Do Sacha Baron Cohen's Targets Have a Shot at Winning a Lawsuit? (Guest Column)

Sacha Baron Cohen El Hormiguero - Getty - H 2018
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"Thank you to every American who has not sued me … so far."
 — Sacha Baron Cohen, Golden Globes acceptance speech, 2007

Sacha Baron Cohen's cinematic exploits as Ali G, Borat and Bruno have been a lightning rod for litigation. After Borat premiered in 2006, some of those finding themselves the unwitting butt of Cohen's jokes sought recourse in court, seeking money damages or even injunctions against the release of Cohen's film. Most of their claims failed.

Cohen's newest project, Who Is America?, appears poised to be no different. The series only debuted on Showtime last weekend, but already some of Cohen's interviewees are rattling their legal sabers. Most prominently, Republican politicians Sarah Palin and Roy Moore have publicly claimed that they were "duped" by Cohen — and they are not happy about it. Palin has been blasting Cohen on social media, and Roy Moore has openly threatened to sue Cohen. But does Moore or anyone else hoodwinked by Cohen have a shot at prevailing in court?

The short answer is that Cohen's "victims" face an uphill battle. Most of the lawsuits spawned by Borat and Bruno a decade ago were thrown out in their infancy. This is due in part to clever lawyering by Cohen's attorneys, and in part due to longstanding legal doctrines protecting free speech and expression. The failed lawsuits against Cohen and his collaborators illustrate why.

Among those who sued Cohen were a driving instructor taken on a wild ride by Borat, an etiquette instructor flabbergasted by Borat's uncouth manners, two fraternity brothers in South Carolina who made racist remarks after getting drunk with Borat, and the director of a bingo hall in Palmdale, California, that was commandeered by Bruno. Judges dismissed each of their lawsuits in the very early stages of litigation.

The first legal obstacle that tripped up Cohen's interviewees was their own signatures. Before filming, most of the plaintiffs signed legal releases entitled "Standard Consent Agreement" or something similar. In those contracts, the interviewee agreed that he or she "waives, and agrees not to bring at any time in the future, any claims against the Producer … or anyone associated with the Film, that include assertions of" every conceivable cause of action that Cohen's attorneys could come up with. So when the litigants sued Cohen and his cohorts, they were immediately confronted with the fact that they had agreed in writing not to do so.

You might be wondering whether these folks weren't tricked into signing the release forms in the first place. In legalese this is called "fraudulent inducement," and it can sometimes be used to void a contract. But Cohen's lawyers anticipated that argument. The consent agreements included a clause stating that in signing the release, "the Participant acknowledges that in entering into [the Agreement], the Participant is not relying upon any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film." So the courts found that the Borat subjects waived their rights to that argument too.

But — let's be real — nobody reads the fine print, right? Plaintiffs tried that argument as well. The driving instructor blamed it on the fact that he didn't bring his reading glasses, the etiquette teacher claimed that the producers rushed her into signing the agreement, and the frat bros claimed that Cohen had gotten them drunk before presenting them with the releases. Like each of those plaintiffs, you probably didn't read all 1,000 pages of your mortgage disclosures, or your mobile phone contract, or your employee handbook. But on the legal front, by and large, that doesn't matter: You signed the papers. And in court, as in life, word is bond.

So the courts held the "victims" to their release contracts and tossed their suits out. Whether more high-profile (and possibly more careful?) interviewees like Palin and Moore signed similar releases remains to be seen. But if they did, their legal claims may be dead on arrival.

The second major impediment to any lawsuit against Cohen is the First Amendment to the U.S. Constitution. The First Amendment guarantees the right to free speech and free expression. In court, it can be a strong headwind against plaintiffs trying to sue a defendant for works like Borat or Who Is America? that are protected by the right to free speech.

To start, the majority of U.S. states have enacted what are called "Anti-SLAPP" laws, which stands for "strategic litigation against public participation." The gist of these statutes is to make it harder for anyone to sue someone for exercising a constitutionally protected right, like the right to free speech — particularly on matters of public concern.

California's anti-SLAPP statute spelled the end of the South Carolina fraternity brothers' lawsuit. The Los Angeles Superior Court judge presiding over the case found that "it is beyond reasonable dispute (and undisputed) that the topics addressed and skewered in the movie — racism, sexism, homophobia, xenophobia, anti-Semitism, ethnocentrism and other societal ills — are issues of public interest, and that the movie itself has sparked significant public awareness and debate about these topics." And if the reactions of a couple of drunken knuckleheads to Borat's provocations are a protected matter of public interest, then it is hard to believe that the reactions of Sarah Palin or Roy Moore would be any less so.

To make matters even worse for Palin and Moore, public figures usually have fewer arrows in their legal quiver against those depicting them in print, film and other media. For example, public figures face a much higher burden when it comes to proving up any claim for defamation of character. And the standard battery of other torts that Cohen's interviewees might invoke — like invasion of their right to privacy or publicity — are premised on the idea that private citizens have a right to privacy. But, as you might guess, the privacy of public figures like Palin and Moore is entitled to less legal protection because they are, well, public figures.

And that's where the "newsworthiness" exception comes in. If a defendant's portrayal of an individual is "newsworthy," then it is generally protected by the First Amendment and cannot give rise to civil liability. In dismissing claims arising from Borat, a federal judge in Manhattan summarized as follows: "Borat attempts an ironic commentary of 'modern' American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from 'average' Americans."

By that reasoning, every person depicted in Borat and Who Is America? — from bystanders off the street to Sarah Palin — would be newsworthy to the extent that their inclusion furthers the message of the film. This provides serious legal cover to Cohen and his team.

Lastly, anyone suing Cohen and company would have to prove that they were actually harmed by being tricked into appearing on Who Is America? Both Palin and Moore have complained that they flew across the country to interview with a person they only later learned was one of Cohen's made-up personas. But Moore has already made clear that the expenses were all covered by Cohen and his collaborators, so Moore is apparently not out any money.

Which begs the following question: Can Moore or any other unhappy participant seek damages for embarrassing words that came out of their own mouths? That remains a conundrum for a jury.

Zachary Elsea is an attorney at the entertainment and intellectual property law firm Kinsella Weitzman Iser Kump & Aldisert in Santa Monica. He is a graduate of Harvard Law School and has handled all phases of complex business and intellectual property disputes in venues across the country.