Comedian Sacha Baron Cohen defeated a defamation, emotional distress, and fraud suit because former US Senate candidate and Alabama Supreme Court Chief Justice Roy Moore waived the claims, the Second Circuit said Thursday.
The plain text of a standard consent agreement Moore signed before taping a segment of Cohen’s Who Is America? television program barred Moore’s suit, the US Court of Appeals for the Second Circuit said.
Moore’s stipulation that he didn’t rely on any representations made to him by Cohen, Showtime Inc., or CBS Corp. before the signing the consent agreement destroyed his claim that he was duped into signing it, the court said.
And, under New York law, a court must give effect to unambiguous contract terms, such as Moore’s release of the emotional distress, defamation, and fraud claims, the court said.
Cohen’s team invited Moore to appear on an alleged Israeli television program to receive a prize for supporting Israel. Cohen interviewed Moore in character as an Israeli anti-terrorism expert and former intelligence agent.
During the interview, Cohen produced a fictional device that he said could detect pedophiles. The device “beeped” when near Moore, who’d been accused of engaging in sexual conduct with underage women during his Senate campaign.
Cohen protested that he wasn’t accusing Moore of being a pedophile and that the device must be malfunctioning. Moore ended the interview and left the set.
Moore didn’t know the true purpose of the interview, but he knew it would be televised and signed the consent agreement, waiving all the claims he later alleged in his lawsuit, the court said. The waiver was enforceable under New York law, the Second Circuit said in its unsigned summary order.
Moore’s wife, Kayla, also failed to overturn her loss on emotional distress and fraud claims. Moore is a public person, and the allegations made against him were matters of public concern, the court said.
Furthermore, Cohen’s program couldn’t reasonably be interpreted as stating actual facts about Moore, the court said. The program was clearly comedy, it said.
Comedy typically is literally false, the court said. But “any effort to control it runs severe risk to free expression,” the court said, quoting Second Circuit Judge Robert D. Sack’s treatise on defamation law.
Klayman Law Group represents the Moores. Davis Wright Tremaine LLP represents Cohen, Showtime, and CBS.
The case is Moore v. Cohen, 2d Cir., No. 21-1702, unpublished 7/7/22.