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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Attacked Onstage: When a Comedian Can Win But Won’t Sue

So, comedians, as we all know, set out to make people laugh when they’re at work. But the funny thing is, they sometimes also make people angry and mad as hell. In fact, so mad that sometimes some of these people actually do attack them. As in, (gasp!) attack them physically, that is. Cut to comedian Steve Brown and, well, there we go again: another day another incident onstage at a stand-up comedy show. Welcome to one of those unfunny occupational hazards of a comedian’s life. But first, here’s the story:

One Sunday evening in late January, Steve Brown was performing at a Columbia, South Carolina venue named Comedy House when an enraged audience member rushed the stage and attacked the comedian. In the videotaped confrontation that ensued, the man Marvin Toatley, described in media reports as a drunken heckler, attacked the comedian with a microphone stand as well as a chair. By the time the scuffle ended, the comedian had sustained a gash in the arm, four other people had been injured including security staff plus $400 in property damage. Toatley was arrested a few days later and charged with aggravated assault and battery plus a charge for malicious damage to property.

For his part, Brown described the incident as an “unprovoked attack” and opined that the comedy clubs should have “well equipped professional security to protect us the entertainers who bring their clubs so much money.”

So, naturally, this being America, people are wondering about where things are headed next, especially the question of who will be on the hook here if a lawsuit were to be launched? So far, though, there is no report of a lawsuit.

But if a lawsuit were to happen, what, if any, claims could there be in this pretty wild situation and against who exactly? Will it be against the comedy club, the assailant Marvin Toatley, or who? (In the interest of full disclosure, this blogger has been asked about these “what ifs” by some comedy watchers and this article is in no small part a response to their curiosity.)

Well, for starters, the most obvious person who could be successfully sued for the incident in this case is the attacker himself Marvin Toatley. Quite simply, the guy could be hit with a battery claim coupled with a demand for money damages. Under the law, when a person intentionally makes an “offensive” contact with the person of another a battery is said to have occurred. The idea of the contact in question being “offensive” is based on the fact that there is no justification for the said contact or touching. The kind of justification we’re talking about here could exist, for instance, where the person who was touched consented to the touching or where the touching itself was done under some sort of legal authority. In our case here, if the comedian were to choose to sue the man who attacked him, it is difficult to imagine any way in which the attacker will not be liable for the tort of battery, as described above. It is pretty obvious that the attack was intentional and the justification for it was zero.

Also, as long as comedian Brown still has the attacker in his sights and is laying tort claims on him, he could also tack on a claim for Intentional Infliction of Emotional Distress. This is a claim that is reserved for wrongful actions which are deemed “outrageous” and “utterly intolerable in a civilized society”. True, the bar is set higher for wrongful actions of this kind than would be the case for just an ordinary battery. Yet, for a stranger to rush the stage and so viciously attack a professional comedian doing his act is the sort of bizarre act that could well strike a jury as outrageous and utterly intolerable and therefore cause them to find the attacker liable for this tort claim.

Anyhow, suing the attacker seems to be the easy part. What if the comedian Steve Brown got more ambitious and decides to sue the comedy club Comedy House as well. Then what? Can he make anything stick? Well, not likely! As matters stand, the more tempting option here is for him to sue the comedy club for negligence in failing to prevent the assault. In so doing he would somehow be suggesting that the club knew the attacker was prone to that sort of violence and yet did nothing to forestall the incident that occurred. The problem with alleging negligence against the club here is that the plaintiff will have to show that the club knew or should have known that a member of the audience at one of the shows on its premises would rush the stage and attack a particular comedian doing his act. This is a pretty high bar for any plaintiff to clear in a negligence case. In our case here, we have an intentional action from a stranger who was not an employee of the club and who acted without prior warning.

