Sacha Baron Cohen is a gifted comedy actor whose wacky sense of humor and the way he pushes the envelope in his movies often cracks up his audience big time. Except that his shenanigans can sometimes seriously rub people the wrong way, even some of the folks in his hit movies. And when that happens, the whole thing tends to come back to bite him in the neck, bringing with it some pretty bad PR and perhaps even costing him some money. His latest headache just came in from the Middle East and this time even complete outsiders like talk show host David Letterman got themselves drawn into the mud fight.
Well, here’s what happened: In 2010, a Palestinian grocer named Ayman Abu Aita who appeared in Cohen’s 2009 hit comedy Bruno sued Cohen and the producers of the movie for over $100 million, claiming that the movie falsely portrayed him as a member of the Palestinian terrorist group, the Al- Aqsa Martyrs’ Brigade. For his part, David Letterman who was also joined in Aita’s defamation lawsuit against Cohen was swept into the mess when Cohen appeared as a guest on Letterman’s CBS late night show and talked about his interview with a Palestinian terrorist.
In his defamation suit, filed in Washington, DC, Aita claimed that the false portrayal of him in the movie had damaged both his reputation and his business and had brought on death threats against him and his family
Aita claimed that when he gave an interview to Cohen during the shooting of the movie, he had thought he was speaking to an actual journalist about peace activism and that he did not even realize that he was in fact taking part in a Hollywood movie. Plus, Aita claimed that he did not sign a “release” authorizing Cohen to include his image in the movie. (In the movie, Cohen, a Cambridge –educated-Brit, played an Austrian journalist on a mission to promote peace in the Middle East.).
As it happens, Cohen is no stranger to this kind of lawsuit and had actually been down this path before: In late 2006, in the aftermath of his blockbuster comedy Borat, the filmmakers were sued by two fraternity guys from the University of South Carolina who alleged that they were duped into appearing in the movie in which they made racist and sexist comments which they would never have made otherwise. The frat boys, who appeared in the movie as the traveling companions of Cohen’s Borat character, claimed that the filmmakers had falsely told them that the movie would only be shown outside the United States instead.
But anyway, in the latest lawsuit filed against Cohen by somebody from his movies, an out-of-court settlement was reached this past July, when Cohen figured he’d cut his losses rather than confront these serious allegations in a courtroom. The case was reportedly “settled to the mutual satisfaction of all the parties,” though they would not disclose the terms of the deal. Despite the settlement, some have wondered what the final outcome might have been if Cohen would have chosen to stay and fight instead. Could Cohen have had any good legs to stand on in court? Well, not quite, considering the law of defamation in America.
To begin, as one might have guessed, Cohen and Letterman’s folks made the smart choice to turn the whole thing into a free speech fight, which obviously offered them their best shot at defending the case. Their lawyers claimed that Aita’s “name or likeness was used in a newsworthy context in a documentary-style movie that conveys matters of legitimate public interest”. (The same free speech line was used to defend Cohen’s comments on Letterman’s show.) Speaking of newsworthy matters of legitimate public interest, it is worth noting that the protection given to speech is so very wide when someone is sued for defamation. Yet, the right to speak freely concerning “matters of public interest” is not unlimited and the law draws the line on what is called “actual malice”. In layman’s terms, this mostly means that the person talking about free speech must show that he did not “in fact” know that he was “lying” when he said what he claims to have a free speech right to say. This is because the law of free speech is not meant to give anyone a license to “lie” or to deliberately peddle false information that damages other people’s reputation, which is what the law of defamation is all about preventing folks from doing.
And this is where Cohen would have some real trouble in making his defense. As it happens, when Aita appeared in the movie Bruno, the caption on the scene read “Terrorist Group Leader, Al- Aqsa Martyrs Brigade.” In the context of the scene, the description of Aita as a terrorist was presented as a statement of fact, not as an opinion. If the statement would have been presented instead as just an opinion, it would have made a big difference in Cohen’s favor, especially because the “Bruno” movie is a comedy and America’s First Amendment law is the comedian’s best friend.
But what happened here was different: In the Bruno movie, it was presented as a statement of fact that the man (Aita) was a member of a terrorist group. And from all indications, when the scene was added to the movie, Cohen and the producers obviously knew that it was not true, especially since they had no reliable or even any source of information that the man was in fact a terrorist. As a matter of fact, it turns out that Aita is actually a “Christian” who had nothing to do with the Islamic terrorist group that he was said to be a leader of. So, given how little proof the filmmakers had that Aita was indeed a terrorist, we very likely are dealing here with a false statement of fact that was knowingly put in the movie. This would qualify as an “actual malice” situation that would seriously damage Cohen’s chances of beating this defamation case on free speech grounds. Even if Aita were somebody in the public eye (such as a prominent national politician or an international celebrity), Cohen’s chances of winning this case on free speech grounds would still be pretty weak.
Aside from all the free speech talk, there is the claim by Aita that he did not sign a release which would have legally authorized Cohen and his team to include the man in their movie. If it is indeed true that Aita signed no release for the movie, then apparently his participation in the movie was obtained by deception. Cohen’s movie is a Hollywood product that is designed to make profits for the filmmakers and so there is a big difference between giving an interview to a journalist for a story about peace in the Middle East on the one hand and doing exactly the same thing as an actor participating in a Hollywood movie on the other hand. Using someone’s image or likeness for a profit-making venture without that person’s permission is something that would give such a person a right to sue for damages for misappropriation of their publicity rights.
In hindsight, it seems that Cohen’s decision not to obtain a signed release from Aita was a calculated move. The simple reason here is that a release agreement would probably have required Cohen’s team to tell Aita what role he was being used for in the movie. It is easy to guess that Aita likely would not have agreed to be portrayed in the movie as a Palestinian terrorist, even though this was so obviously how Cohen’s team wanted to use him in the movie.
In the end, it is fair to say that given the odds against him in the lawsuit it was probably smart thinking on Cohen’s part to quit the fight early. It wouldn’t have been a good case for someone in Cohen’s position and one can’t help but think of the whole case as a teachable moment in how not to make a comedy movie. Always better to let everyone in a comedy movie in on the joke and to have them on the same page. Otherwise, it can cost the filmmaker money and bring him bad PR. And maybe even put lives at risk in certain regions of the world where folks can actually get killed just because of what they say unlike here in America. Most folks would hope that comedy can do better than that.
(continues next month…….)