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Showtime and Sacha Baron Cohen are asking a New York federal judge to toss the lawsuit Roy Moore filed following a segment featuring him on Who Is America? — in part, because he should have known the potential consequences of contractually waiving his right to sue.
The former Alabama Supreme Court Chief Justice, who earlier this summer announced he’s again running for U.S. Senate, in September 2018 filed a $95 million lawsuit against the premium cable network and the comedian. Moore claims he was tricked into flying to Washington under the guise of receiving an award and the July 29, 2018, segment defamed him. In it, Cohen is in character as Erran Morad and demonstrates a fictional device meant to detect pedophiles on Moore, a reference to Moore’s alleged sexual misconduct with an underage girl.
In April, Cohen and Showtime convinced the court the fight should be moved to New York. Now, they’re arguing it should be thrown out altogether. (Read the full motion below.)
“That segment commented facetiously about the public controversy over widespread news reports that Judge Moore had engaged in inappropriate relationships with young women,” writes attorney Elizabeth McNamara in the filing. “It was just one segment among many throughout the Program’s run in which Cohen, playing cartoonishly absurd characters, interacted with unsuspecting public figures in order to playfully — but pointedly — satirize American society and politics.”
McNamara argues the lawsuit flies in the face of long-standing First Amendment protection for political parody, and that Moore signed a standard consent agreement as a condition of participating that waived any claims related to the program or its production. To the second point, McNamara nods to a series of lawsuits filed against Cohen over Borat that were dismissed because of such waivers.
“The result here — involving the same performer and materially identical contractual terms — should be no different,” argues McNamara. “Indeed, the plaintiffs in the Borat cases were a driving instructor, etiquette trainers and dinner guests. 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 motion to dismiss notes that Moore crossed out parenthetical language waiving “intrusion or invasion of privacy (such as any allegedly sexually oriented or offensive behavior or questioning)” and initialed beside it. Writes McNamara, “It should be obvious that a handwritten deletion of language identifying one example of a possible invasion of privacy claim would have no effect on the independent waiver of entirely distinct causes of action for defamation, emotional distress or fraud.”
Separately, Showtime and Cohen reiterate the Constitutional protections for satire: “While perhaps uncomfortable — akin to Vice President [Dick] Cheney being asked to autograph a ‘waterboard kit’ in another segment — this is ‘fully protected satire’ of a controversial political figure, not actionable defamation.”
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