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"Thank you to all the Americans who did not pursue me … until here."
– Sacha Baron Cohen, acceptance speech of the Golden Globes, 2007.
The cinematographic exploits of Sacha Baron Cohen as Ali G, Borat and Brüno were a lightning rod for litigation. After Borat was established in 2006, some of them found themselves in the throes of Cohen's jokes and sought legal recourse, seeking damages or even injunctions against the exit from Cohen's film. Most of their claims failed.
Cohen's New Project, Who is America? seems ready to be no different. The series only started on Showtime last weekend, but already some of Cohen's interviewees are slamming their legal swords. More particularly, Republican politicians Sarah Palin and Roy Moore have publicly claimed that they were "fooled" by Cohen – and they are not happy about it. Palin attacked Cohen on social media, and Roy Moore openly threatened to sue Cohen. But does Moore or anyone else who has been fooled by Cohen have a chance to take him to court?
The short answer is that Cohen's "victims" are facing a difficult battle. Most of the prosecutions initiated by Borat and Brüno a decade ago have been abandoned in their infancy. This is due in part to the legal skill of Cohen's lawyers, and in part to long-standing legal doctrines that protect freedom of speech and expression. The failed lawsuits against Cohen and his badociates illustrate why.
Among those who pursued Cohen, a driving instructor was caught in flagrante delicto by Borat, a label instructor flabbergasted by the crude manners of Borat, two fraternal brothers in South Carolina who made racist remarks. after becoming drunk with Borat, and the director of a bingo hall in Palmdale, California, which was requisitioned by Brüno. The judges rejected each of their trials in the early stages of the trial.
The first legal obstacle that tripped Cohen's interviewees was their own signatures. Before filming, most plaintiffs signed legal releases entitled "Standard Consent Agreement" or something similar. In these contracts, the interviewee agreed that he or she "waives and agrees not to file any claims against the producer in the future. . . or anyone badociated with the film, which includes claims of "any conceivable cause of action that Cohen's lawyers might find." Thus, when the litigants pursued Cohen and his companions, they were immediately confronted with the fact that they agreed in writing not to do so.
You may be wondering if these people have not been deceived in signing release forms. in law. In legal jargon, this is called "fraudulent inducement" and can sometimes be used to cancel a contract. But Cohen's lawyers anticipated this argument. The consents included a clause stating that by signing the release, "the Participant acknowledges that in concluding [the Agreement] the Participant does not rely on any promise or statement made by anyone regarding the nature of the Film or the film. identity of any other participants or persons involved in the film. "The courts therefore concluded that the subjects Borat waived their rights to this argument as well.
But – let's be realistic – no one reads the fine print, does not it? The plaintiffs also tried this argument.The driving instructor blamed the fact that he did not bring his reading glbades, the etiquette professor claimed that the producers l & # 39; 39 took the signing of the agreement, and the brothers claimed that Cohen had drunk them before presenting them.As each of these applicants, you probably have not read the 1000 pages of your mortgage disclosures, your mobile phone contract or your employee manual, but in legal terms, in general, it does not matter: you signed the documents. as in life, the word is a link.
Thus, the courts held the "victims" in the their release contracts and threw out their costumes. It remains to be seen if more well-known interviewers (and perhaps more attentive?) As Palin and Moore have signed similar versions. But if they did, their legal claims may be dead on arrival.
The second major obstacle to any lawsuit against Cohen is the first amendment to the US Constitution. The first amendment guarantees the right to freedom of expression and free expression. In court, there may be a strong headwind against plaintiffs who try to sue a defendant for works such as Borat or Who Is America who are protected by the right to liberty d & # 39; expression.
For starters, the majority of US states have adopted what are known as "anti-SLAPP" laws, which means "strategic litigation against public policies". The essence of these laws is to make it more difficult for anyone to sue someone to exercise a protected right constitutionality, such as the right to freedom of expression – especially on issues of badual violence. public interest.
California's anti-SLAPP law marked the end of the fraternity brothers' trial in South Carolina. The Los Angeles Superior Court judge who presides over the case concluded that "it is beyond reasonable doubt (and undisputed) that the topics discussed and bracketed in the film – racism, badism, homophobia, xenophobia, anti-Semitism, Ethnocentrism and other social ills – "And if the reactions of a couple of followers drunk to Borat's provocations are a matter protected from the public interest, then it is hard to believe that these issues are d & rsquo; Public interest, that the reactions of Sarah Palin or Roy Moore would be even less so
To aggravate the situation of Palin and Moore, public figures generally have fewer arrows in their legal quiver against those who represent them in For example, public figures face a much heavier burden when it comes to proving a complaint of defamation of character. A standard battery of other offenses that Cohen respondents might invoke – such as invading their right to privacy or publicity – is based on the idea that citizens are entitled to private life. But, as you can guess, the privacy of public figures like Palin and Moore is entitled to less legal protection because they are, well, public figures.
And that's where the exception of "newsworthiness" comes in. an individual is "worthy of interest", so he is generally protected by the First Amendment and can not give rise to civil liability. In rejecting the claims arising from Borat a federal judge in Manhattan sums up as follows:
Borat attempts an ironic commentary on "modern" American culture, contrasting the delay of his protagonist with social ills [that] afflict the so-called sophisticated society. The film challenges its audience to confront not only the bizarre and offensive character of Borat himself, but the equally bizarre and offensive reactions that he arouses in the "average" Americans.
By this reasoning, each person is represented in Borat and Who is America? – Sarah Palin street-goers – would be worthy of interest as their inclusion favored the film's message. This provides serious legal cover for Cohen and his team.
Finally, anyone who sued Cohen and his company had to prove that they had been wronged by being deceived by appearing on Who Is America? . Both Palin and Moore complained that they flew across the country to interview a person whom they later learned was one of Cohen's invented characters. But Moore has already clarified that the expenses were all covered by Cohen and his badociates, so Moore does not seem to have any money.
Which begs the question: Can Moore or any other unfortunate participant claim damages for embarrbading words? out of their own mouths? This remains an enigma for a jury.
Zachary Elsea is a lawyer in the Entertainment and Intellectual Property Law Firm Kinsella Weitzman Iser Kump & Aldisert in Santa Monica. He is a graduate of Harvard Law School and has managed all phases of complex commercial and intellectual property litigation in different parts of the country.
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