Monday, July 11, 2022
We have covered this case before, but it is a useful reminder of the power of releases.
In 2018, Roy Moore, former Chief Justice of the Alabama Supreme Court, former U.S. Senate candidate agreed to be interviewed by Sacha Baron Cohen. As is his wont, Baron Cohen misrepresented the purposes of the interview. He pretended to be an Israeli intelligence offer, and he lured Judge Moore into the interview by claiming that the purpose was to present the Judge with an award for his support of Israel. During the interview, Baron Cohen produced an instrument that he claimed Israel had developed to detect underground tunnels. Baron Cohen then claimed that it could also detect pedophiles, and, sure enough, it started beeping whenever help up close to Judge Moore's body. Judge Moore's alleged stalking of women as young as 14 had been an issue in his election campaign.
The interview did not go well, as you can see below, and the problems go well beyond Baron Cohen's mock unibrow:
In its opinion, the Second Circuit points out the Judge Moore signed a standard consent agreement, which provided in relevant 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).
Judge Moore crossed out other language in the Release, but the Second Circuit agreed with the District Court that he agreed to enough to bar his claims for defamation, infliction of emotional distress, and fraud.
Judge Moore claimed that the entire agreement was the product of fraudulent inducement, but any such claim was barred under New York law because, in the Release, Judge Moore also confirmed that he was not not "relying upon any promises or statements made by anyone about the nature of the Program or the identity, behavior, or qualifications of any other participants, cast members, or other persons involved in the program,” and that he was “signing this agreement with no expectations or understanding concerning the conduct, offensive or otherwise, of anyone involved in this Program.” The Second Circuit also agreed with the District Court's rejection of Judge Moore's arguments that New York law does not enforce general releases. This was not a general release. It specifically released the defendants from the very claims Judge Moore sought to bring.
Judge Moore's wife's claims of intentional infliction of emotional distress were barred under the First Amendment. Judge Moore is a public figure and, given his candidacy for public office, the subject matter of the segment was clearly of public concern. The court found that "no reasonable person" could have taken it seriously. Thus, while the representation that the "pedophile detector" was a reliable device was clearly false, in context, nobody would have thought otherwise.
We may have to revisit this doctrine in a world in which many people believe that "you can't trust the media." In our current environment, Sacha Baron Cohen is at least as reliable a source as George Stephanopoulos. I once was engaged in a political debate with a former student, and he pointed me to an article from the Babylon Bee. When I informed him his source was satire, and he might was well be citing The Onion, he responded, "What difference does that make?" At that point, I knew that I had lost. And that all was lost.