Plus, the fact that prior to the attack, Brown allegedly picked on Toatley who was sitting in the front row as being “grumpy” would not help his claim against the club since the comedy club could not have foreseen these actions that were unfolding rather quickly in such a short span of time. Therefore, it was hardly in a position to have prevented them.

By the way, as a general rule, the law does not hold one person liable for the intentional actions of another person, except in rare circumstances such as where the offender is an employee or servant of somebody else, as in master-servant situations. So, bottom line is, a move against the comedy club for any claim sounding in negligence likely won’t fly.

But how about “premises liability”, like suing the owner of premises for injuries or other damages sustained on its property? Can Steve Brown hit up the Comedy House for money on this basis? Well, perhaps in other circumstances, yes, but not in this case. For instance, let’s suppose that Steve Brown had finished his show onstage inside the club and was thereafter mugged and injured by hoodlums while on his way to his car in the comedy club’s parking lot. In that situation, we might genuinely be looking at issues of premises liability, given that every owner of premises (or occupier of land) is required by law to take reasonably adequate steps to ensure the safety of visitors lawfully on their premises. If such a thing were to have happened, namely, that Brown was attacked as he walked to his car in the parking lot, it would be pretty difficult for the club to fight the conclusion that, as an owner of premises, it had failed in its duty of protection to its visitors. But that wasn’t the situation we have here.

So, there we have it, as far as what the picture would look like if the comedian should decide to file a lawsuit against anyone who can be sued over what happened to him onstage that fateful day. So far, as already noted above, there is no report yet of the comedian filing a lawsuit as a result of this incident. This strikes some folks as rather odd considering that America is the most litigious society in the world. Yet, for those who are especially wondering why he hasn’t at least sued the attacker yet, here’s the thing: lawsuits are expensive things and they cost money and take time.

Therefore, most reasonable people who do have a life do not lightly pursue litigation unless it makes sense to do so. This means winning against the “right” party or as they say, the guy with deep pockets. In the real world, nobody wants to go through the big pain of litigation just so they can win a case against some guy who can’t pay the damage award (the proverbial “man of straw”). Obviously, the comedian must have his reasons for opting not to sue, but if I were a betting man, I’d bet that it’s because he thinks the guy who attacked him has no money and he doesn’t want to waste his time suing someone who can’t pay. As usually happens in these sorts of situations, the comedy club is probably the party with the deeper pockets in this case but, alas, the comedian’s case against the club is rather weak.

Only time will tell what the comedian Steve Brown ultimately decides to do, but while he mulls his options, the good news is that he still has a number of years before the statute of limitation runs on his claims. If he still wants to sue, that is.

Fighting The Daily Stormer: When a Comedian Sues a Rogue

When a comedian sues a non-comedian for damaging his reputation, one can expect the sort of unusual scenario where ‘the usual suspects’ become the ones trying to restore sanity. So, as the hunter becomes the hunted and people wonder just how well the shoe will fit on the other foot, the recent case of Muslim comedian, lawyer and left-wing political commentator Dean Obeidallah against the controversial right-wing neo-Nazi website The Daily Stormer offers us a window into the reality of that tricky situation. But first, here’s what happened:

 This past June, Obeidallah, a SiriusXM radio host wrote a piece in The Daily Beast in which he queried why President Donald Trump wouldn’t use the phrase “white supremacist terrorism” to describe the activities of right wing extremists. According to Obeidallah, the defendant website responded by fabricating tweets that appeared to have been written by Obediallah himself and posting an article titled” Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to Declare Whites the Real Terrorists.” This was then followed by a torrent of online abuses directed at Obeidallah including even death threats. Incidentally, Obeidallah and The Daily Stormer appear to be old enemies.  Two years earlier, Obeidallah had written another piece in The Daily Beast in which he urged the GOP to disavow the growing support that then-presidential candidate Trump was receiving from right-wing extremist groups including (you guessed it!) The Daily Stormer.

