Back in 2018, comedian Sacha Baron Cohen made a fool of notorious Alabama politician Roy Moore.
Cohen invited Moore to appear on his TV show. Moore took the bait. He even signed a contract agreeing, buried in so many obfuscating legal phrases, to be made a fool of.
“During the segment, Cohen posed as an Israeli counter-terrorism expert and suggested Moore was a pedophile by using what he claimed was a detection device invented by the Israeli Army,” The Hill recalls (read story here). The gag was an allusion to Moore’s very real, and not funny, history of stalking teenage girls. Given that history, and Moore’s Bible-thumping hypocrisy, he had it coming.
This is in the news because a federal judge just threw out Moore’s defamation and emotional distress lawsuit against Cohen.
If Cohen defamed him, it’s hard to see where the harm was, because Moore had already lost his U.S. Senate race — largely because of those allegations — before Cohen set him up as a laughingstock. Yes, Moore’s very large pride was wounded, but the immense size of Moore’s pride doesn’t mean it has much monetary value. Sure, it was vicious, but a lot of satire is.
But that’s not why Moore’s lawsuit failed. It failed because a contract is a contract. You’re bound by what you sign. So is he.
The judge also tossed Mrs. Moore’s legal claims against Cohen, but on different grounds. She didn’t appear on the show, or (one assumes) sign the contract. Her legal claim apparently is that Cohen’s stunt humiliated her, too. You can make a plausible argument that being married to a pedophile is humiliating, but one could argue with equal force that whatever harm flows from marrying a pedophile is self-inflicted. You are what you marry, at it were. This, however, was not the basis of the judge’s dismissal of Mrs. Moore’s legal claims.
Rather, he “ruled that Kayla Moore’s claims were barred by the First Amendment.” To wit: “Given the satirical nature of that segment and the context in which it was presented, no reasonable viewer would have interpreted Cohen’s conduct during the interview as asserting factual statements concerning Judge Moore,” Judge Cronan wrote in his opinion. [Note: Moore was chief justice of Alabama’s supreme court until he was tossed off the court for judicial misconduct.]
What’s interesting about this is that it’s the same argument Sidney Powell made when hauled before a federal judge for disciplinary action for having filed one or more frivolous election lawsuits. Powell famously said “no reasonable person would believe” the utter nonsense she propagated in those legal filings. That’s probably true, but the counterpoint is there’s a lot of unreasonable people in this country, and you can plausibly argue she helped incite them to violence.
And while the First Amendment protects all manner of lies spewed from a soapbox from government censorship, lawyers are subject to rules of conduct when appearing before courts, and enforcing those rules isn’t censorship, it’s regulation of the legal profession. Some years back, the Supreme Court threw out professional rules against lawyer advertising as a restraint on free speech, and this could get real interesting if the Supreme Court were to extend its rationale in that case to the rules against lying to courts and filing frivolous lawsuits, and throw out those rules, too.
Powell may well raise Judge Cronan’s ruling in the disciplinary hearing against her currently underway in a Michigan federal court, which is on pause over the next couple weeks pending written arguments. The similarities, she may argue, are manifest: Just as no reasonable person would take Cohen seriously, nor would any serious person take her seriously. (That, by the way, probably is not the best way to market high-priced legal services, but I digress.)
I would guess the judge, and courts in general, won’t view this argument favorably. Judges are “serious persons,” and don’t see the humor in lawyers wasting their time or clogging busy court calendars with tripe. It’s true enough the courts didn’t take her seriously; all her election lawsuits were summarily dismissed. But millions of Trump supporters did take her seriously, some of them violently stormed the Capitol, and therein lies the harm. Cohen’s stunt didn’t get federal buildings damaged, members of Congress endangered, dozens of cops injured, or our democracy threatened; Powell’s stunts did contribute to those results.
That’s where the analogy ends and Powell’s exposure to professional discipline kicks in.
Photo: Cohen testing Moore for pedophilia radiation