Case Summary and Outcome

The US District Court dismissed Judge Moore’s and Kayla Moore’s claims of defamation, intentional infliction of emotional distress and fraud in a case against Sacha Baron Cohen, since their claims were barred by the Standard Consent Agreement (SCA) and the First Amendment respectively. Cohen interviewed Judge Moore in which he used a wand that supposedly detected enzymes secreted by sex offenders and pedophiles. Cohen’s conduct was related to press reports of sexual misconduct accusations against Judge Moore which surfaced during his 2017 election campaign. Judge Moore asserted that Cohen had defamed him by falsely painting him as a sex offender. While Judge Moore’s claims were barred by an agreement signed by him prior to the interview, his wife, Kayla Moore’s claims were barred by the First Amendment as the alleged conduct discussed issues of public concern. The court observed that claims of reputational injury stemming from satirical publications related to are usually dismissed since they do not contain statements that could be reasonably interpreted as stating facts by the viewers. In the present case, the court determined that Cohen’s interview was a “satire” on the sexual misconduct allegations faced by Judge Moore. The court noted that Cohen had a history of portraying “ridiculous characters conducting absurd interviews of seemingly unsuspecting individuals” in different episodes of the series ‘Who is America’. The court adjudged that it was “abundantly clear” to reasonable viewer that Cohen used humor to comment on the accusations against Judge Moore, and that he did not make any “independent factual assertions” or commented on the “truth or accuracy of the allegations”.

Facts

On February 14, 2018, the plaintiffs Roy Stewart Moore, the former Chief Justice of the Alabama Supreme Court, and his wife Kayla Moore participated in an interview with the defendant Sacha Noam Baron Cohen, which was later aired on television as a part of a comedy series “Who is America?”, broadcasted by other defendants, Showtime Networks Inc. and CBS Corporation. In this series, Cohen plays fictional characters “from across the political spectrum”. The series touches on various political issues in US, with Cohen interviewing various former and current politicians, lobbyists, and rights activists.

Decision Overview

Judge John P. Cronan of the US District Court Southern District of New York delivered this order. The main issue before consideration of the court was whether the plaintiffs’ claims of defamation and intentional infliction of emotional distress were barred by First Amendment.

Judge Moore asserted that Cohen had defamed him as Cohen “falsely painted, portrayed, mocked, and with malice defamed” him “as a sex offender”. [p. 5] Judge Moore and Kayla Moore also alleged intentional infliction of emotional distress and fraud, amongst various other claims. Kayla Moore’s claims stemmed from harm to Judge Moore’s reputation and her fraud claim alleged damage to her own reputation.

On the other hand, the defendants argued that the plaintiffs’ claims were barred by the waiver language in the SCA and that the claim fell under the First Amendment. The defendants further argued that the series “Who is America?” used political satire to comment on US news, which is protected by the First Amendment. They produced video of episodes in which Cohen disguised as an anti-terrorist expert, endorsed a program to arm three year old children with firearms to defend against school shootings; in another episode Cohen discussed “interrogation techniques” with a former Vice President of the United States, admitted to waterboarding his wife and then asked the former Vice President to sign his “waterboarding kit”; and in the same episode as Judge Moore’s, Cohen was seen teaching three men how to kidnap illegal immigrants by dressing them up as teenage girl and hosting a fake Quinceañera celebration.

The court determined that Judge Moore’s claims including the defamation claim were barred by SCA however Kayla Moore’s claims required consideration of First Amendment principles as she was not signatory to SCA. This required consideration of two questions: first, whether the First Amendment applied Kayla’s claims of intentional infliction of emotional distress and fraud claims; second, whether Cohen’s statements could have been reasonably interpreted as stating actual facts about Judge Moore.

The court noted that claims of “intentional infliction of emotional distress” and “reputational damage” brought by a “public figure” or “private figure in matter of public concern” fell within the ambit of the First Amendment as held by the Supreme Court in Hustler Magazine v Falwell, 485 U.S. 46, 56 (1988) and Snyder v. Phelps, 562 U.S. 443, 458 (2011). [p. 19]

Applying this to the present case, the court determined that Cohen’s show was a “commentary on matters of public concern.” [p. 21] The court observed that any speech that deals with “matter of political, social, or other concern to the community” or if it is “subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public” it could be considered as “public concern”. [p. 21] In the present case, the court noted that Cohen’s conduct was related to press reports of sexual misconduct accusations against Judge Moore involving young females. The court observed that the episode contained footage of news agencies reporting these accusations, followed by a clip of a public endorsement of Judge Moore’s candidacy. The court thus determined that these issues were matters of public concern, thereby falling under the protection of the First Amendment.