In his lawsuit against The Daily Stormer and its publishers, chief among them (its public face) Andrew Anglin, Obeidallah seeks damages against the website for libel and intentional infliction of emotional distress.  

 Now, before even talking about Obeidallah’s chances of winning this defamation lawsuit, it is worth considering something else, namely, that given the sort of folks that he’s dealing with here, it increasingly looks like worrying about winning the case may well be the lesser of his problems. In fact, his biggest headache at this point is actually finding the people he is suing. Andrew Anglin and The Daily Stormer, for all their caustic advocacy of hate and extreme right-wing rhetoric, are notoriously shy when it comes to showing up to defend their position in court. And, whenever push comes to shove, finding them to serve them with court papers can often seem like looking for a tiny needle in a huge haystack.  “Good luck finding them,” one might well say to anyone in Obeidallah’s position looking to serve Anglin and his website with court papers.

This past April, for instance, the Alabama-based nonprofit legal advocacy group, the Southern Poverty Law Center (SPLC) tried to serve The Daily Stormer with court papers after suing them for intentional infliction of emotional distress and invasion of privacy for allegedly orchestrating “a troll storm” that literally sought to destroy the life Tanya Gersh, a Jewish real estate agent in Montana. (Supposedly, the Stormer’s actions were aimed at punishing Ms. Gersh for engaging with the mother of white supremacist leader Richard Spencer.) Well, let’s just say that the report card on the SPLC’s attempt to serve Anglin with court papers in his native Ohio, at one point, read like any plaintiff’s nightmare: Seven different addresses and 15 return visits yielding nothing, plus lots of undelivered certified and regular mail service. (At one point, there was even a report, albeit unsubstantiated, on CNN that said Anglin had moved to Nigeria.) Tough luck!

Long story short, Obeidallah’s opponents are not the easiest guys to find when it comes to serving court papers. Now let’s get to the law on Obeidallah’s claims against them.

First, the defamation claim involving injury to the plaintiff’s reputation is fairly easy for anyone to understand. To call anyone a “terrorist” in our post- 9/11 world is a terrible thing. What’s even worse is to say that of a Muslim person in a place like today’s America. Under these circumstances, the damage to the plaintiff’s reputation couldn’t be more self-evident. For someone in the public eye like the comedian-plaintiff in this case, whose career survival and success depends to a large extent on his public image and his acceptance by the public, the label of “terrorist” is like a dagger to the heart of his standing and reputation in the society. Of course, under the law, since truth is a defense to a defamation claim, a defendant can still defeat a defamation claim by showing that what he had said about the plaintiff is actually true. But, alas, such a defense is not available to The Daily Stormer in this case because what they said of Obeidallah here is an absolutely false and entirely made up tale with the clear purpose to ruin his reputation.

Yet, since we’re in America, the First Amendment could always come up as defense in a defamation case, for whatever it is worth. Meaning that the neo-Nazi website here, for instance, might attempt to claim that Obeidallah is a public figure and that they were simply exercising some First Amendment free speech right on a matter of public concern. Now, speaking of public figures, Obeidallah may not be a familiar person to most people on the streets of America, but he is by no means merely the sort of anonymous [private] Joe out there who rides the subways of New York City on a routine basis. To the contrary, he’s actually something of a controversial figure who takes on public causes. For instance, in the fall of 2015, he was one of the ringleaders of a group of comedians, including Negin Farsad, who won a lawsuit against the Metropolitan Transit Authority (MTA) allowing them to advertise their documentary “The Muslims Are Coming,” in the New York City subways.  In any event, public figure or not, any First Amendment defense attempted by The Daily Stormer in this case will all but flop on the simple ground that their statement against Obeidallah was “knowingly” false.

Now, how about the claim of intentional infliction of emotional distress, which, one might add, has grown into a staple of modern defamation cases. On its terms, this claim is often designed to punish defendants whose actions are judged to be so “outrageous” as to “exceed all bounds of decency” and thus to be “utterly intolerable in a civilized society.” Well, let’s just say that for all the reasons stated above with respect to the defamation claim, the clearly outrageous actions of The Daily Stormer in this case also make them liable for the intentional infliction of emotional distress.

