Cohen’s prank victims on shaky legal ground
SIGNED RELEASES PROTECT COMEDIAN AND PRODUCERS
Sacha Baron Cohen, disguised as an anti-terrorism expert, coaxed Daniel Roberts, an ardent gun rights activist, into biting on a sex toy, and other embarrassing acts, while being filmed. Roberts thought he was part of a training video. Instead, he was being played for laughs, as part of an episode of Cohen’s Showtime series, Who Is America?
On Thursday, Roberts said in an interview that he is “exploring every avenue” to pursue legal action. He is far from alone.
Jason Spencer resigned his position as a state lawmaker in Georgia after Cohen convinced him to yell racial epithets in a similar situation. He has said he “sought legal counsel” too. Roy Moore, the former Alabama Senate candidate, suggested he’d go to court as well.
But would any of them have a good chance of winning if they sued?
After all, Cohen and his team were deceitful in how they lured them and others into participating with the show, which aired its most recent episode Sunday night. Former Illinois Rep. Joe Walsh said he was told he was receiving an award for his support of Israel and was prompted to read scripted remarks that advocated arming small children. He might have a claim, no?
Not necessarily, according to legal experts, who say that in most of the cases, it seems that prospective prank victims signed releases designed to indemnify Cohen and his producers from legal claims.
“If I were a lawyer for a potential plaintiff who came into me and said this happened, my first question would be, ‘Did you sign a piece of paper?’” said John Rosenberg, a media and entertainment lawyer.
Roberts said that he didn’t remember whether he signed one for his segment, but that it was “highly likely.” Walsh said he had signed one.
Cohen has long been a magnet for lawsuits for his work. People who were pranked on the television show Da Ali G Show, (2000-04) and in the films Borat (2006) and Brüno, (2009) have also sued, though seldom successfully.
The difficulties arise often because the agreements people sign are purposely vague and there is indemnifying language in the fine print, according to Domenic Romano, another entertainment lawyer.
“These releases basically solicit the consent of the participant and say, ‘Look, no inconsistent oral statement is going to be considered here. This is the entire agreement in this release. You’ve entered into it voluntarily. You’ve had an opportunity to review it with counsel,’” said Romano.
Showtime did not respond to a request to review the Who Is America? release.
But past documents from Cohen’s work give an indication for what the wording might be.
In 2009, Richelle Olsen, an executive director of a non-profit in Palmdale, Calif., sued Cohen for an altercation during filming for Brüno that she said caused an injury. According to court papers, the release for Olsen — a “Standard Location Agreement” — stipulated that she had not relied upon any promises as to “the nature of the Film or the identity, behaviour or qualifications of any of the cast members,” and that she was signing the paperwork “with no expectations or understandings concerning the conduct offensive or otherwise, of anyone involved with this film.” Olsen’s suit was tossed in 2011. There is also a distinction between public and private citizens. Public figures like Moore and Spencer must clear a much higher bar to bring a defamation suit.
“Cohen can rely on the First Amendment of the United States Constitution, the right to free speech,” Romano said. “Second, when it comes to public figures, there is a higher standard. They have to show actual malice, if they’re going to make a claim they’ve been defamed. Third, there are anti-SLAPP statutes.”
“SLAPP” stands for “Strategic Lawsuit Against Public Participation.” Anti-SLAPP statutes, as of earlier this year, exist in 28 states. (Two of those states — Washington and Minnesota — recently declared them unconstitutional.) These laws exist to make it easier to dismiss legal claims filed in free speech cases that concern topics the public might be interested in — a statute Cohen used to defend against the lawsuit from Olsen and others.
Legal experts said the topics of Cohen’s show — frequently mocking political figures and making light of current events — would qualify.
“To the extent the show discusses topics that are newsworthy, it will be protected free speech,” Padmaja Chinta, a lawyer who specializes in intellectual property issues, said in an email.
In theory, Roberts might sue Cohen for fraud, arguing he was induced into an agreement by being misled. There’s an issue here though.
“What’s he going to claim are his damages? ‘I made a fool out of myself?’” said Rosenberg.
“If I come on to a television show believing that it’s a serious, political, issues-oriented format instead of this sort of satirical presentation,” he said, “and I make a racist or misogynistic comment, Sacha Baron Cohen didn’t defraud me into making that statement.”
Another potential legal avenue is to argue that the show defamed a person or, as allowed in some states, cast him or her in a false light. Defamation, however, requires a false statement. In the case of Who Is America?, no one who has threatened to sue has said that Cohen made a false statement about them. The issue instead has been their own words or actions.
“A person cannot defame themselves,” Rosenberg said.
False light claims, which are rare, centre on whether a person has been embarrassed by being portrayed in a misleading way. In Walsh’s case, he has contended that the piece was edited to create a misimpression that he was endorsing a policy of arming kindergartners in the United States. According to Walsh, he was actually told that the remarks he read off a teleprompter concerned a program in Israel.
Rep. Dana Rohrabacher of California, who also expressed support for the policy on camera, said he actually would not support such a program. He called Cohen’s actions “fraud.”
Among the prior lawsuits against Cohen that have not succeeded was one filed by a pair of college students at the University of South Carolina. While intoxicated, they made several racist and sexist comments on camera for Borat, in which Cohen plays a journalist from Kazakhstan. A judge tossed the suit in 2007, citing California’s anti-SLAPP statute.
A Maryland-based driving instructor named Michael Psenicska sought damages based on how he was presented in Borat. He was filmed in a segment giving Cohen’s character a bizarre driving lesson. A judge tossed the suit and the resulting appeal was dismissed as well in 2009.
But the suits haven’t all failed. In 2012, a Palestinian grocer named Ayman Abu Aita settled a defamation claim for an undisclosed amount against Cohen after he accused the comedian of falsely labelling him a terrorist in Brüno.
In this case, unlike some of the others, the lawsuit revolved around whether Cohen’s portrayal was false.
“One critical distinction appears to be that it was Cohen’s words there, i.e., his branding of Aita as a terrorist,” Rosenberg said in an email, “and not Aita’s own comments, that provided the basis for his defamation claim.”
And, as a lawyer for Aita noted at the time, Aita had not done what so many other targets had done — signed a release.