MANHATTAN (CN) — Roy Moore may not have liked being the butt of the joke, but that doesn’t earn him a $95 million defamation case over a mock interview cooked up by the comedian Sacha Baron Cohen.
“We agree with the District Court that the segment at issue was clearly comedy and that no reasonable viewer would conclude otherwise,” three judges from the Second Circuit wrote in a unanimous 11-page ruling published Thursday.
The segment was part of a 2018 episode of Cohen’s limited-run satirical series for Showtime, “Who Is America?”
Moore, a former judge in the Supreme Court of Alabama, was invited to Washington, D.C., purportedly to receive an award for his support of Israel. The Israeli general with whom Moore sat for an interview, however, was in fact Cohen in disguise.
Posing as a “counterterrorism expert” in the segment, Cohen tells Moore about the supposed newest device in Israeli military technology: a pedophile detector wand.
Moore walked off the set in a huff as the device beeped persistently whenever waved around him. A year earlier, the ex-Alabama judge saw his Senate run thwarted by sexual misconduct allegations involving underage girls, including one woman who accused Moore of initiating a sexual encounter when she was just 14 years old; Moore was 32.
“I’m not saying you’re a sex offender at all,” Cohen goads Moore in the clip.
As the appellate panel noted Thursday, the segment opened with news clips of the allegations against Moore, “and what followed was an attempt to comment on those allegations through humor.”
“Baron Cohen may have implied (despite his in character disclaimers of any belief that Judge Moore was a pedophile) that he believed Judge Moore’s accusers, but he did not imply the existence of any independent factual basis for that belief besides the obviously farcical pedophile detecting ‘device,’ which no reasonable person could believe to be an actual, functioning piece of technology,” the ruling states, affirming the summary judgment in Cohen’s favor in the Southern District of New York.
Moore signed a consent agreement with Yerushalayim TV, an entity Cohen created, and released the rights to bring the very claims he ultimately filed against Cohen, Showtime and CBS.
That Moore struck out one provision of the agreement does not nullify the release, the judges determined.
“Judge Moore argues that because he modified a different provision of the waiver agreement, concerning a different potential cause of action, the plain language of the contract does not mean what it says,” the ruling states. “We disagree, and like the District Court we see no ambiguity in Moore’s release of all claims asserting infliction of emotional distress, defamation, and fraud — the only causes of action asserted here.”
As a result, Moore’s claim that he signed an “unenforceable general release” is irrelevant.
“Even if Judge Moore intended not to waive any claims arising from accusations of pedophilia or sexual misconduct, ‘a party’s subjective intent and understanding of the terms is irrelevant,’” the judges wrote, citing caselaw under HOP Energy.
Intentional infliction of emotional distress and fraud claims by Moore’s wife, Kayla Moore, are barred by the First Amendment. The claims against Roy Moore are a matter of public concern.
“Judge Moore has been a frequent candidate for political office and had just recently run for Senate at the time that the segment aired; allegations of wrongdoing clearly bore on his fitness for office.”
The $95 million suit was originally filed in Washington.
In his failed attempt to revive the case, Moore’s lawyer accused the appellate panel of looking at facts outside of the case.
“You’re actually calling my client a pedophile. That’s what you’re doing in effect,” attorney Larry Klayman, who runs an outfit called Freedom Watch, said during oral arguments.
Klayman is well-known for his vexatious litigation style on behalf of far-right causes. He argued to the panel that the real-life allegations against Moore are different than Cohen’s farcical interview, because the women who came forward against Moore stopped short of using the word “pedophile.”
“There’s nothing more heinous than being accused of being a pedophile,” Klayman argued, adding that “people jump off buildings” over such allegations. “It’s worse than calling someone a murderer.”
Meanwhile, though the judges ultimately found the show a clear-cut comedy, it wasn’t to all of their taste.
“Not very funny. This program was not very funny,” the Clinton-appointed U.S. Circuit Judge Rosemary Pooler said.
U.S. Circuit Judges Gerard Lynch and Raymond Lohier Jr. rounded out the panel.
Klayman did not return a request for comment on Thursday.
Follow @NinaPullano
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