Background

As part of the TV show, Who is America, Sacha Baron Cohen, Showtime, Inc., and CBS Corporation (the “Defendants”) convinced Roy Moore (“Judge Moore”), a former Chief Justice of the Supreme Court of Alabama and former Senate candidate from Alabama, to accept a prize and participate in an interview. It was a ruse - unknown to Judge Moore, the interview was for Baron Cohen’s show.

Prior to the interview, Judge Moore signed a standard consent agreement (“SCA”) (to which he made a handwritten amendment) expressly waiving any claims related to the program, including claims of infliction of emotional distress, defamation, and fraud (at 3-4).

The interview included news clips reporting allegations that Judge Moore had engaged in sexual misconduct and a discussion about pedophilia. After the interview, which was aired on the show, Judge Moore and his wife, Kayla Moore, sued Baron Cohen, Showtime, and CBS alleging intentional infliction of emotional distress, fraud, and defamation (at 1-2).

‍

District Court’s Ruling

The District Court held that the SCA agreement was enforceable and granted the defendants' motion for summary judgment dismissing Judge Moore’s claims.

With respect to Kayla Moore’s claims, the District Court held that the First Amendment barred her claims because the interview was clearly political satire and no reasonable viewer would have interpreted Cohen's conduct during the interview as asserting factual statements concerning Judge Moore.

Judge Moore and Kayla Moore appealed.

‍

SCA signed by Judge Moore was enforceable and specifically precluded Judge Moore’s claims 

On appeal in Moore v. Cohen, No. 21-1702-cv (2nd Cir. 2022), Judge Moore argued that: (1) the waiver provision of the SCA was unenforceable because his consent was procured fraudulently; (2) the release waiver did not apply to his claims because of his handwritten modification; and, (3) the SCA was an unenforceable general release.

The Court rejected each of Moore’s arguments. 

The Court noted that when a provision of a contract, such as paragraph 5 of the SCA, states that a contracting party disclaims the existence of or reliance upon specified representations, that party will not be allowed to claim that he was defrauded into entering the contract in reliance on those representations. Therefore, Judge Moore could not successfully argue that the agreement was executed in reliance upon contrary oral representations (at 4-5).

The Court also rejected Judge Moore’s argument that, because he modified a provision of the waiver agreement concerning a different potential cause of action, the plain language of the contract does not mean what it says. The Court noted that there was no ambiguity in Judge Moore's release of all claims asserting infliction of emotional distress, defamation, and fraud, which were the only causes of action asserted in this action (at 5-6).

The Court noted that Judge Moore's claims were specifically precluded by the SCA (at 6).

‍

Heightened First Amendment protections apply to Judge Moore as a public figure 

The Court noted that heightened First Amendment protections apply to any tort alleging reputational harm as long as the underlying speech relates to a matter of public concern. The Court affirmed that the allegations against Judge Moore were a matter of public concern. He was a frequent candidate for political office and had recently run for Senate at the time that the segment aired. The Court held that the allegations of wrongdoing clearly bore on his fitness for office (at 7).

Therefore, the determinative issue was whether the segment could reasonably have been interpreted as stating actual facts about Judge Moore. The Court agreed with the District Court that the segment at issue was clearly comedic and that no reasonable viewer would conclude otherwise (at 7-8).

Therefore, although Kalya Moore was not a signatory to the SCA, her claims were barred by the First Amendment (at 7).

‍

Disposition

The Court affirmed the order of the District Court granting summary judgment for the defendants (at 9).