Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

Roy Moore vs. Sacha Baron Cohen: The Maverick Politico and the Gadfly Funnyman

This is a case about a failed collaboration between two odd ducks on a project that is alleged to have damaged the reputation of one of them. The one that is suing, as one might imagine. Enter Roy Moore and Sacha Baron Cohen. One, the plaintiff, is a Republican maverick who fell short in his senate bid in Alabama a few years earlier and the other, the defendant, is a gadfly funnyman famous for pranking the unwary into embarrassing behaviors. Now they walk into a courtroom for their hour of reckoning on their failed collaboration.

First, here’s what happened: sometime in 2018, both parties took part in an episode of the defendant’s Showtime TV political satire series Who is America?  In a segment of the said episode, presented in an interview format, the plaintiff Moore, who had been dogged by sexual misconduct allegations, including child molestation accusations, willingly appeared as himself whereas the defendant Cohen posed as an Israeli Mossad agent. During the interview, the defendant produced an instrument he described as a pedophile detector which is programmed to beep around pedophiles. The instrument beeped when the defendant waved it in front of the plaintiff but did not beep when the defendant then waved the same instrument in front of both himself and another person who was present at the interview.  In response, the plaintiff walked out in protest, denying any and all involvement in child molestation.

In the present lawsuit, pending in federal court in New York, the plaintiffs, Roy Moore and his wife, allege defamation, intentional infliction of emotional distress and fraud, owing to Cohen’s portrayal of Moore as a pedophile, and therefore seek damages totaling $95 million against the defendant as well as the media entities Showtime and CBS.

For starters, this isn’t your typical case where somebody who is at arms-length is suing a comedian for defamation and other harms related to it. (Defamation here, simply put, means that the defendant has damaged or injured the plaintiff’s reputation in the community through a false statement of fact.) In such cases, as experience shows, it is pretty difficult to win in America because of the way the First Amendment guarantees free speech to everyone. For comedians who talk for a living, and sometimes, perhaps often times, talk in a way that offends other people, the free speech protection is a pretty big deal. And because they are comedians, most people listening to them often think they are making a “joke” rather than stating a “fact” (whether true or false) about someone else.  And, of course, when the person suing is also a “public figure”, like Roy Moore, a former chief justice of Alabama and a candidate in a high-profile national campaign for the US. Senate, then the obstacles to winning are even higher because the plaintiff will have to show essentially that the defendant either knew that the statement was actually false or that the defendant (recklessly) did not care that the statement was probably false. This is the so-called “actual malice” rule.

Predictably, as any comedian would in these situations, Cohen did file a motion asking for the early dismissal of the case but the court rejected his request and waved the case on to its subsequent stages. This despite the fact that Moore had signed a “release” in favor of Cohen and his co-defendants at the start of the parties’ collaboration on the project.  So why does this case seem something of a different animal and why has it already lasted longer than your typical defamation case against a comedian?  

First, one should note that the parties in this case actually collaborated on the project in question, unlike the ordinary case where a comedian did something on his own that is alleged to have “harmed” the person suing him. And the release in question was signed prior to the collaboration, as one might expect. And this is where it gets complicated because the defense that a comedian is just making a joke has been tainted in this case by an allegation of fraud against the comedian: Moore claims that his signature on the release “was obtained through fraud”, thus making the release “void and inoperative”.   To explain this, Moore said he was conned into doing the interview by Cohen putting on a disguise and posing as an Israeli anti-terrorism expert and also that he had been falsely told by the defendants that he was being presented with an award for his support of Israel.

Thus far, Moore’s argument is doing quite well in court, judging by the dismissal of Cohen’s motion, and this means that deciding whether there was in fact defamation or not will have to wait until the court first decides whether the agreement (the release) between the parties can be enforced and if so in whose favor. If Cohen is right, then that’s likely the end of the road for Moore because by signing the release he’d already exonerated Cohen for whatever loss or damage arises from his participation in the TV program.  Of course, if, however, Moore is right, then the agreement will not protect Cohen and his co-defendants Showtime and CBS, who will then have to defend themselves against Moore’s big money claims for defamation and emotional distress in the normal manner in which such cases are litigated in court.   

