Last month, Steve Mandell moderated a conversation with the attorney defending comedian Sacha Baron Cohen in a suit brought by the former Chief Justice of the Alabama Supreme Court, Roy Moore, and his wife. Mr. Moore alleged that Mr. Cohen, through his show Who Is America?, tricked him into believing that he was accepting an award for his support of Israel. Instead of presenting the award, Mr. Cohen (taking the persona of Israeli “anti-terrorism expert,” Erran Morad) asked Mr. Moore a series of questions, and demonstrated a device that purportedly could detect enzymes secreted by sex offenders. When the device activated near Mr. Moore, Mr. Moore declared that he has been “married for 33 [years] – and never had an accusations of such things,” and abruptly ended the interview.

Following this episode, Mr. Moore and his wife filed a suit (against Mr. Cohen and the show’s broadcasters) for intentional infliction of emotional distress and fraud, and Mr. Moore additionally filed a claim for defamation. On July 13, 2021, Judge Cronan of the Southern District of New York issued an opinion granting summary judgment in favor of Mr. Cohen and the other defendants. The court found that the agreement signed by Mr. Moore prior to appearing on the show expressly barred his claims for emotional distress, defamation, and fraud. As to Mrs. Moore’s claims, even though she did not sign any agreement or release, the judge found her claims to be barred by the First Amendment of the U.S. Constitution. Specifically, the court found that the First Amendment bars claims based on expressed opinions (as opposed to actual facts), especially in the context of political satire. The court reasoned that in this case, the First Amendment applied not only to defamation claims, but also to Mrs. Moore’s fraud and intentional infliction claims. It then reasoned that given the context of the program, the segment was “clearly a joke and no reasonable viewer could have seen it otherwise.” In other words, the segment did not make any false factual assertions, and was protected by the First Amendment.

Steve Mandell delved into these issues, and their legal implications for media defendants, as part of a lively discussion for the Media Law Resource Center.