The lawsuit concerned Judge Moore’s appearance on Who Is America?, Cohen’s latest comedy series on Showtime in which he disguises himself as various fictional characters and conducts interviews with certain unsuspecting individuals “on the political spectrum.” Judge Moore, believing he was to be the recipient of an award for his support of Israel, participated in an interview by Cohen, purporting to be an Israeli “Anti-Terrorism Expert” named “Gen. Erran Morad” (the “Program”). During the interview, “Morad” demonstrated a device that could allegedly detect certain enzymes that are secreted only by “sex offenders and particularly pedophiles.” When he moved the device closer to Judge Moore, the gadget started beeping. Judge Moore abruptly ended the interview, and he and his wife, Kayla Moore, sued Cohen for intentional infliction of emotional distress, fraud, and defamation.
Judge John Cronan, of the United States District Court for the Southern District of New York, granted Cohen’s motion for summary judgment on all of the Moores’ claims. The court held that Moore expressly waived the right to bring each of these claims in the consent agreement that he signed before participating in the interview. The court also rejected Judge Moore’s claim that he was fraudulently induced into signing the consent agreement, as the Moores “would never have come to Washington, D.C., nor would Judge Moore have appeared in the Program, had they known the truth about the nature of the Program and the identity of its producers and broadcasters.”
Cohen’s consent agreement required Judge Moore to agree that he was “not relying upon any promises or statements made by anyone about the nature of the Program or the identity, behavior, or qualifications of any other Participants,” and that Judge Moore signed the release “with no expectations or understandings concerning the conduct, offensive or otherwise, of anyone involved in this Program.” The court held that this language foreclosed any argument that Judge Moore relied on any specified representations, and thus he could not claim “that he was defrauded into entering the contract in reliance on those representations.” Indeed, the court in a previous case held similarly when presented with substantially the same language in a consent agreement signed by individuals portrayed in Cohen’s 2006 film, Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.
As to Moore’s wife, Kayla, who was not bound by the consent agreement, the court similarly rejected her claims as barred by the First Amendment. The court explained that “liability may not attach for ‘statements that cannot ‘reasonably [be] interpreted as stating actual facts,’” particularly “in the context of political satire when the target of the purportedly defamatory content is a public figure, given satire’s ‘prominent role in public and political debate.’” Here, “Cohen’s conduct during the interview with Judge Moore was related to press reports of accusations against Judge Moore of sexual misconduct involving young females, with this media coverage occurring while Judge Moore was campaigning for the U.S. Senate.” Such statements are on matters of public concern and thus are afforded heightened First Amendment protections.
Moreover, the court found that “the segment was clearly a joke and no reasonable viewer would have seen it otherwise.” The court explained that the Program “began with an absurd joke (i.e., ‘Gen. Erran Morad’ boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare)” before transitioning to the allegations against Judge Moore. This should have made it “abundantly clear to any reasonable viewer” that Cohen was “using humor to comment on those accusations, rather than making independent factual assertions.” Nor could any reasonable viewer believe that Cohen’s “Morad” character had a device that actually “detects enzymes emitted by pedophiles,” or that in wielding the device Cohen was “stating facts about Judge Moore.” As such, the court concluded that the Program “was not ‘a statement of opinion that is based on undisclosed facts,” that would be actionable by the Moores.
Cohen’s robust and forward-thinking consent agreement highlights the importance of drafting releases that are tailored to the conduct at issue and the potential causes of action that might arise from it. This is so particularly in the context of speech about public figures—as Judge Cronan did here, courts practice constitutional avoidance to avoid ruling on constitutional issues wherever possible. A strong consent agreement that affords a non-constitutional ground for dismissal eschews the need to delve into thornier First Amendment issues. The court’s ruling also illustrates the uphill battle public figures face in bringing defamation claims arising from comedic and satirical speech. Political satire is closely guarded by the First Amendment, and Judge Moore’s loss reinforces the difficulty of proving that the satirical material could reasonably be construed as objective facts susceptible to a defamation claim. Because “no viewer could have reasonably believed that Who Is America? was providing accurate news to its audience,” nor could the Moores circumvent the protections of the First Amendment.