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Actor Sacha Baron Cohen was victorious in an appeal brought by Roy Moore, a former judge of the Supreme Court of Alabama and former Senate candidate.

Judge Moore sued over a 2017 interview on the CBS programme, Who is America. As part of the show, Baron Cohen convinced Judge Moore to fly to Washington DC to receive an award for his support of Israel. This was a ruse: Baron Cohen disguised himself as an anti-terrorism expert, and described a device developed by the Israeli military which could identify sex offenders and paedophiles. Baron Cohen then produced a ‘wand-like object’ which beeped when he waved it over Judge Moore. This was in reference to allegations against Moore of sexual misconduct towards teenagers – which he denies – which emerged during his failed US Senate race in 2017.

In response, Judge Moore and his wife Kayla commenced claims for fraud and infliction of emotional distress. Judge Moore also sued in defamation. In 2021, the US District Court granted Baron Cohen summary judgment on the claim. This week, the US Court of Appeals upheld that decision.

A key factor in the decision was a consent agreement signed by Moore, in which he waived ‘any claims’, including assertions of inflictions of emotional distress, defamation, fraud and ‘intrusion or invasion of privacy (such as any allegedly sexual oriented or offensive behaviour or questioning)’. Judge Moore sought to argue that this waiver was unenforceable because (1) his consent was procured fraudulently, and (2) he had modified the form by hand by crossing out the reference to “sexual oriented” behaviour or questioning.

However, the Court of Appeals pointed to a stipulation in the consent agreement that Moore did not rely on any representations made to him about the programme – finding that this ‘destroy[ed] the allegations in [his] complaint that the agreement was executed in reliance upon these contrary oral representations’. Further, there was no ambiguity in the language of the agreement as to claims asserting infliction of emotional distress, defamation and fraud. Therefore, the handwritten amendment in relation to privacy claims was irrelevant.

The claim by Kayla Moore also failed, as it was barred by the First Amendment. The Court emphasised that heightened First Amendment protections apply where the underlying speech relates to a matter of public concern. Here, Judge Moore had been a candidate for political office and allegations of wrongdoing bore on his fitness for office. The Appeals court agreed that the segment could not reasonably have been interpreted as stating actual facts about Judge Moore and was ‘clearly comedy’. Baron Cohen may have implied that he believed Judge Moore’s accusers, but he did not imply the existence of any independent factual basis for that belief.

The decision is a powerful reminder of the impact of the First Amendment on the US media law landscape, which is capable of acting as a bar to defamation claims even where the allegations are extremely serious. By contrast, if the case had been brought in England & Wales, it is likely that Baron Cohen would have sought to rely on the defences of public interest (Defamation Act section 4) or honest opinion (section 3), or perhaps that Moore did not suffer serious harm due to the clearly humorous nature of the allegations.

Judge Moore has indicated he will further appeal the decision, stating that Baron Cohen’s ‘pusillanimous and fraudulent conduct must be stopped’.