Now, if the case goes forward to a likely jury trial, how will the jury look at it? Well, this being a defamation case, Moore’s biggest hurdle, as suggested above, will be getting the jury to look past the fact that Cohen is a comedian and thus to think that he is doing anything other than just making a joke. That, plus the fact that Moore is a “public figure” would seem to cut in Cohen’s favor. Yet the determination of that matter by the jury will be affected by a few factors on the minus side for Cohen: for starters, an allegation of fraud consisting in disguising one’s actual identity to a collaborating partner isn’t a good look. Plus, when it comes to the question of “malice”, it won’t help Cohen’s side that Moore had previously warned them not to air the allegedly “defamatory” segment but they did so anyway, meaning that they intended to actually air it and if it turns out that it included false statements of fact, then just because Moore happens to be a public figure won’t help Cohen’s side.   Besides, Moore’s claim of fraud, for instance, will be decided on different principles which are more neutral than the defamation claim, where the law is much more comedian-friendly.

In the end, though, Cohen, as a comedian, still seems to have better-than-even odds of victory in this case, at least on the defamation claim; yet he will come to find that the more a comedian gets away from the traditional boundaries of comedy and wanders into dicey areas like punking folks via questionable tactics, the more that comedian loses the generous protections afforded him by America’s First Amendment. Especially when the comedian is dealing with people of means, who can afford to make their vengeful point, winning the lawsuit itself be damned. (Already, the lawsuit has been on since 2018; has been re-located from Washington DC to New York, where presently a nasty war of words is raging between the parties’ lawyers over alleged “discovery” misconduct, with threats of sanctions on both sides.)  Describing Cohen’s actions against his clients as “malicious” and “despicable”, Moore’s lawyer, the scrappy veteran litigator Larry Klayman vowed: “great harm has been done to my clients, which must be addressed and remedied.” Well, so far, as an adversary, Roy Moore is proving not to be an ordinary plaintiff, the lesson being that Cohen can still get hurt even if he wins the lawsuit.

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Suing JOHN OLIVER For Defamation: A Good Use Of Time?

Speaking of occupational hazards, comedians cannot help but irritate people and they do it aplenty. And, for what it is worth, they do get sued by those they piss off. This time John Oliver, host of HBO’s Last Week Tonight, has been sued for defamation by Robert Murray, founder and CEO of coal company Murray Energy Corporation, over statements that Oliver made on his show in mid-June.

So, there we go yet again, along the beaten path, one might say, as another lawsuit is filed against a comedian over what he said on a comedy show. While it may be tempting for those with money and other resources to step out there and try to teach a comedian a lesson, one has to wonder whether such a move is a good use of time in a place like America.

But first, here’s what happened:

On the aforementioned episode of his show, Oliver had a segment in which he knocked the Trump Administration’s efforts to revive the coal industry and portrayed CEO Murray as a guy who had fought against coal safety regulations. He referenced the collapse of one of Murray’s mines in Utah in 2007, in which nine miners were killed plus how Murray falsely claimed that an earthquake was to blame for the disaster even though, as Oliver said, a government report indicated otherwise.

In response, a few days later, Murray sued John Oliver along with the show’s producer Charles Wilson; HBO and parent company Time Warner on the claim that the segment was “false, injurious and defamatory” and that it was based on the show’s biases against the coal industry and the Trump Administration’s coal policies. To support his suit, filed in [coal country ] West Virginia, Murray, whose company is based in Ohio, claimed that the show’s producers were fully aware that a report by a government agency [Federal Mine Safety and Health Administration] supported his own version of the events and yet persisted in running the segment that “intentionally, falsely and outrageously” asserted that Murray’s claim was false.

So, that’s Murray’s defamation case against Oliver. But what are his genuine chances of winning? Well, for starters, defamation involves a false statement of fact that results in injury to somebody’s reputation or standing in the community. Now in defending this case, Oliver appears to have two grounds upon which he can push back against Murray. In other words, he can actually get two bites at the apple.

First, since we are dealing with an alleged false statement of fact, it follows that “truth” is a recognized defense to any defamation claim. And, given the circumstances of this case, one can predict that Oliver will try to play the truth card. Prior to the show episode in question, Murray’s side had served a “cease-and-desist” notice on Oliver’s people demanding that they not run the offending segment. Yet, during the show, Oliver positively scoffed at Murray’s notice, saying, “I know that you’re probably going to sue me, but you know what? I stand by everything I said.” Hmm! Well, so there you have it: Oliver clearly anticipated this lawsuit as well as his likely use of truth as a shield against liability. Translation: “The truth shall set you free…”, as the saying goes.