In the end, for all the merits of his case, it’s fair to say that Obeidallah is in something of a pickle here, which is par for the course for anybody suing a rogue defendant like The Daily Stormer these days. He has overwhelming odds of winning the match if only he can get the other guy to show up. This is the kind of irony that one won’t find in most regular cases where folks tend to worry less about their opponents actually showing up for the fight.  Not to make light of the grave situation here and to give a nod to comic relief, perhaps one can say that many of Obeidallah’s comedy brethren might find in this ironic situation some good comedy material for their time onstage. But seriously, it’ll be quite interesting to see how this case ends.


Twitter: @Ocarls

THE ‘WEDGIE’ COMEDIAN: Crossing the Line Between Comedy and the Jailhouse

charles_ross_photo3Though he’s still pretty young, aspiring comedian Charles Ross not long ago learned a simple lesson he should have known all along: that comedy is only about jokes as long as everyone understands what is happening as a joke even if they may not like the joke. And of course, as long as any funnyman involved stays within the boundary lines of the law. Stepping outside the lines drawn by the law can really push things off a cliff and bring unintended consequences for the jokester, including possibly an unexpected visit to the jailhouse. In other words, a bad joke is one thing, but in the real world out there not everything is regarded as a joke – for instance, giving wedgies to total strangers. (For those who may not be familiar with the term, a ‘wedgie’ occurs when someone’s underpants bunch up between the person’s buttocks. Oftentimes, wedgies are pranks associated with schoolyard bullies and most folks don’t think of the wedgie look as ‘cool’.) But first, here’s what happened:

This past January in Bradenton, Florida, 18-year-old Charles Ross, was arrested by the police and charged with battery after one of the visitors at a movie theater in the city reported to the police that Ross had put his hands on him and had given him a wedgie. According to the police report, the 20-year old complainant alleged that Ross had grabbed him “by the back of his pants and pulled them up hard.” The complainant also stated that while Ross was performing the wedgie on him, Ross had asked him if he wanted to hit him and that by Ross’ arrangement, the whole incident was being filmed. Well, just like the complainant himself, the police were in no mood for jokes either, and so Ross was arrested and locked up overnight before being released on bail the next day and given a court date for his battery charge. The police report also indicated that there had been other victims of Ross’ misconduct who did not have the nerve to press charges because they were simply too embarrassed to do so.

It is not surprising that the police found other victims of Ross actions on the day he was arrested because apparently doing these kinds of stuff was simply the way Ross rolled. He was something of a well known gadfly in the area who shocked unsuspecting strangers with various embarrassing pranks, which were then posted on his YouTube site RossCreations . Some of the pranks he had pulled over time and posted on his site are as follows: kissing total strangers to their total shock and embarrassment; faking ‘trust’ falls with strangers by walking up to them, turning his back toward them and challenging them to catch him as he falls backward with his arms stretched sideways; asking strangers to scratch his back; doing handstands over strangers who were bikini-clad women laying on the beach; plumping himself down on the laps of strangers sitting on park benches; dressing as a pink pig, then running up to people and leaping onto their backs; and many more.

Both Ross and the police put different spins on exactly what Ross does on his YouTube site. While Ross prefers to style his actions as “pranks,” the cops see them as Ross merely “creat[ing] situations in order to harass and annoy people.” Regardless of how anyone sees what he does, Ross’ antics have elevated him to a celebrity on the internet. And, as one might predict, given the times we live in, Ross’ celebrity has grown even higher with his current police trouble: shortly the arrest incident, his YouTube channel reportedly received over 50,000 viewers, taking his total count to well over five million viewers.

