Moore v. Cohen

548 F.Supp.3d 330

Roy Stewart MOORE and Kayla Moore, Plaintiffs,

v.Sacha Noam Baron COHEN et al., Defendants.

19 Civ. 4977 (JPC)

United States District Court, S.D. New York.

Signed July 13, 2021

Larry Klayman, Freedom Watch, Inc., Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiffs.

Elizabeth A. McNamara, Pro Hac Vice, Rachel Fan Stern Strom, Davis Wright Tremaine LLP, New York, NY, Eric Joel Feder, Lisa Beth Zycherman, Davis Wright Tremaine LLP, Washington, DC, for Defendants.

OPINION AND ORDER

JOHN P. CRONAN, United States District Judge:

Plaintiff Roy Stewart Moore, the former Chief Justice of the Alabama Supreme Court, was tricked into participating in an interview with Defendant Sacha Noam Baron Cohen on February 14, 2018. Expecting to receive an award in Washington, D.C. for his support of Israel, Judge Moore alleges that he was instead met with extreme and outrageous questioning from Cohen. The interview later aired on television as part of a comedy series that was broadcast by Defendants Showtime Networks, Inc. ("Showtime") and CBS Corporation ("CBS"). Judge Moore and his wife, Kayla Moore, allege intentional infliction of emotional distress and fraud, and Judge Moore alone additionally pleads a claim of defamation.

Defendants have moved for summary judgment, arguing that Plaintiffs’ claims are barred by both a waiver clause in the agreement that Judge Moore signed prior to the interview and also by the First Amendment of the U.S. Constitution. The Court agrees that Judge Moore's claims are barred by the unambiguous contractual language, which precludes the very causes of action he now brings. Although Kayla Moore was not a signatory to that contract, her claims are barred by the First Amendment. Accordingly, Defendants’ motion is granted in its entirety.

I. Background

A. Factual Background¹

Judge Moore ran as a candidate for the U.S. Senate in 2017. Pls. Counter- Rule 56.1 Stmt. ¶¶ 1, 3. During the campaign, several published articles accused Judge Moore of inappropriate sexual encounters with young females, including one who was underage at the time, Defs. Rule 56.1 Stmt. ¶ 4, accusations that Plaintiffs strongly dispute and maintain were uncorroborated by any reputable source, Pls. Counter- Rule 56.1 Stmt. ¶ 4. Judge Moore lost the election on December 12, 2017. Pls. Counter- Rule 56.1 Stmt. ¶ 5. Not long after, Judge Moore and his wife, Kayla Moore, were invited to Washington, D.C., purportedly for Judge Moore to receive an award for his support of Israel. Defs. Counter- Rule 56.1 Stmt. ¶ 7.

Plaintiffs flew from Alabama to Washington, D.C. on February 13, 2018, and were transported by a car service to their hotel. Pls. Counter- Rule 56.1 Stmt. ¶¶ 39, 41. The interview took place the next day, on February 14, 2018, at a different hotel. Id. ¶¶ 45, 51. Before the interview, Judge Moore, in his wife's presence, signed an agreement titled the "Standard Consent Agreement," Dkt. 113-5 ("SCA"), with an entity called Yerushalayim TV ("YTV"). Pls. Counter- Rule 56.1 Stmt. ¶¶ 67-69. This agreement purports to waive numerous potential claims related to the interview, and, as discussed in greater detail below, includes a handwritten modification purportedly made by Judge Moore. Id. ¶ 76.