Then again, what if for some reason the truth defense doesn’t fly. Does it mean Oliver is toast? Not so fast! Now since we’re living in America, he could then move the ball into First Amendment territory, where our nation’s high court has long since held that debate on matters of public policy must be “uninhibited, robust and wide open”. Under the law here, for Murray to win, he has to show that Oliver knowingly made a false statement of fact or that he was reckless as to whether or not the statement was true. This is the so-called “actual malice” standard, which applies to public figures. Now, Murray may not be a public official, but it is hard for him not to be classified as a “public figure” considering a number of factors ranging from his prominent role in the mine collapse controversy and the references to him during official hearings on the matter to his position as the CEO of what is regarded by many as the biggest privately-owned coal company in America. (He would at least qualify as a “limited public figure” and that’s good enough for this purpose.) Besides, this is a debate about an important matter of public policy and concern, namely, mine safety. So yeah, in this lawsuit Murray probably will be deemed a public figure subject to the actual malice test. And there lies a big problem for him because this test  typically is a high hurdle for anyone to clear and, as experience has shown, the analysis here is exactly where these sorts of cases usually meet their Waterloo.

And this is so notwithstanding Murray’s allegation that the show’s producers in pushing their biased version of events were aware of other reports which indicated that an earthquake was responsible for the mine collapse. The thing here is, if Oliver relied on a government report in forming his opinion on the matter, as he claimed, then he cannot be said to have acted with malice, a la reckless disregard of the truth. As a participant in a public policy debate, he was entitled to hold and advance his own opinion, however offensive it may be.

Yet, if all else fails (which is unlikely anyway), Oliver can always say he was just making a joke as (you guessed it!) a comedian. Here, as long as a comedian is understood by his listeners to be making a joke, it makes it that much harder for a defendant like Murray to claim that the listeners are taking the funnyman’s cracks as true statements of fact, especially when we’re dealing with a famous comedian.

Oh, by the way, speaking of making a joke as a comedian, Oliver could also simply decide to play his entire defense backwards from the way it has been presented above. So, he could, for instance, straight up claim that the whole thing was all a joke for the amusement of his listeners. And if that doesn’t cut it, he can then start taking his two bites at the apple as described above, namely, that the offending statements are ‘true” anyhow or, alternatively, that he was just participating in an “uninhibited, robust and wide-open” debate on a matter of public concern.

In the end, there are a couple different ways that Oliver could win this thing. On the flip side, Murray’s odds of winning are quite long indeed. Then again, Murray could be the sort of guy who finds it worth his while to hale Oliver into court and make him sweat some and spend money on lawyers. After all, the statements in his lawsuit suggest that Murray feels wounded by Oliver’s attempts to make fun of his age and appearance. Recall that Oliver also called the guy a “geriatric Dr. Evil,” for added measure. So, given the gigantic odds against him, it is quite possible that Murray might choose to press ahead in this lawsuit because he looks at victory in an altogether different way, however perverse and vindictive that might seem to the rest of us. Otherwise, a lawsuit of this sort against a comedian in a place like America isn’t a good use of time because winning on the merits just isn’t a realistic expectation.

Twitter: #@ocarls

BRITAIN’S FRANKIE BOYLE: The Meaning of ‘Defamation’ Across the Atlantic

frankie_boyle_photo5Between the way the world thinks of him and the way he doesn’t want anyone to think of him, the whole stuff about reputation seems to loom pretty large in British comedian Frankie Boyle’s world. From all indications, the brash, irreverent comic doesn’t seem to sweat what anyone calls him as long as no one calls him a “racist.” In Boyle’s worldview, for anyone to call him that amounts to something of a declaration of war. And he could hit the hapless aggressor pretty hard in the wallet and set the aggressor back by many thousands of pounds or dollars. At least, in Britain! Just ask the Daily Mirror, one of Britain’s major tabloids, which took a big hit last fall for apparently ‘messing with the wrong marine,’ as the Americans would say. But first, here’s what happened:

On July 19, 2011, the newspaper published an article in which it speculated about Boyle’s chances of returning to his comedy show on Britain’s Channel 4 television station: “Racist comedian Frankie Boyle could soon be returning to TV despite upsetting thousands of viewers with his sick jokes,” began the article, which also claimed that Boyle was “forced to quit” the BBC panel show Mock the Week owing to his brand of comedy. Feeling deeply wounded by the article, Boyle sued the paper for defamation in a London court; he claimed that the article was defamatory and that it brought him into “odium and contempt”─ stock phrases in many a defamation lawsuit. (By the way, to commit “defamation” against a person simply means to say things about that person which tend to damage or otherwise lower that person’s reputation in the community. If those offending words appear in written form, the harm that results is called a “libel,” as in Boyle’s situation.) Boyle claimed in court that just because he plays characters who express racist views doesn’t mean that he himself is a racist. “These are phrases that a racist would use”, Boyle said. “There is no way they are an endorsement of racist terminology. It is the absolute opposite of that.” In support of Boyle’s position, his lawyer stated that it would be ‘political correctness gone mad’ if Boyle were labeled racist for using racial language in his jokes.

For its part, the paper showed no remorse over the publication and instead stuck to its guns, claiming that Boyle was a ‘racist comedian’ who exploited negative stereotypes of black people for ‘cheap laughs.’ In a further slap at Boyle (who writes a column for a rival newspaper The Sun) the Mirror told the jury that if they should find that Boyle had in fact been ‘defamed’, they should merely award him the sum of 45p (forty-five pence), the price of a copy of the Daily Mirror. Ouch! Well, in the end, the jury came back and Boyle got the last laugh as the jury found that the paper had indeed defamed him. As a result, the court awarded Boyle a total sum of more than ₤54,000 (about US$ 80,000-plus) in damages plus court costs against the Daily Mirror.

Yet, as one might expect, considering the close ties between the pop cultures of the Britain and America, not a few folks, especially in the comedy and media worlds, have wondered if Boyle could have won his case so brilliantly if he had brought the defamation lawsuit in America instead. Well, for starters, if Boyle were merely a regular guy who either just drives a cab or works at the post office, his case probably would have gone the same way on both sides of the pond. For example, if Pete defames Joe who is a private person (think an average Joe) and then Pete can’t prove that what he said of Joe was true, then the defense fails and Pete becomes liable to Joe for defamation. But where the situation involves a ‘public figure’ (think a celebrity) then the matter is handled in a different way in each country. And this is where Boyle, who is undoubtedly a ‘public figure,’ would have faced a totally different ball game if the lawsuit would have been brought in the U.S.

It used to be that defamation cases were handled the same way on both sides of the pond until the 1960s when America decided that ‘public officials’ and ‘public figures’ would have to jump more hoops and work much harder than previously before they can win any defamation lawsuit that they choose to bring against anyone, whether a private person or a media organization. This meant that it is no longer just enough that something said about a public official or public figure was not true; a greater amount of fault on the part of the person who made the statement was now required. In short, a public official or public figure who files a defamation suit could still lose the case even if the statement made against him is later shown to be false. Tough stuff!

This new rule is called the ‘actual malice’ test, and two things are required in order for someone to fail the test and thereby become liable for defamation when sued by a public official or a public figure: first, the person must have intentionally made or published the false statement with the knowledge that the statement was false; or second, that the person chose to make or publish the false statement when the circumstances were clearly such that he should have known that the statement he was making or publishing was false. (In this second scenario, you might include situations like someone, for instance, deliberately looking away from another person who is trying to show him that the statement was false; or situations where someone simply chooses to believe some crazy ‘Mickey Mouse’ kind of talk that ‘pigs can fly.’ Instances that come under this second scenario are often regarded as ‘willful blindness.’)

At the time the new rule of ‘actual malice’ was adopted, it was said that the First Amendment which commits America to the principle of ‘uninhibited, robust and wide-open debate’ on matters of public interest or public issues needed the new approach in order to provide greater protection for ‘free speech.’ In the 1964 case where this new rule was established, the New York Times had published an ad put forward by an interest group; the said ad detailed the alleged mistreatment of civil rights activists by the Alabama authorities. It turned out that some of the facts stated in the ad were inaccurate, for example, like how many folks had been arrested; exactly where the police had been positioned on the campus; what particular song the protesters had been singing and more. When the public official in charge of the police sued the New York Times for defamation, America’s High Court said it didn’t matter that these statements of fact were in fact false. The court stated that under the First Amendment, no defamation was in fact committed as long as both the Times and those who paid for the ad didn’t knowingly or intentionally publish the false statements nor did they publish them under circumstances where they clearly should have known that the statements were false.

