Comedian Sacha Baron Cohen runs a supposed “pedophile detector” on Judge Roy Moore, who was accused of sexual misconduct involving minors during his run for Senate. Moore sued over the comedy sketch, claiming it defamed him.
Former Alabama Judge Roy Moore’s attorney compared his client to Johnny Depp in a federal appeals court on Friday, in a bid to revive his $95 million defamation suit against comedian Sacha Baron Cohen over a sketch lampooning the would-be politician as a pedophile.
“He deserves a jury,” Moore’s lawyer Larry Klayman declared during oral arguments before the Second Circuit Court of Appeals. “Johnny Depp deserved a jury trial.”
When the evidence came out in the Depp trial, it persuaded the jury to reject Amber Heard’s sexual and physical abuse allegations, but Moore hasn’t had the opportunity to go to discovery to dispute the comic’s imputation that Moore was a pedophile, Klayman argued.
Moore has been trying to overturn a federal judge’s ruling from last July dismissing his suit, after finding Cohen’s sketch was “clearly a joke.”
U.S. Circuit Judge Rosemary Pooler, a Bill Clinton appointee, opined that the sketch “wasn’t very funny.”
Cohen’s attorney Elizabeth A. McNamara noted that opinions vary on comedy, but she added that the law was clear.
“No one could reasonably believe that this wand could depict actual facts,” McNamara said.
In the comedy sketch, Cohen plays an Israeli “anti-terrorism” expert and former Mossad agent purporting to test advanced pedophile detection technology—actually, a simple metal detector wand—on Moore, who supposedly activates the device with his enzymes. The ex-Chief Justice of the Alabama Supreme Court and his wife Kayla Moore later sued Cohen, Showtime and the CBS Corporation in the Southern District of New York, where their case failed on July 13, 2021.
McNamara added that it’s “important to note” that the sketch began with news reports, and the sketch involved a wand that supposedly had an “enzyme-detecting feature.”
U.S. District Judge John P. Cronan, a Donald Trump appointee, found that any reasonable viewer would have known it was a comedy program, rather than news.
“The segment began with an absurd joke (i.e., ‘Gen. Erran Morad’ boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare), followed soon by footage of numerous news reporters commenting on the accusations brought against Judge Moore,” Cronan noted. “At this point, it should have been abundantly clear to any reasonable viewer that Defendants were using humor to comment on those accusations, rather than making independent factual assertions or even remarking on the truth or accuracy of the allegations.”
Moore signed a waiver before the taping began.
Judge Cronan found that waiver enforceable and that the First Amendment protected Cohen’s satire. He dismissed the case with prejudice, meaning that Moore could not file it again.
In her appellate brief, Cohen’s lawyer cited another famous case involving satire and free speech.
“At its core, this lawsuit conflicts directly with the long tradition of First Amendment protection for political parody and satire of public figures—especially where the satirical work ‘could not reasonably have been interpreted as stating actual facts about the public figure involved,'” McNamara wrote in a 53-page appellate brief, citing Rev. Jerry Falwell Sr.’s litigation with Hustler Magazine.
In that case, the raunchy pornographic magazine ran a mock interview quoting Falwell saying his first time having sex was with his mother in an outhouse. The Supreme Court ruled in Hustler‘s favor, finding that—while “offensive” and even “gross”—such satirical speech was protected by the First Amendment.
Moore’s lawyer Larry Klayman, a conservative activist, argued that the precedent didn’t apply because his client—unlike Falwell—was actually dealing with similar allegations at the time, which he said were false.
“This made their defamatory fraud ‘ring true,’ rendering this far different from Hustler Magazine,” Klayman wrote.
Appearing virtually via Zoom, Klayman began the appellate hearing by quoting Thomas Jefferson.
“Representative government and trial by jury are the heart and lungs of liberty,” Klayman said, adding that Moore was never allowed to have a jury.
Klayman told the panel that there is “nothing more heinous than being accused of being a pedophile,” adding that “people jump off buildings” if they are falsely accused of that behavior.
“It’s worse than calling someone a murderer,” he said.
U.S. Circuit Judge Gerard Lynch, a Barack Obama appointee, targeted his initial questions on the waiver. Klayman argued that any ambiguity in the waiver should be resolved in his client’s favor before the trial.
Klayman argued that Judge Cronan violated his own statement of the applicable standard when Judge Lynch interrupted him.
“No, he didn’t,” Lynch replied, adding that Cronan found that Moore failed to meet the permissive standard.
“Don’t tell me that Judge Cronan went back on something that he promised you,” Lynch added.
The final member of the panel was U.S. Circuit Judge Raymond Lohier, also an Obama-appointed jurist. The Second Circuit reserved decision on the matter.
(Screenshot via YouTube)
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