As it happens, Ross isn’t the only comedian who mixes his comedy with practical jokes. Others do it too, including even veteran comics. Perhaps many will recall the story from 2010 when comedy legend Richard Belzer jokingly put his hand on the shoulders of an Apple Store employee in Midtown Manhattan. Belzer ended up having to explain to the police why his frolic was not enough to get him arrested and charged with harassment. He was able to talk his way out of the mess with help from the store’s video surveillance recording. So, practical jokes can sometimes get real tricky. And this is what makes this case quite a teachable moment for comedians who don’t confine themselves to doing their act onstage and who try to involve strangers in their act without the prior consent of such strangers. The biggest risk here is that those strangers may not share the comedian’s sense of humor and that’s where the trouble breaks out.

Needless to say, when a comedian is performing onstage, he can pretty much say whatever he wants and he can get away with so much stuff without running into trouble with the lawman. But getting into other people spaces without their consent or, worse, actually touching them takes matters way outside the free speech zone and creates a whole different ball game.

Well, speaking of the law, the charge against Ross here is battery. A person commits battery when he deliberately makes a physical contact with somebody else without any lawful justification. For the physical contact to be regarded as ‘battery’ the touching that occurred has to be rather ‘offensive’ in nature. This of course means that the person who made the contact (or did the touching) did not have the permission or ‘consent’ of the other person to touch that other person’s body; the other thing here is that the person who did the touching did not have any lawful excuse for the touching. One can imagine from this explanation that when a cop, for instance, puts his hand on somebody during an arrest, his power of arrest as a cop gives him his lawful excuse to touch folks in that manner and still not be guilty of battery. This also means that doing things like giving a woman an unwanted kiss can be regarded as battery.

So, where does all this leave Ross and his cop case? Well, this one is pretty easy: the lawman got him! With respect to proving battery, this is the easiest case ever, as Ross himself has done the prosecutor’s job for him: he literally filmed himself committing a crime. In doing so, Ross himself might as well have been an investigator working for the DA’s office. Pretty boneheaded thing to do! Luckily for him, it’s only a misdemeanor battery charge but still he will likely get a criminal record.

In a place like New York, Ross might also be hit with a ‘harassment’ charge for his actions. In this case, the prosecutor is required to show that the accused person intentionally harassed, annoyed or alarmed somebody else by striking, kicking, shoving or making some other physical contact with that other person. Usually cases requiring a person to prove exactly what another person intended to do are tough ones to crack because it’s not that easy to read other people’s minds. Yet for a guy like Ross here, this is pretty cold comfort because there is little doubt from his actions that he intended to do all of those things that the law of harassment says should not be done.

Aside from bringing a police case against him, some of the victims of Ross’ pranks could also have opted to just go after him on their own, in civil court. Here, they’ll be looking to hit him in his wallet by seeking damages against him. The most obvious ground on which to seek damages against him would be ‘battery’ which is also a ‘tort’ or civil wrong. And the requirements for winning a battery case in civil court is pretty much the same as what is required in criminal court, as already described above.

And as long as we’re in civil court, the victims of his prank could also decide to sue him for damages for another tort, which is less commonly talked about than the others perhaps because it is generally harder to make the claim stick with this one. Still, the claim is available. This tort is called ‘intentional infliction of emotional distress.’ And this kind of claim can be filed by any person who alleges that the actions of another person toward him are so outrageous and so way out of the ball park that they simply should not be tolerated in a civilized society. Needless to say, because of the requirement of ‘outrageous’ behavior on the part of the offender, petty annoyances or trifling misbehaviors likely won’t make the cut with this kind of claim. And the standards for judging outrageous behavior are the standards of the community where the thing happened. Well, it is fair to say here that most of the kinds of pranks that Ross pulls on his shocked victims would be considered by most folks to be outrageous whether we’re talking about suburban Bradenton, Florida or even Times Square in New York City.

