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While Sacha Baron Cohen is racking up award nominations for Borat Subsequent Moviefilm, his lawyers are using its predecessor as an example of why a New York federal judge should end the $95 million defamation suit Roy Moore filed against him over a 2018 appearance on Who Is America? — arguing that not only does the suit implicate his free speech rights, but also he’s already shown his contracts are airtight when it comes to claims arising from his satire.
Moore in September 2018 sued Cohen, along with Showtime and CBS, in D.C. federal court over a segment that featured Cohen, in disguise as the character Erran Morad, interviewing the former Chief Justice of the Alabama Supreme Court and demonstrating a fictional device meant to detect pedophiles (a reference to allegations of inappropriate sexual encounters that surfaced during his failed U.S. Senate run).
The defendants were successful in moving the dispute to New York, and now are trying to convince U.S. District Judge John P. Cronan to throw it out.
“That segment commented facetiously on the public controversy over widespread news reports during Judge Moore’s Senate run in 2017 that he had engaged in inappropriate relationships with young women when he was in his thirties,” argues attorney Elizabeth McNamara in a motion for summary judgment filed Monday. “It was just one segment among many throughout the Program’s run in which Cohen, playing cartoonishly absurd characters, interacted with public figures in order to playfully — but pointedly — satirize American society and politics. … This lawsuit conflicts directly with the long tradition of First Amendment protection for political parody and satire of public figures—especially where the satirical work ‘could not reasonably have been interpreted as stating actual facts about the public figure involved.'”
Separately, they argue the suit should be tossed because Moore signed a standard consent agreement with Yerushalayim TV (a production company owned by Cohen) under which he expressly waived any claims related to the program against anyone associated with it.
“Plaintiffs cannot avoid enforcement of the SCA by arguing that it was ‘obtained through fraud’ because they were misled about the purpose of the interview of Judge Moore,” argues McNamara. “The SCA contains a clause expressly disclaiming any ‘rel[iance] upon any promises or statements made by anyone about the nature of the Program or the identity, behavior, or qualifications of any other Participants, cast members, or other persons involved in the Program.'”
The previous judge handling the matter denied a motion to dismiss the complaint because he didn’t have enough information about the relationship between YTV and the defendants. That’s been provided now and McNamara argues there’s no way Moore’s suit can survive — and cites previous previous suits against Cohen over Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan as proof.
“The result here — involving the same performer and materially identical contractual terms — should be no different,” writes McNamara. “Indeed, the plaintiffs in the Borat cases were a driving instructor, etiquette trainers, and a dinner guest; Judge Moore is the former Chief Justice of a state Supreme Court. He is well aware of the consequences of signing contracts, and should be held to his agreement.”
The full filing, which cites a few of Moore’s own decisions during his time as a judge, is posted below.
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