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: , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

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

Subscribe: RSS Leave a comment
23 Comments
This comment has been deemed funny by the community.
Thad (profile) says:

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.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

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.

sumgai (profile) says:

Re: 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.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: 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.

Leave a Reply to Stephen T. Stone Cancel reply

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...
Older Stuff
09:32 Why Moderating Content Actually Does More To Support The Principles Of Free Speech (76)
09:30 Trumpists Admit That Their Own Social Media Platforms Aren't Much Fun When They Can't Use Them To Own The Libs (79)
15:36 On Elon Musk And Free Speech (164)
12:12 The 'Culture Of Free Speech' Includes Criticism Of Others' Speech; Get Over It (284)
13:30 Cops Who Sued Journalist For Reporting On Their Poor Handling Of A Rape Case Lose Their Defamation Lawsuit (40)
10:48 Jehovah's Witnesses Abusing Copyright Subpoena Process To Unmask Critics (16)
15:35 Devin Nunes Loses Appeal Of SLAPP Suit Against Liz Mair (16)
13:33 First Amendment Group Tells Appeals Court University Officials Shouldn't Have Access To Qualified Immunity (15)
09:32 Appeals Court Smacks Down Unconstitutional Injunction Obtained By A Lawyer To Silence Someone Who Left A Negative Review (13)
10:45 Senator Klobuchar's Next Unconstitutional Speech Control Bill: The NUDGE Act (37)
09:30 EARN ITs Big Knowledge 1st Amendment Problem (40)
13:31 Court (For Now) Says NY Times Can Publish Project Veritas Documents (43)
10:49 Terrible Vermont Harassment Law Being Challenged After Cops Use It To Punish A Black Lives Matter Supporter Over Her Facebook Posts (14)
10:43 UK Government Refreshes Its Terrible 'Online Safety Bill,' Adds Even More Content For Platforms To Police (43)
09:37 Court Grants Qualified Immunity To Officer Who Told Couple To Take Down Facebook Post About Off-Duty Cop Who Shot Their Dog (18)
10:50 Tenth Circuit Tells College Administrator That Ordering A Student To Stop Talking About An Instructor Clearly Violates The First Amendment (28)
06:07 Small Alabama Town's Overzealous Traffic Cops Also Monitored Internet Traffic To Threaten Critics Of The Corrupt PD (43)
10:53 Explainer: The Whole Spotify / Joe Rogan Thing Has Absolutely Nothing To Do With Section 230 (56)
10:56 Governor Inslee Wants To Jail Politicians Who Lie? What Could Possibly Go Wrong? (39)
10:41 Georgia Sees Florida & Texas Social Media Laws Go Down In 1st Amendment Flames And Decides... 'Hey, We Should Do That Too' (65)
13:40 Harrison Greenbaum Latest Trick: Having Paul Levy Respond To Criss Angel's Thuggish Legal Threat (10)
12:12 Small Nebraska Town Pays $16,000 To Resident It Attempted To Sue Into Silence (19)
11:18 Pennsylvania Court Reverses Student's Expulsion Over A Snapchat Post, Reminds School Students Still Have Rights (27)
09:35 Sculptor Of Pillar Of Shame Announces It's Now Public Domain So That Anyone Can Make A Copy, As Chinese Authorities Seek To Destroy It (14)
09:23 Klobuchar's Silly Letter To Facebook Raises 1st Amendment Issues And Only Gives Ammo To Misinfo Peddlers That Facebook Is A State Actor (27)
10:40 Confused Judge Grants Project Veritas' Prior Restraint Against The NY Times (67)
09:31 Robert Reich Loses The Plot: Gets Basically Everything Wrong About Section 230, Fairness Doctrine & The 1st Amendment (95)
11:58 No, The Arguments Against Florida's & Texas' Content Moderation Bills Would Not Block All Internet Regulations (27)
09:33 Canada Strikes Again: Allows Lawsuit Against Twitter To Proceed Over Speech Of Twitter Users (43)
09:20 Rep. Thomas Massie Seems To Have Skipped Over The 1st Amendment In His Rush To 'Defend' The 2nd (95)
More arrow