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.

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

Sixth Circuit Says School Board Can't Boot People From Meetings Just Because It Doesn't Like What They're Saying

from the seems-like-an-obvious-conclusion-but-here-we-are dept

Just because government officials may not like the tone of the criticism they're receiving doesn't mean they can use their government power to mandate civility. That's the determination of the Sixth Circuit Appeals Court, which has struck down part of an Ohio school board's rules of (public) engagement.

Following a school shooting in 2016, the Madison (OH) Local School District came up with a preventative plan -- one that involved allowing school staff to carry concealed weapons. This didn't play well with some parents. It also didn't play well with some of the district's students, who staged a walkout to protest gun violence. Following the discipline of those students, some residents decided to attend a school board meeting to express their feelings about the rule change and the punishment of students for their expressive speech.

Madison school district meetings are governed by the following "Public Participation Policy:"

Only Madison residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The Policy authorizes the presiding officer to:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;

2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

Plaintiff Billy Ison attended three meetings from March to May 2018. His May appearance resulted in the Board's actions that prompted this lawsuit. Here's how that evening went, according to the Sixth Circuit's opinion [PDF]:

A video of Billy Ison’s remarks there shows him turning to address the room and reading from a prepared speech, accusing the Board of “threaten[ing]” the school to punish the student protestors. He calls the Board’s justification offered at the prior meeting for punishing “a smokescreen intended to conceal their true motivation . . . to suppress all opposition to pro-gun views” and “push its pro-gun agenda.” And it depicts him accusing the Board of “taking a very strong position on guns” when it decided to arm staff.

The Board interrupted Billy twice during his remarks. First, [Board President David] French asked Billy not to use the word “threatening.” Second, after Billy accused the Board of concealing their “true motivation” for punishing students, another Board member asked him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.” French then asked Billy to stop and warned that if he continued, security would escort him out. Billy continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. As French later recalled the incident, Billy “was being basically unruly, not following the rules, being hostile in his demeanor.” He let Billy speak “until other people were starting to object and getting offen[d]ed by it.”

Ison sued, claiming the restrictions on speech were unconstitutional, enacted by the Board in hopes of stifling criticism. He argued the Supreme Court's recent decision involving the registration of disparaging trademarks prevents the government from targeting speech considered "abusive, personally directed, or antagonistic." The Appeals Court agrees with Ison's assertions.

In Matal, the Court struck down the Lanham Act’s prohibition on federal registration of trademarks that “‘disparage . . . or bring . . . into contemp[t] or disrepute’ any ‘persons, living or dead.’” 137 S. Ct. at 1751 (alterations in original) (quoting 15 U.S.C. § 1052(a)). Though split between two plurality opinions, all Justices agreed that the “anti-disparagement” clause discriminated based on viewpoint because “[g]iving offense is a viewpoint.” Id. at 1763 (Alito, J., opinion). The Iancu Court struck down another Lanham Act restriction on “immoral or scandalous” marks, finding it “permit[ted] registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts.” 139 S. Ct. at 2299. It reasoned that the act impermissibly “distinguishe[d] between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.” Id. at 2300. In short, these cases stand for the proposition that the government may not censor speech merely because it is “offensive to some.”

That this was an attempt to limit criticism of the Board and its members was made even more obvious by the testimony of the Board Director, who testified that "giving offense" was sufficient enough to move the Board to prevent the person from speaking further. Given this testimony and the undisputed video recording of Ison's comments and ejection from the meeting, the Appeals Court says the Board's participation policy -- at least in terms of its restrictions on certain forms of speech -- is unconstitutional.

The restrictions on “antagonistic,” “abusive” and “personally directed” speech prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment.

The court notes that this is not a blessing for ad hominem attacks in limited public forums. Attacking ideas and issues is one thing. Personally attacking individuals is quite another. The court says restrictions on this form of speech would likely still be permissible in many cases.

But tossing people from meetings or otherwise silencing them for being critical of government officials and their decisions definitely isn't permissible. And the Board will likely end up having to rewrite this to be a whole lot less infringe-y and whole lot more specific by the time the lower court is done handling the administrative duties of deciding on a proper remedy.

Filed Under: 1st amendment, 6th circuit, free speech, school board