Court To Judge Roy Moore: You're Not Defamation-Proof, But This Contract You Signed Sure Is

from the always-read-the-fine-print dept

Judge Roy Moore -- former Senate hopeful and twice-removed-for-misconduct Alabama Supreme Court justice -- has lost his lawsuit against satirist Sacha Baron Cohen. Having agreed to be on the receiving end of some satire (albeit not knowingly), Roy Moore sued Cohen after falling victim to a prank in which Cohen (performing as his character General Erran Morad) waved an electric wand he claimed could detect sexual predators. The wand beeped while close to Roy Moore.

The bit was, of course, a reference to the cascade of sexual misconduct allegations that rained down on Roy Moore during his run for a Senate seat. Moore claimed that he never would have agreed to this if he hadn't been duped by Cohen and his production team into thinking he was actually in New York City to receive a prestigious award for his "strong support of Israel." Moore also claimed the pedophile wand beeping in his presence was defamation -- and $95 million of it at that.

Well, it isn't defamation and if there was any duping (and there was), Roy Moore agreed to it. The New York federal court handling the lawsuit brought by Moore and his wife, Kayla, has dismissed the case with prejudice, using both contract law and the First Amendment to do so.

Moore's claims fail because he signed a Standard Consent Agreement (SCA) in which he agreed to do (and, more importantly, not do) several things. Because this agreement was willingly signed, all three of Roy Moore's claims (infliction of emotional distress, fraud, defamation) have already been waived.

Here's the court [PDF] spelling it out the details Moore apparently failed to read when he signed the agreement:

Not only does the SCA set forth a clear waiver of any claims “related to the Program,” but the contract even enumerates certain waived claims, including the very three pleaded in this case. Paragraph 4 of the SCA reads:

[Judge Moore] specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Program, which are related to the Program or its production, or this agreement, including, but not limited to, claims involving assertions of . . . (h) infliction of emotional distress (whether allegedly intentional or negligent), . . . (m) defamation (such as any allegedly false statements made in the Program), . . . (p) fraud (such as any alleged deception about the Program or this consent agreement) . . . .

Moore did have the presence of mind to strike through a portion of the contract related to sexual behavior, but it doesn't help him.

Confronted with these unambiguous waivers of his only causes of action, Judge Moore turns to language he apparently struck through in another provision of Paragraph 4, which concerns an entirely different potential cause of action, “intrusion or invasion of privacy.” SCA ¶ 4(f). With this modification, the provision reads that Judge Moore waives any claims related to the Program

involving assertions of . . . (f) intrusion or invasion of privacy (such as any allegedly sexual-oriented or offensive behavior or questioning) . . . .

Judge Moore contends that this alteration somehow modifies the entire SCA to permit him to bring the causes of action alleged in the Complaint. The Court disagrees. The modification to Paragraph 4(f) of the SCA at most reflects an agreement of the parties to exempt from waiver an intrusion or invasion of privacy claim based on “any allegedly sexual oriented or offensive behavior or questioning.” But Judge Moore has not brought such a claim. And the modification does not pertain to the three causes of action—defamation, intentional infliction of emotion distress, and fraud—that Judge Moore in fact has pleaded.

That does it for Moore's claims. He explicitly agreed to not do the thing he's did: sue Baron Cohen for IED, fraud, and defamation. The court says the contract is enforceable under New York law, which means Moore is completely out of luck.

However, his wife -- Kayla Moore -- did not sign this agreement. But her claims of defamation are foreclosed by the First Amendment, which not only protects satire, but very heavily protects commentary on issues of public interest. Even if the assertion (which was made mainly by inference and some very suspect beeping from a very suspect electronic device) is possibly injurious, the question is whether anyone would take Cohen's satirical mockery as an assertion of fact.