In the end, cases like this one, although pretty silly when one comes to think about it, can only be a lesson to people concerning where the lines are drawn between doing comedy and invading other people’s lawful space. Ross himself reportedly admitted that this ‘ended up not being one of his best jokes.’ Well, actually, it ain’t even a joke at all. It is flat- out law breaking that certainly exposes him to unnecessary liability. To be sure, dumb stuff like this would sooner have him sitting in jail than becoming a superstar on Comedy Central. So, seriously, it’s time to wise up: Knock it off, already!

*******Author’s Note*** My new book “Comedy Under Attack…” is now available on Amazon and in stores. Please post your comments/reviews on Amazon, Goodreads, Facebook, Twitter and more, and join the raging debate. Make yourself heard!

THE JAY LENO TRIANGLE: Comedy, Courtroom & Foreign Relations

Funnyman Jay Leno is back in court and we have seen this script before. Just last month, the Sikh religion found itself at the butt of Leno’s jokes and the Sikh faithful did not find the stuff amusing. So, early the next week, Randeep Dhillon, an Indian-American and a Sikh, filed a defamation lawsuit in Los Angeles against both Leno and NBC for allegedly ‘racist’ remarks that defamed the Sikh religion and injured his feelings and those of other Sikhs. Dhillon claimed that Leno’s remark exposed the Sikh religion to “hatred, contempt, ridicule and obloquy because it falsely portrayed the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh.” Overseas, folks were not amused by the joke either: the Indian foreign ministry strongly condemned the joke as “quite unfortunate and quite objectionable” and vowed to take up the matter with the U.S. State Department.

It all happened during a monologue segment on Leno’s “Tonight Show”, when the talk show host showed photos of the homes of Republican presidential candidates. When it came time to show multimillionaire Mitt Romey’s pricey vacation home in New Hampshire, Leno instead showed a photo of the sprawling and majestic Golden Temple, in Amritsar, India, the most revered temple in the Sikh religion. Though Leno reaped boisterous laughter from his late night audience he did hit a raw nerve and create ripples outside the world of comedy.

So, bingo! …there we go again: another late night guy, another monologue quip, another pissed off person and another lawsuit.

In America, the lawsuit itself has not been well received and has in fact been ridiculed by many, including Fox cable TV’s controversial Bill O’Reilly who in his trademark derisive manner described the lawsuit as “dopey”. One commentator, himself a lawyer, said the filing of the lawsuit was proof positive that there were indeed too many lawyers in America.

So, it turns out that the Americans and the Indians view both the joke and the lawsuit rather differently. But politics and cultural differences aside, does the lawsuit look like something that might have legs in the courtroom? Well, in America at least, it seems like Dhillon’s chances of winning his lawsuit may be quite close to zero.

For starters, suing somebody for defamation in America is a whole different ball of wax from suing that same person anywhere else. Especially a public figure like Leno and especially on a matter so connected to politics as the wealth of political candidates. And throw in the religion factor and the whole thing gets messy pretty fast. Plus, the man Leno is, of all things, a comedian, to boot. In these situations, the First Amendment comes across like an 800 pound gorilla sitting in the courtroom and making tough demands. At its heart, the First Amendment is all about promoting an atmosphere of “uninhibited, robust and wide open debate” about matters of public concern.

Considering that Leno is a comedian, the defamation lawsuit has two big strikes against it in a place like America. First, what Leno did in his monologue was an attempt to “parody” the economic background of candidates running for political office. For whatever it is worth, such a “satirical” treatment of current events usually gets a ton of protection from the First Amendment.

Also, Leno being a comedian, his remarks during his monologue were not understood as statements of fact but mere jokes by a comedian trying to get a laugh. Since in a defamation case the person filing the lawsuit is claiming that his reputation in the community has been damaged by the false statement made by the person he is suing, the “context” of the statement itself becomes quite important. And this is where it gets quite difficult for someone like Dhillon. Speaking of “context”, the monologue segment of “The Tonight Show” is clearly understood by most everyone in America as an occasion for light hearted jokes designed merely to make people laugh and no more.