So, as it happens, Americans are willing to put up with some ‘false’ stuff in order to protect the right to free speech and to preserve their highly prized culture of spirited debate on public affairs.

But exactly why, in Britain, did Boyle win his case against the Daily Mirror? Well, it’s fair to say that the jury simply didn’t buy the defense’s story: they didn’t think it was true that Boyle was a ‘racist’ or that he was ‘forced to quit’ the Mock the Week show because of his racist views. The defense’s style itself could be described as something of a ‘kitchen sink’ strategy that allowed the defense to hedge its bets by playing the kind of hand that both an English lawyer and an American lawyer might choose to play in defending a case like this one. Essentially, the defense claimed that the offending statement was either ‘true’ or was an ‘honest comment on a matter of public interest.’ Interesting tactic: first, to show that the statement was true, the defense trotted out some of Boyle’s quite offensive remarks on the Channel 4 comedy show Tramadol Nights, including the Madeleine McCann crack as well as his Twitter quips about Paralympic athletes. Then the defense came up with the public interest commentary that many an American defamation lawyer would recognize. Pretty smart hedge!

Yet, in hindsight, Boyle’s opponents did not seem to have done themselves any favors with the whole Mock the Week business. It seems like the overall atmosphere at the jury trial tilted against them when they fought for but lost that branch of their case. For example, a witness with firsthand knowledge of the situation actually showed up at the trial to testify that Boyle was not in fact canned from Mock the Week. Even worse for the defense, the witness stated that the show’s producers had hoped that Boyle would make a return appearance on the show in the future. Apparently, the Daily Mirror might have looked better just sticking with general claim of ‘racism’ against Boyle and no more.

But seriously, how would Boyle have fared in an American court? Short answer: Not as well as he did in Britain! Not even close. For starters, America, unlike Britain, is First Amendment territory. So, predictably, the ‘public figure’ business would have been front and center of this kind of case in an American court and with that (you guessed it!) comes the ‘actual malice’ standard as well. All of this would have created massive complications for Boyle and thereby jeopardized his odds of winning. Incidentally, in the British case, the Daily Mirror won a small victory when it got the court to reject Boyle’s claim of ‘malicious falsehood’ in the Mock the Week imbroglio. In an American court, a ruling that there is no malice would be a huge factor that could only weigh down a public figure’s odds of winning a defamation lawsuit against a newspaper which is defending itself on grounds of public interest.

In the end, considering the potential impact of these big issues on everyday life in any society, the Boyle-Daily Mirror case is one of those situations that remind any observer that, ‘special relationship’ aside, Britain and America are still different places after all. As far as comedy goes, America, thanks to the First Amendment, is the best place on earth not only for anyone to be a comedian but also for anyone in the mood to mess with comedians. In our case here, it means that a dude like Boyle, who would say anything about anyone but cannot stand for certain things to be said about him, obviously is living on the right side of the Atlantic ── outside America, that is. For the Daily Mirror, well, living outside America apparently seems like a different ball of wax.

***

    Author’s Note:

:*** As promised, my new book “Comedy Under Attack…” which covers political correctness and all the big issues in comedy today is now available on amazon.com and in stores. As a service to comedy, please post your comments about the book on Amazon, Goodreads, Facebook, Twitter and other places, so that together we can drive this ‘hot debate’ even deeper into the public square…

SACHA BARON COHEN BLINKS: How Not to Make a Comedy Movie

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…….)

Jim Norton: Lessons from a “Chicken” defamation fight

Comedian Jim Norton and the Opie and Anthony show are two of a kind and when they come together, it may be wise to prepare oneself for a moment that may not be so ordinary. As it happens, Jim Norton is a stand-up comic who is known for pushing a tough line with foul-mouth remarks that draw blood; for its part, the Opie and Anthony radio show itself is a no-holds-barred arena. Their collaboration is something of a “perfect storm” for words that may hurt, sting and irritate; and a potential defamation lawsuit to boot. And that’s exactly what came to pass when Roy Den Hollander, a self styled “anti-feminist lawyer” sued Norton for defamation.

