Waiver agreement bars ex-Chief Justice Roy Moore's defamation suit against comedian Sacha Baron Cohen, 2nd Circuit says

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Sacha Baron Cohen

Sacha Baron Cohen was nominated for best actor in a TV comedy or musical category in the 2019 Golden Globes for his performance in Who Is America? Photo from Shutterstock.

A federal appeals court has refused to revive a lawsuit filed by former Alabama Chief Justice Roy Moore and his wife against a comedian who claimed to be an Israeli anti-terrorism expert with a device able to detect pedophiles.

The 2nd U.S. Circuit Court of Appeals at New York affirmed dismissal of the suit, filed after Moore traveled to Washington, D.C., in the belief that he would receive an award there for supporting Israel and would be interviewed by Israeli TV.

The interviewer was comedian Sasha Baron Cohen, who claimed to be the expert before pulling out the fictional pedophile detector, a wand that beeped as Cohen waved it over Moore.

Moore had run for the U.S. Senate in 2017 but lost after allegations during the campaign that he had pursued teenage girls for dates, including a girl who was 14 years old.

The 2nd Circuit said in July 7 summary order the suit was doomed because of a waiver signed by Moore and First Amendment protections for the comedian.

The interview was broadcast on a Showtime TV program called Who Is America? Moore had signed a release before the interview that said he agreed not to bring any future claims for infliction of emotional distress, defamation or fraud. Moore had crossed out a clause, however, that waived claims for sexually oriented behavior or questioning.

The waiver agreement also said Moore was signing “with no expectations or understanding concerning the conduct, offensive or otherwise, of anyone involved in this program.”

Moore alleged defamation, infliction of emotional distress and fraud in his suit. His wife, Kayla Moore, joined the latter two claims.

The 2nd Circuit said the plain text of the agreement bars all three claims by Moore, despite the crossed-out language. And the First Amendment bars the claims by Moore’s wife, the appeals court said.

“We agree with the district court that the segment at issue was clearly comedy, and that no reasonable viewer would conclude otherwise,” the 2nd Circuit said.

Cohen may have implied that he believed Moore’s accusers, but he “did not imply the existence of any independent factual basis for that belief besides the obviously farcical pedophile-detecting ‘device,’ which no reasonable person could believe to be an actual, functioning piece of technology,” the appeals court said.

Moore had been known as the Ten Commandments judge because he had refused an order to remove a Ten Commandments monument from the lobby of the Alabama Judicial Building. He was removed from his chief justice position as a result. He regained his judgeship, however, in a 2012 election.

The lawyer for the Moores, Larry Klayman, told Law360 that the decision was “a travesty,” and they will seek en banc review.

Hat tip to Law360, the Associated Press, the Volokh Conspiracy and How Appealing.

See also: “Fake network voids choice-of-law deal, Roy Moore says in defamation suit against Sacha Baron Cohen” “Roy Moore’s lawyer threatens website with ‘utterly incoherent’ letter” “Roy Moore files defamation suit against 4 of his accusers”

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