As per the court, this protection ensures that “[] public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’” which added to the discourse of the US, as observed in Milkovich case. [p. 19] The court referred to Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 13-14 (1970) and Flamm v. Am. Ass’n of Univ. Woman, 201 F.3d 144, 151 (2d Cir. 2000). In the former case, newspaper’s use of word ‘blackmail’ regarding a public figure’s conduct in heated town meetings was deemed as rhetorical hyperbole. However, in the latter case, the description of an attorney as an ambulance chaser in a directory of attorneys featuring concrete facts was deemed a factual assertion rather than hyperbole.

While citing Robert D. Sack’s book on defamation, the court highlighted that “humor is an important medium of legitimate expression……Despite its typical literal ‘falsity,’ any effort to control it runs severe risks to free expression……” [p. 20] The court also noted the “prominent role” of parody and satire in “public and political debate” and “social and literary criticism” as highlighted in the Falwell case, 485 U.S. [p. 20] In this case, the Supreme Court highlighted that satire, although based on “exploitation of unfortunate physical traits or politically embarrassing events” with the intention to “injure feelings of the subject” (as in the case of political cartoon or caricature), comments on social and political news and deserves to be protected under the First Amendment due to its effect “on the course and outcome of contemporaneous debate.” [p. 25] The court reiterated D.C. Circuit’s observations in Farah v. Esquire Magazine that “[s]atire’s unifying element is the use of wit to expose something foolish or vicious to criticism,” and may at times “seem cruel and mocking, attacking the core beliefs of its target.” [p. 22]

The court observed that reputational injury stemming from satirical publications are usually dismissed by courts because they do not contain statements that could be reasonably interpreted as stating facts. For instance, the court noted that in Mink v. Knox, 613 F.3d 995 (10th Cir. 2010), a student authored an editorial column under the name “Junius Puke” which displayed edited photographs of a university professor with the similar name of Junius Peake. The Tenth Circuit, in that case, found that the “editorial column addressed subjects on which Mr. Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake’s.” The Tenth Circuit held that the alleged statements “constituted satire in its classic sense,” and that “a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake.” [p. 23-24] Similarly, the court referred to New Times, Inc. v. Isaacks, wherein the Supreme Court of Texas protected a satirical article despite the article being published under the heading “News” in a section ordinarily “devoted to hard-hitting investigative news.” The Supreme Court noted that “[w]hile a reader may initially approach the article as providing straight news, [the article] contains such a procession of improbable quotes and unlikely events that a reasonable reader could only conclude that the article was satirical.” [p. 23]

The court adjudged that this segment with Judge Moore was “clearly a joke” [p. 24]. The court noted that the segment began with an “absurd joke” about Gen. Erran Morad killing a suicide bomber with an iPad 4, but had purchased AppleCare. The court observed that the joke was followed by footage of numerous news reporters commenting on the accusations brought against Judge Moore, which made it “abundantly clear” to any reasonable viewer that Cohen used humor to comment on those accusations. [p. 24]. The court highlighted that no “reasonable viewer” would believe that Cohen made “independent factual assertions” or commented on the “truth or accuracy of the allegations”. [p. 24] The court further noted that no reasonable viewer would interpret that the gadget used by Cohen’s “over- the-top “Erran Morad” character” could detect enzymes secreted by pedophiles. [p. 24]

The court noted that Cohen had a history of portraying “ridiculous characters conducting absurd interviews of seemingly unsuspecting individuals” in different episodes of the series “Who is America”. The court highlighted that the “primary intended audience” were familiar with “the defendant’s history of publishing satirical stories” as held in Farah v. Esquire Magazine, 736 F.3d. Therefore, the court remarked that no reasonable viewer could believe that ‘Who Is America?’ provided “accurate news” to its audience. [p. 25] For instance, during the same episode that featured Judge Moore, the court noted that “Cohen also taught three men how to kidnap illegal immigrants by having one of them dress up as a teenage girl and host a fake Quinceañera celebration”. [p. 25] Therefore, as held by the court, it was “simply inconceivable that the Program’s audience would have found a segment with Judge Moore activating a supposed pedophile-detecting wand to be grounded in any factual basis.” [p. 26]