In light of the context of Judge Moore’s interview, the segment was clearly a joke and no reasonable viewer would have seen it otherwise. The segment began with an absurd joke (i.e., “Gen. Erran Morad” boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare), followed soon by footage of numerous news reporters commenting on the accusations brought against Judge Moore. At this point, it should have been abundantly clear to any reasonable viewer that Defendants were using humor to comment on those accusations, rather than making independent factual assertions or even remarking on the truth or accuracy of the allegations. The actual interview of Judge Moore then became even more absurd. No reasonable viewer would have interpreted Cohen, in his over the-top “Erran Morad” character, waving a wand that supposedly detects enzymes emitted by pedophiles in the vicinity of Judge Moore as stating facts about Judge Moore. Nor would a viewer have reasonably believed that this gadget—which “Erran Morad” contended also was able to detect hidden tunnels used by terrorists—doubled as a device that also could detect enzymes secreted by pedophiles.

The other context that matters is the subject matter:

Cohen’s conduct during the interview with Judge Moore was related to press reports of accusations against Judge Moore of sexual misconduct involving young females, with this media coverage occurring while Judge Moore was campaigning for the U.S. Senate. The episode at issue began with footage of news agencies reporting these accusations against Judge Moore, followed by a clip of a public endorsement of Judge Moore’s candidacy. These matters are of public concern and are therefore protected by the First Amendment.

That does it for this lawsuit, at least for the moment. It has been dismissed with prejudice. The decision can be appealed but Moore can't do a bit of editing and mount another attempt to sue Cohen for these claims.

Getting suckered never feels good but being publicly embarrassed is rarely actionable. And when you're already traveling the path of the pariah, it's pretty tough to argue you've lost $95 million in reputation to someone who appealed to your ego, knowing it would likely blind you to the obvious.

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Filed Under: 1st amendment, contracts, defamation, free speech, kayla moore, roy moore, sacha baron cohen, satire


Reader Comments

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  1. icon
    Thad (profile), 14 Jul 2021 @ 12:13pm

    But that can't be right. Someone in the comments assured me that Roy Moore had a colorable claim because, quote, "Cohen isn't sweetness and innocence."

    If the "sweetness and innocence" doctrine is not the bulletproof legal argument that an Internet Lawyer told me it was, then I don't even know what I believe anymore.

    link to this | view in thread ]

  2. icon
    Stephen T. Stone (profile), 14 Jul 2021 @ 12:16pm

    Cohen should do something special to celebrate his win. Perhaps he could go shopping at the Gadsden Mall.

    link to this | view in thread ]

  3. identicon
    Anonymous Coward, 14 Jul 2021 @ 12:23pm

    Satire?

    After seeing what happened at the Capitol on 1/6, I'm pretty sure there are at least some people that will believe anything at face value.

    link to this | view in thread ]

  4. icon
    Samuel Abram (profile), 14 Jul 2021 @ 12:25pm

    Re: Satire?

    I think the people who ransacked the Capitol on the 6th of January could be excluded from every definition of "a reasonable person".

    link to this | view in thread ]

  5. identicon
    Anonymous Coward, 14 Jul 2021 @ 12:30pm

    Ah, the famous "I was too stupid to realize it's a joke" defense.

    link to this | view in thread ]

  6. icon
    That One Guy (profile), 14 Jul 2021 @ 1:10pm

    I'm actually surprised that Cohen's lawyers aren't going after Moore to recoup their legal costs given that Moore sued over something he signed a contract saying he wouldn't sue over, which that strikes me as something that would make for a pretty slam-dunk case, though perhaps that'll be in a follow-up counter-lawsuit.

    link to this | view in thread ]

  7. identicon
    Baron von Robber, 14 Jul 2021 @ 1:32pm

    I'm beginning to think that before hiring any lawyer, you should first find out they are a GQP member. It's pretty obvious they suck at being lawyers, suck at wining lawsuits, etc.

    Horrible, just horrible win-loss ratios.

    link to this | view in thread ]

  8. icon
    That One Guy (profile), 14 Jul 2021 @ 1:51pm

    Re:

    Yes and no, if the goal is to win the lawsuit then some lawyers are clearly better than others, but on the other hand if the lawsuit is just a PR stunt and is merely being used as a prop for other stuff like fundraising and/or to rile up the gullible for personal/political gains then what you're going to be looking for in a lawyer is something else entirely as you want someone who'll turn the thing into a spectacle even if it doesn't help your case because the legal half isn't the point.

    link to this | view in thread ]