This means that even those audience members at Leno’s show who had never seen or heard of the Golden Temple would have simply taken it that Leno was just making a joke about Romney’s wealth. Such an image, by itself and in association with Romney, would not have caused those audience members to hold the Sikh religion up for “hatred, contempt, ridicule and obloquy.” Plus, even setting aside the “context” of the statement for the moment, it is also fair to say that neither Dhillon himself nor any other person (whether they are Sikhs or otherwise) who truly knows the Golden Temple could have really thought that the place shown in the photo on Leno’s show was in fact Romney’s home.

Speaking of what claims Dhillon could make against Leno, perhaps in other circumstances, he might be able to sue for a tort called Intentional Infliction of Emotional Distress on the claim that the joke was “extremely outrageous” and thereby “intolerable in a civilized society.” Yet, in a place like America where comedy is a huge part of the pop culture, Dhillon’s big problem is that he’d have to actually demonstrate that the joke was both extremely outrageous and utterly intolerable in a society like America. Fat chance! And there’s always the First Amendment, still sitting in the courtroom.

Of the two strikes that are set against this case, the First Amendment hurdle is the bigger one. And as it happens, not even Romney himself could win this kind of lawsuit in an American court. Fact is, the protection for “satire” under the First Amendment is so broad that even pretty hurtful, unnecessary and outrageous remarks are protected. It is interesting that the Indian foreign ministry, in condemning Leno’s remarks, also added that “freedom does not mean hurting the sentiments of others.” Well, may be so, but in the American experience, it happens, apparently.

Yet, none of this stuff is really new to Americans. For example, thanks to the First Amendment, attacks on other people’s religions by both comedians and other folks are not punished by the law. If there is any surprise in this whole situation, it perhaps ought to be that Dhillon, an American himself, could indeed have expected to win this kind of lawsuit. This being America, the Catholic Church, for instance, or perhaps the Mormon religion for that matter, would not have thought it worth their time to file a defamation lawsuit against Leno if the image he had used on his show for Romney’s home would have been instead a Catholic Cathedral or some other iconic Mormon building.

Though such a depiction would obviously piss off those religious organizations and definitely rub them the wrong way, lawsuits in situations like that just don’t work out here in America, regardless of whether or not they should. One remarkable example comes to mind here. Not long ago, in the wake of the child sex abuse scandals that rocked the Catholic Church, comedian Louis CK put out a You Tube clip in which he accused the entire Catholic Church of existing “solely for the purposes of boy rape.” Ouch! Well, nobody thought to sue him. Say hello to the First Amendment in America!

As already noted, the case has pretty long odds of success and will most likely fail when push finally comes to shove in the courtroom. But before the courts weigh in, the foreign policy people have already given their short answer to the question in this case. In typical America-speak, the State Department has let it be known in an official statement that what Leno did was protected by the First Amendment. (Of course, the State Department also acknowledged the tensions that the joke has caused to the friendly relations between the U.S. and India.) It is only a matter of time before the courts tell Dhillon the same thing about the First Amendment.

In the end, this one seems like a total no-brainer. The way it is, diplomacy and foreign relations have their place but Leno is just a comedian trying to make people laugh on his show. And it is a safe bet that none of this entire hoopla will be slowing him down any time soon: If the stuff is funny, the funnyman will take his shot, diplomatic sensibilities and foreign relations notwithstanding. That’s just the way it is with comedy and, as they often like to say, “It’s nothing personal!”

ANDY DICK the defendant: When a Comedian Goes off the Deep End

Comedian Andy Dick is in trouble again. Only this time, he is not being arrested by the cops but is being sued by someone who won’t take his antics lying down.

