Just Because Someone Is An Idiot Doesn’t Mean It’s Ethical To Make A Fool Out Of Him: The Roy Moore Libel Suit Dismissal

The 2nd U.S. Circuit Court of Appeals at New York refused to revive a lawsuit filed by former Alabama Chief Justice and failed Senate candidate from Alabama Roy Moore (and his wife) against  comedian comedian Sasha Baron Cohen. Moore v. Baron Cohen  had its genesis when the “Borat” satirist and actor tricked Moore into traveling to Washington, D.C. to receive a fictional award for supporting Israel and to be interviewed for Israeli TV. It was all a set-up to ridicule Moore on an installment of Cohen’s Showtime production, “Who Is America?”

Cohen presented himself to Moore as an Israeli anti-terrorism expert with a high-tech military intelligence device ( he’s holding it above) that supposedly was able to detect pedophiles. Moore’s Senate run was crushed by credible allegations that he had sought relationships with underage teenage girls: the episode of the program in which the interview aired was introduced with news clips reporting those allegations, including one involving a fourteen-year-old girl at the time. In a cringeworthy confrontation, Cohen’s character waved “the pedophile-detector” over Moore as it beeped loudly. Moore then walked out of the “interview.” Moore and his wife sued for defamation and intentional infliction of emotional distress.

Cohen had obviously consulted some solid legal talent before springing his trap. Moore had not (though Moore, as a judge, was supposed to be legal talent.) He produced a waiver for Moore to sign before the interview, and Moore signed it. It read in part:

[Judge Moore] 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), … [or] (p) fraud (such as any alleged deception about the Program or this consent agreement).

All the courts ruled that Moore’s waiver barred his lawsuit. As for his wife, the Appeals Court wrote,

“[H]eightened First Amendment protections apply to any tort alleging reputational harm as long as the underlying speech relates to a matter of public concern.” … [T]he allegations against Judge Moore were 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….[T]he segment at issue was clearly comedy and that no reasonable viewer would conclude otherwise. The segment opened by referencing news clips of the allegations that Judge Moore had engaged in sexual misconduct, including with minors, 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. “Humor is an important medium of legitimate expression and central to the well-being of individuals, society, and their government. Despite its typical literal ‘falsity,’ any effort to control it runs severe risks to free expression as dangerous as those addressed to more ‘serious’ forms of communication.” Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems.

I have no quarrel with the decision; it’s clearly correct. Nonetheless, the orchestrated humiliation of Moore is indefensible from any ethical perspective. The reflex justification is “he deserves it.” Moore has a long dossier on Ethics Alarms (Yikes! It’s longer than I thought!) but he’s no longer a threat to the body politic, and the evidence of his slimy interactions with young women was plenty to discredit him without punking him on TV as well. Moore was a fool to sign that waiver, but then he is a fool, and we knew that already. Cohen, who can be an effective actor when he isn’t being a smug jerk, was just kicking a man who was already down and harmless. I’m sure he’s proud of himself.

One lesson of the generally distasteful episode: Republicans and conservatives, especially those on the senior side, are infamous for being out of touch with popular culture. What happened to Roy Moore is a direct result of that weakness.


Pointer: ABA Journal

2 thoughts on “Just Because Someone Is An Idiot Doesn’t Mean It’s Ethical To Make A Fool Out Of Him: The Roy Moore Libel Suit Dismissal

    • Oh come on, ME—your first assertion is clearly an overstatement: One of JFK’s victims came forward after 60 years, and many of Cosby’s victims held back decades. As for the second, Elizabeth Smart was rescued while in the control of her abuser—she couldn’t have avoided “coming forward” if she wanted to.

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