Former Alabama Chief Justice Roy Moore has long been an perpetual litigation machine. Indeed, Moore and his wife appear to have created a cottage industry out of being themselves — getting people to give them huge amounts of money to fight their enemies. I have been skeptical of these past lawsuits — as well as Moore’s often bizarre conduct. Now, after the prior lawsuit amounted to nothing, Moore is launching yet another lawsuit. The latest claim is based on Moore’s sitdown with comedian Sacha Baron Cohen for his Showtime series “Who is America?” Essentially, Moore is complaining that he made of fool of himself because Cohen tricked him. Moore has demanded $95 million in punitive and compensatory damages. Despite my long admitted aversion to Moore, the complaint does raise some interesting, and unresolved, legal issues. It also presents some risks for Moore himself.
Moore is suing in torts for defamation, intentional infliction of emotional distress and fraud. The allegations stem from accepting an invitation to be flown to Washington, D.C. ostensibly to receive an award for his support for Israel. Other Republicans like Sarah Palin fell for similar pitches.
Moore met with Cohen’s faux character, Israeli anti-terrorism expert Erran Morad, who proceeded to ask to discuss the prevention of pedophilia. That should have immediately tipped off Moore that this was a trick. If that was enough, Morad said that researchers found “pedophiles” secrete an enzyme at “three times the level of non-perverts” and that Israel “developed a machine that is used in schools and playgrounds to detect anyone coming in.” He then pulled out the wand and waved it over Moore. It then beeped as Morad said that he could not understand why it was registering a pedophile: “Is this your jacket? Did you lend the jacket to somebody else?”
Moore was nonplussed, saying “No. I’ve been married for 33 [years]. I’ve never had an accusation of such things. … If this is an instrument — certainly, I’m not a pedophile.”
Eventually (but rather belatedly), Moore get it and says “I am simply cutting this conversation right now. Good night. I support Israel. I don’t support this kind of stuff.”
Moore now says that the fake interview caused him reputational damage as well as “extreme emotional distress.”
The complaint states:
In order to fraudulently induce Judge Moore and Mrs. Moore to travel toWashington, D.C., where filming was to and did take place, and where the majority of acts pled herein occurred, on or about February 14, 2018, Defendant Cohen and his agents falsely and fraudulently represented to Plaintiff that Yerushalayim TV – which does not actually exist – was the producer and broadcaster of the show that Judge Moore would appear on, instead of the actual network that the show that later appeared on Showtime. In addition, Defendant Cohen and his agents falsely and fraudulently represented that Judge Moore and Mrs. Moore were both being invited to Washington, D.C., for Judge Moore to receive an award for his strong support ofIsrael in commemoration of its 70th anniversary as a nation state.
For the record, I find this type of juvenile gotcha programming reprehensible and remain mystified that Showtime would engage in such conduct. The problem for Moore is that he is a rather notorious public figure. Many believe that he is a pedophile. However, there are others who view him with great respect. He is not so notorious as to be “libel proof.”
Moreover, putting aside the possible application of the District of Columbia’s anti-SLAPP law, there is the fact that Moore is a public figure. New York Times v. Sullivan places public officials (and later public figures) under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. That makes it more difficult to prove defamation if you are a public figure.
It is not clear what if anything was signed by Moore in engaging in the interview. The usual waiver includes waivers for emotional distress and other torts. However, since this was a trick, it is hard to believe that even Moore would sign a waiver that revealed it was a faux interview or a comedy show. The second problem is that the show, when it aired, is clearly a comedy. Thus, no one would likely believe that there is a detection wand for pedophiles. It was a joke, even if a bad one. Accordingly, it is not clear if an act of satire can be treated as defamation without raising serious first amendment concerns.
The problem for Moore is that a defamation action will open him up to full discovery and disclosure on the underlying claims — something Moore has avoided in the past.
Fraud and intentional infliction of emotional distress raise additional questions — and concerns. Lying to a public figure is not a crime in itself. However, this fraud was used to induce Moore to fly to Washington and take time from his schedule. Moreover, the fraud was used to effectively trap him in a demeaning setting. That does raise some serious (if novel) issues under tort law. The problem again is the use of torts to curtail what was political and creative speech. Many satire shows like the Daily Show are satire but also play an important politically dialogic role. Of course, the Daily Show expressly reveals it is the Daily Show for interviews in its waivers and agreements.
The complaint only makes one reference to the release, stating “In the preemptive notice, Defendants CBS, Showtime and thus Cohen were informed that the release that Judge Moore had signed was obtained through fraud, and was therefore void and inoperative.” There is no other reference to the specific language which would be key to the litigation.
I think that it is too early to dismiss this lawsuit because of Cohen’s highly problematic methods. Defamation strikes me as a loser claim, but the other claims could present some legitimate issues depending on a couple of unknowns like the waiver or release language.
Here is the complaint: Moore v. Cohen