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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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…….)