In early May, a Dallas man named Robert Tucker filed a lawsuit against Dick, his agent the United Talent Agency (UTA) and a Dallas club named Trees where Dick had a show this past December. In the lawsuit, Tucker seeks damages against Dick, UTA and Trees for offensive physical contact, intentional infliction of emotional distress and defamation by conduct, plus separate claims for negligence against UTA and Trees, and yet another claim in premises liability against Trees.

Now here’s what happened: In December 2010, Dick was performing at a club in Dallas, Texas, and was dressed in a red skirt (with no underwear beneath), plus a black top and a wig. Then, as Dick moved among the audience, Tucker asked him for an autograph. Dick then allegedly pulled up a bar stool beside Tucker and proceeded to force his genitals against the left side of Tucker’s face. The night before, Dick reportedly pulled the same act in another club in Austin, TX, when while standing onstage, he pulled another patron’s head into his groin.

The claim against Dick gives Tucker personally his best chance of winning something in this lawsuit. Under the law, an offensive physical contact or battery occurs when one person deliberately makes physical contact with another person without their consent and without lawful excuse. Also, an intentional infliction of emotional distress occurs where one person does a wrongful act so egregious and outrageous that it crosses the line of decency and what can be tolerated in a civilized society. Defamation by conduct occurs where one person’s conduct damages the other person’s reputation by creating the false impression that the other person who is suing is something that they are not or that they did something they did not in fact do. At the minimum it seems that Dick may well be liable for causing an offensive physical contact or battery. He didn’t have Tucker’s consent to do what he did to him and it is hard to see what lawful excuse he had for his actions. And Dick’s odds of beating the other claims against him are not so good.

But the case against UTA (his agent) and Trees (the club that booked him) is not so straightforward and is a harder case to win. Yet, this would mark the first time that anyone is trying to make the folks who do business with Dick accountable for his bad boy behavior.

Here, Plaintiff Tucker is trying to rope them in along with Dick under a theory called “vicarious liability” where one person is held liable for the actions of another. And Tucker is making a big deal of the fact both UTA and Trees knew of Dick’s bad boy behavior and that they still arranged shows for him just so they can make money off his bad behavior.

But the catch here is that “vicarious liability” claims usually cover master-servant relationships, as in employer or employee situations where the employee is subject to the “control” and direction of the employer. In this case, Dick as a comedian is more of an independent contractor doing business with UTA and Trees, and is not their employee.

Plus, when we are dealing with an intentional (mis)conduct, like the actions taken by Dick in this case, it is pretty hard to show that one person authorized another to commit a wrongful act (or “tort”), especially when the person who committed the wrongful act is not an employee but an independent contractor. Again, since Dick is not an employee of either UTA or Trees, and he is not subject to their control and direction in the way he did his job as a comedian, Tucker’s claim against them for negligence in choosing to work with Dick despite their knowing about his past behavior likely won’t get far.

But of all the claims against Dick’s business partners here, the case against Trees for premises liability is the one that in other circumstances might have some legs. This is because having paid money to watch the show, Tucker is an “invitee” to the club and Trees, as an occupier of land, owes him a duty to take steps to keep the premises safe for his visit. Yet, that duty does not cover all circumstances and would only extend to dangers that the club owner could actually prevent. This is because Trees is not an insurer for Tucker or anyone’s safety.

And regardless of what Trees may have known about Dick’s past behavior, it is hard to show that Trees could have foreseen and prevented Dick’s sudden and unexpected mistreatment of a member of the audience who had merely asked for his autograph. After all, it’s not as if we are not talking here about a loose overhead electric bulb falling onto Tucker’s head – quite simply, Dick is the problem here. Period!

In the end, the obvious lesson for comedians from this case is that as far as consequences go, there is a line between what they say and what they do – whether onstage or offstage. Translation: though they may not get in trouble for making offensive and outrageous remarks while doing a shtick onstage (thanks to the First Amendment), comedians – just like everybody else –  may yet get in trouble for acting out in physical ways.