As part of his television show on Showtime called “Who Is America,” Sacha Baron Cohen convinced former Chief Justice of the Alabama Supreme Court, Judge Roy Moore, to fly out to Washington D.C for an interview. Although Judge Moore was told that the interview was for an “Israeli Television program,” he was actually to be interviewed by Cohen himself to be featured in a comedic episode which began with news clips about Judge Moore’s pedophelia. During the interview, Cohen made reference to a fictional device that detects sex offenders and began waving around a wand-like object that Cohen told Moore was such a device. After abruptly exiting the set, Judge Moore and his wife, Kayla Moore, promptly filed suit against Cohen, Showtime, and CBS, claiming intentional infliction of emotional distress, fraud, and defamation. On July 13, 2021, the District Court for the Southern District of New York decided in favor of Cohen, and Judge Moore and his wife appealed.
The District Court threw out the majority of Judge Moore’s claims on July 13, 2021, because Moore signed a “Standard Consent Agreement” (SCA) before his interview. Although he did not know the true purpose of the interview, the Court found that he knew that the interview would be televised. The SCA specifically states that “in entering into the SCA, the Participant is 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, cast members, or other persons involved in the program.” In other words, Moore agreed that he was not relying upon any representation about the “nature of the program” (including whether it was or was not an Israeli TV program).
Judge Moore predictably argued that the SCA was unenforceable because his consent was procured by fraud (i.e., Cohen had misrepresented that the interview was for an Israeli TV program when it wasn’t). However, applicable New York law stands for the proposition that a party may not claim that he was defrauded into entering into a contract when the contract has a provision negating any possible reliance upon the very representation that the party claims he relied on. In other words, as per the SCA, Judge Moore was not guaranteed to have an interview with an Israeli Television Program about any particular matter and was not correct in relying upon anything that gave him the impression that he would.
As far as Kayla Moore’s claim, the District Court decided that the First Amendment barred her claims due to the fact that the interview was about a matter of public concern protected by the First Amendment. The Second Circuit Court of Appeals further agreed with the District Court that the nature of the show was clearly comedic and that no reasonable viewer would conclude otherwise.
On July 7, 2022, after a careful analysis of the District Court’s decision, the Second Circuit Court of Appeals affirmed the decision of the US District Court for the Southern District of New York in favor of Cohen on all claims.
The Moores are represented by Larry Klayman of Klayman Law Group PA and Melissa Isaak of the Isaak Law Firm.
Cohen, Showtime, and CBS are represented by Elizabeth A. McNamara, Rachel F. Strom, Eric J. Feder, Carl Mazurek of Davis Wright Tremaine LLP, and Russell Smith and Jeff Holmes of SmithDehn LLP.
The case is Moore et al. v. Cohen et al., case number 21-1702, in the U.S. Court of Appeals for the Second Circuit.
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