with Judge Moore. And I have a hard time understand how that is enforceable.
You can see how that would happen. You can’t expect someone like Moore to actually understand the law.
Or, as is more likely, he did not bother reading it.
But I agree with Brett that such should be void against public policy.
It seems like he almost certainly did read it, since he modified it before signing it:
OK, so he’s exactly as much of an idiot as he casually comes across as. No surprise, that. I might defend the guy against false accusations, but “He’s an idiot” isn’t one.
Still, a “We can defraud you” clause ought to be as enforceable as a “We can forge your signature” clause, and for the same general reasons.
You’ve taken a few words out of context there. It does not say anything like you claim.
Lesson learned. Never speak to the press or to any entertainment figure. They are just attack dogs for the tech billionaires.
Second lesson learned. The legal system is failed. Only self help is left as a recourse.
Third lesson learned. The lawyer is 100% biased against conservative people. Imagine the legal outcome pranking a trans. You cannot even make a joke without having to pay ruinous settlements.
I think recent events have shown that talking to the FBI is not advised as well.
The FBI is the Swamp. Trump was a weak leader. He was played by the lawyer profession. He should have fired the entire worthless FBI on Inauguration Day. Replace them with top notch real cops. I hope that happens in 2025. No chance of that if Harvard scumbag lawyer, DeSantis is President. DeSantis will be an Ivy indoctrinated lawyer scumbag. Another Bush failed elite.
The idea that an Alabaman can get a fair trial from NYC scumbags, and diverses is as absurd as a black man tried in the Deep South by an all Klan jury.
The plaintiff lawyers failed their duty of zealous representation. No NY scum. No diverses. I would have objected to every utterance and to every ruling by the NYC urban scum, and called them such. Repeatedly bang on the table and demand all of them recuse. “Biased lawyer gibberish, Your Honor. Recuse urban scum.” Move the trial to Alabama, and to a jurisdiction of real Americans. The Proud Boys should have paraded around their homes with their AR15s.
These elites have no self awareness. They are more provincial and as clueless as people from the deepest hollers of Appalachia.
It is fair to say Moore is a legal expert. Yet the contract did not protect his interest. What chance do civilians have?
Any contract written above a 6th grade reading level should void for unconscionable process because it fails to give notice.
Even as a semi-observant Jew, I admired the Judge by sticking to his Guns, er, Tablets…
and the Giant Middle Finger he gave to the Marxist Stream Media, umm almost everybody, except the Alabama Voters (24/7 Media Coverage the last month, still only lost by 1.7%, (if you believe the “Rigged” polls).
and who rides a Horse to the Polls?? (Ronaldus Maximus?? don’t think he did)
Still thought that “Who is America” bit was funny as (redacted) and even laughed at the “Running of the Jew” bit in “Borat” (thats what they do in Kazakhstan (and every other “Stan”), its why we left)
Frank ““You telling me the man who try to put a rubber fist in my anus was a homosexual?”
Like others, I am troubled by the waiver point. Even apart from whether it should be (partially) void as being contrary to public policy, I wonder how people can waive something without having all the information. And in this case he was actively misled prior to signing the waiver.
Yes, they should have argued that the whole waiver was void as induced by fraud. They clearly used false pretenses to get him to sign it.
They did argue that; they just lost the argument because it was wrong.
Kinda self-referential, though, where the stipulation itself was obtained by the fraud. Gotta wonder if that law wasn’t enacted specifically in aid of scuzzy media outfits headquartered in NY.
No, you giant toolbox, you do not “gotta wonder”: you can use the citation in the opinion (which I copied for you) to find the case that the rule comes from, and see that it was a real estate dispute.
Perhaps he shouldn’t have expressly disavowed any reliance on those representations?
Agreeing that certain, very specific behaviour will be construed as non-fraud rather than fraud is simply establishing a basis of agreement.
You appear to be imagining, having taken bits put of context, that the signer agrees to allow himself to be defrauded. That is simply not the case. He is actually agreeing he has understood the terms and that fraud is not possible as a result.
The plaintiff here is obviously a complete idiot. That’s why he agreed to do a program with Sacha Baron Cohen, ffs. And then tried to sue over it, thus triggering the Streisand effect.
I can’t believe people like Moore (or Giuliani, or Dick Cheney) fall for stuff like this.
A pity they could not both lose.
My thoughts and prayers are with Roy Moore and his wife at this difficult time. There, that should do it.
As for “void for public policy” – sounds awfully infringe-y to me. Roy Moore signed of his own free will. “I’m just an igorant cracker what don’t know shit” is not an argument that this good ol’ boy should be able to present in court.
“. . . . signed of his own free will.”
How to tell people “I’ve never installed a computer program or used social media” without saying it.
MS Windows ‘Terms of Use’ alone is 9 pages not including bundled software, Facebook’s terms are 22+ pages, etc.; and all the other software and smedia is the same. All of it usually “signed” or agreed to within seconds. D*mn few of us are not guilty of doing exactly what Moore did.
Yes, I have signed ridiculously one-sided agreements. But I will also remember this case, as a caution against.
How to tell people “I’ve never installed a computer program or used social media” without saying it.</i<
How to tell people, "I need to say something clever" without saying it.
No-one else has argued that the contract was too long. And further, you'd think that when it comes to appearing on a TV show, you'd pay more attention to the fine print than you would on a typical software update.
It's quite possible that the old cracker was so happy for the publicity – as a known publicity hound – that he was only too happy to sign without looking too closely. but then he's merely stupid, a condition against which the law does not normally provide relief.
“D*mn few of us are not guilty of doing exactly what Moore did.”
In very general terms, sure. I’ll click through such disclaimers just like anybody else, because I know the outfits are generally legit, and circumstances under which that disclaimer matters are highly unlikely to arise. So it’s not worth my while to read the whole thing, because if I object to it I’ll just have to forego using the software anyway.
But in this case, you’re talking a media interview, and not just a media interview, an interview by a hostile media outlet. The relevant circumstances were nearly guaranteed to arise, the chances that they were being straight with him approximated zero, and he’s a damned fool if he didn’t know that.
Remarkably many prominent people are that sort of damned fool, though. 60 Minutes made a business plan based on interviewing prominent damned fools.
^^^ what he said
“. . . and he’s a damned fool if he didn’t know that.”
“. . . and the former Chief Justice, Alabama Supreme Court (who was suspended from the position and then resigned); Birther; anti-Evolutionist; homophobe, (multiple) failed U.S. Senate candidate (who has called for banning Muslims from serving in Congress), is a damned fool if he didn’t know that.”
FTFY
Here is the release, in its entirety:
I don’t think it’s unreasonable to expect an adult of ordinary intelligence (or even Moore) to be able to understand that.
I went to a restaurant famous for its Asian-inspired spicy chicken sandwiches, and when asked how hot I wanted the spice to be, replied “the hottest you have”. I was then presented with a damages waiver form and asked to sign before they would place my order. After a quick scan, I could see it was not a “professional” document, shall we say, so I asked the clerk, “Do I have to sign this before you will place my order? Are you saying I can’t eat what you’re offering?” The clerk said nothing, took back the form and put my order in.
The chicken sandwich was great. Spicy hot, just the way I like it. Hold the legal mumbo-jumbo.
Did you get fries with your order?
Dave>
Many years ago I ran a hole in the wall food place. We did exactly the same thing. It wasn’t legal, it was great marketing. People were coming in just to get their disclaimer to show their friends. (Yes, they signed it and kept it. People believe what they want…