To be sure, Hollander is a gadfly Manhattan lawyer who is no stranger to controversy. He claimed he had called into the Opie and Anthony show in the hope of having an intelligent discussion of the merits of his lawsuit against Columbia University in which he was seeking to have the university abandon its women’s studies program. Earlier on, he had filed but lost a lawsuit in which he sought to have the nightclubs cancel their “Ladies Night” sessions.

But here’s what happened: During Hollander’s call-in participation on the Opie and Anthony show, hosted by Norton in 2009, an argument had broken out between the two. In the heat of their testy exchange, Norton berated Hollander as a “stupid” person and a “whore” who desired to have sex with a feathered fowl. According to Hollander, the most offensive remark made by Norton was the part where Norton said: “The chicken crossed the road because it thought that [Hollander] would try to f*ck it.” Ouch!

Not wanting to let things slide, Hollander filed a defamation lawsuit against Norton, seeking a half-million dollars in damages. In his suit, Hollander claimed that Norton’s crude remarks “held him up to public contempt and disgrace and caused him personal humiliation, mental anguish and suffering.”

For his part, Norton filed a motion asking the court to sanction Hollander for filing a baseless lawsuit and also for Hollander to pay Norton’s legal fees.
Sensing disaster ahead, Hollander decided to cut his losses and soon the parties settled the case, with each side agreeing to drop its demands against the other. Despite the settlement, Hollander insisted he would have won the case anyway, even though he said he believed the judge in the case was unsympathetic to his claim: “The judge wasn’t too favorable towards the case, so I decided to quit while I was ahead…I figured Norton’s learned his lesson and he won’t mouth off as much…you don’t always have to win a case to win a case.”

So, anyhow, the case settled. But could Hollander have won his defamation lawsuit against Norton? Not likely, and it was smart of him to quit when he did.

For starters, considering that their line of work requires comedians to make fun of other people and of the society itself, most people won’t be too surprised to find that a defamation lawsuit would be the most common occupational hazard for comedians. When a person sues somebody else for defamation, he pretty much would be claiming that his reputation in society has been injured or damaged by something the other person said about him. But to win his case, the person suing has to show that the person being sued made a “false statement of fact.” This means he cannot win his case if the statement is a statement of “opinion” rather than “fact.” Of course, if the statement happens to be “true,” then he cannot win, no matter how much damage the statement does to his reputation.

And since we are talking about damage to reputation in society, what matters in a defamation claim is what the society itself thinks: Would most reasonable people in society who hear the statement think of it as an expression of “fact” or just an “opinion”? As it happens, most people in society tend to understand comedians to be folks who make a “parody” of other people and the society itself just to draw a laugh. Certainly, not as people who are expressing facts. And it is mostly for this reason that suing a comedian for defamation is a pretty difficult business.

It is the rare occasion where a defamation lawsuit against a comedian succeeds – as happened this past July in Australia where the Channel Ten television station in Australia was fined for allowing a comedian named Mick Molloy to joke on the station’s football TV show Before the Game that a female politician named Nicole Cornes, who was married to a former football coach, had slept with a former football player. The Australian court accepted the claim that the broadcast was an attack on a woman’s “self-respect and dignity” and rejected the excuse that given the humorous context of the show, the joke was not meant to be taken literally. But that was Australia. In America, it would have been a more difficult case for her because of the First Amendment’s free speech provisions. Given that she is a politician, she probably would have been regarded as a “public official /public figure” and a tougher test called “actual malice” would have been applied to her case.

Long story short, one big lesson from the Norton case is that suing a comedian in defamation, as tempting as it may be, is no easy business, even with comedians as outrageous as Norton. But while that may be a lesson for everyday folks out there, most people would expect that somebody like Hollander, a controversial lawyer, who’s been around for a while with stuff like this, would already know that lesson. It is safe to say that Hollander’s defamation lawsuit against Norton is quite frivolous and as it happens, not a few people could see that: the judge in the case clearly saw that and Hollander himself knew that the judge saw that as well. The lawsuit was a boneheaded idea and Hollander could certainly have used his time better than that. Rather than teach Norton a lesson, as he claimed, it was Hollander himself, it seems, who had, quite surprisingly, forgotten an old lesson.