  9. icon
    That Anonymous Coward (profile), 14 Jul 2021 @ 2:05pm

    Those liberal court bastards only did this because he's a conservative!!!!!!!!
    We should disband the courts!!

    link to this | view in thread ]

  10. identicon
    Baron von Robber, 14 Jul 2021 @ 2:17pm

    Re:

    I feel a disturbance in the force. As if millions of Trump supporters agreed with you and suddenly went silent, dying from COVID...carry on. :)

    link to this | view in thread ]

  11. icon
    Stephen T. Stone (profile), 14 Jul 2021 @ 2:27pm

    Sad thing is, you could probably find some people to sincerely agree with you.

    link to this | view in thread ]

  12. icon
    Toom1275 (profile), 14 Jul 2021 @ 4:50pm

    Reminder: the only false accusation against Moore was Project Veritas's undercover agent, who failed to trick WaPo into printing her story because they did their due diligence to make sure what they were foing to print was true.

    link to this | view in thread ]

  13. identicon
    Whoever, 14 Jul 2021 @ 6:38pm

    What he struck out is telling

    What he struck out suggests that he was expecting accusations of sexual misconduct. I wonder why?

    link to this | view in thread ]

  14. identicon
    Pixelation, 14 Jul 2021 @ 6:51pm

    Dowsing

    Judge Roy Moore falls victim to the waving of the wand. Next time, he may want to keep the wand in his pants.

    link to this | view in thread ]

  15. icon
    PartTimeZombie (profile), 14 Jul 2021 @ 7:22pm

    I don't understand

    Can anyone tell me why someone who has been removed from office for judicial misconduct not once, but twice, gets to be called "Judge Roy Moore"?

    link to this | view in thread ]

  16. identicon
    ryuugami, 14 Jul 2021 @ 7:34pm

    Re:

    It's a self-selecting filter. If your case sucks that badly, a good lawyer will refuse to take it in the first place.

    link to this | view in thread ]

  17. icon
    deadspatula (profile), 14 Jul 2021 @ 7:59pm

    Re:

    The suit was struck down at the motion to dismiss stage, so they will likely file a request for fees, but they are also likely not worth the cost of further litigation.

    link to this | view in thread ]

  18. icon
    That One Guy (profile), 14 Jul 2021 @ 8:33pm

    Re: Re:

    He tried to squeeze them for ninety-five million dollars in this lawsuit, asking the court to force him to pay their legal fees seems like a worthwhile effort to make after that if only to send the message that trying to shake them down via bogus lawsuits is not a risk-free endeavor.

    link to this | view in thread ]

  19. icon
    sumgai (profile), 14 Jul 2021 @ 8:53pm

    Re: Re:

    .... they will likely file a request for fees, but they are also likely not worth the cost of further litigation.

    Tell me, when have you ever known a lawyer to walk away from money on the table???

    And remember, if the court agrees with the fees requested, then if Uncle Roy refuses to pay up, he will only be compounding the final number of dollars that leave his bank account.

    link to this | view in thread ]

  20. identicon
    Anonymous Coward, 14 Jul 2021 @ 8:57pm

    Re: I don't understand

    Because it hearkens back to Judge Roy Bean.

    link to this | view in thread ]

  21. icon
    sumgai (profile), 14 Jul 2021 @ 8:59pm

    Re: I don't understand

    .... gets to be called "Judge Roy Moore"?

    He has a Trademark on the whole name, "Judge" must be included whenever one is referring to him.

    link to this | view in thread ]

  22. identicon
    Pixelation, 14 Jul 2021 @ 10:09pm

    Re: I don't understand

    " Can anyone tell me why someone who has been removed from office for judicial misconduct not once, but twice, gets to be called "Judge Roy Moore"?"

    Sounds like a judge that ruled on police misconduct cases...

    link to this | view in thread ]

  23. icon
    That Anonymous Coward (profile), 15 Jul 2021 @ 8:44am

    Re:

    Whats the downside?
    Y'all act like I've never founded a cult before & when things got to weird mixed up a batch of flavoraid and walked away.

    Imma sociopath, they have no value to me beyond the entertainment of them self removing from society.

    link to this | view in thread ]


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