The interview was conducted by Cohen, who was dressed up and acting in the role of an Israeli "Anti-Terrorism Expert" named "Gen. Erran Morad." Defs. Rule 56.1 Stmt. ¶¶ 31, 52; Dkt. 112-2 ("Episode 3 Video"); Pls. Counter- Rule 56.1 Stmt. ¶ 50. At the time, Plaintiffs did not know that Defendants were involved in the interview, including that Cohen was actually the interviewer. Defs. Counter- Rule 56.1 Stmt. ¶ 11. Cohen first asked Judge Moore about Alabama's "strong connection with Israel," before proceeding to describe technology used by the Israeli military to combat terrorism. Defs. Rule 56.1 Stmt. ¶ 55; Episode 3 Video. Cohen discussed one specific device which he claimed the Israeli army employs to uncover tunnels used by terrorists to launch attacks. Defs. Rule 56.1 Stmt. ¶ 56; Episode 3 Video. Cohen explained that the device also can detect certain enzymes that are secreted only by "sex offenders and particularly pedophiles." Defs. Rule 56.1 Stmt. ¶ 57; Episode 3 Video. Retrieving this device, a black wand-like object, Cohen commented that "because neither of us are sex offenders, then it make absolutely nothing [sic]." Defs. Rule 56.1 Stmt. ¶¶ 58-59; Episode 3 Video. But when Cohen moved the wand closer to Judge Moore, the gadget seemed to emit a beeping noise. Defs. Rule 56.1 Stmt. ¶ 60; Episode 3 Video. Cohen then hit the device against his hand, stating that the device "must be faulty," before asking Judge Moore if he might have lent his jacket to someone else. Defs. Rule 56.1 Stmt. ¶ 61; Episode 3 Video. After declaring that he has been "married for 33 [years] – and never had an accusation of such things," Judge Moore left the hotel room, ending the interview. Defs. Rule 56.1 Stmt. ¶¶ 62-63; Episode 3 Video. As Judge Moore exited the room, Cohen maintained, "I am not saying you are a sex offender at all." Defs. Rule 56.1 Stmt. ¶ 63; Episode 3 Video.

This segment was aired as part of Episode 3 of Who Is America? , a comedy series in which Cohen plays fictional characters "from across the political spectrum" while conducting interviews with various individuals (the "Program"). Defs. Rule 56.1 Stmt. ¶¶ 25, 52; Pls. Counter- Rule 56.1 Stmt. ¶ 50. The series touched on various political issues in America, with Cohen interviewing various former and current politicians, lobbyists, and rights activists. Defs. Rule 56.1 Stmt. ¶¶ 30-38. The first episode featured a discussion with a U.S. Senator, during which a disguised Cohen offered his economic proposal of "hav[ing] 100% of the people" put "in the one percent" to address economic disparity and showed the Senator a document purportedly created by the "International Institute of Truth and Knowledge" as support for his proposal. Id. ¶ 30; Dkt. 112-2 ("Episode 1 Video"). That same episode also featured Cohen, in his "Erran Morad" character, promoting to several lobbyists and politicians his idea for "Kinderguardians", a program that would entail arming children as young as three years old with firearms to defend against school shootings. Defs. Rule 56.1 Stmt. ¶¶ 31-34; Episode 1 Video. On another episode of Who Is America? , Cohen, again as "Erran Morad", interviewed a former Vice President of the United States. Defs. Rule 56.1 Stmt. ¶¶ 37-38; Dkt. 112-2 ("Episode 2 Video"). After discussions of prior international conflicts and enhanced interrogation, Cohen produced his "waterboarding kit" and asked the former Vice President to sign it. Defs. Rule 56.1 Stmt. ¶ 38; Episode 2 Video.

Cohen created, co-produced, and co-wrote the Program, while Showtime aired and distributed it. Pls. Counter- Rule 56.1 Stmt. ¶ 26; Defs. Rule 56.1 Stmt. ¶¶ 26-27. CBS is the parent company of Showtime. Defs. Rule 56.1 Stmt. ¶ 73.

B. Procedural Background

This case was filed on September 5, 2018, in the United States District Court for the District of Columbia. Plaintiffs allege that Judge Moore was fraudulently induced by "Defendant Cohen and his agents[,] including Defendants Showtime and CBS," into agreeing to be interviewed. Compl. ¶¶ 11, 15. The Complaint asserts Plaintiffs would never have come to Washington, D.C., nor would Judge Moore have appeared in the Program, had they known the truth about the nature of the Program and the identity of its producers and broadcasters. Id. ¶¶ 15-16. Both Plaintiffs plead claims of intentional infliction of emotional distress and fraud. Id. ¶¶ 33-48. Judge Moore also brings a defamation claim, asserting that Cohen "falsely painted, portrayed, mocked, and with malice defamed" him "as a sex offender." Id. ¶ 18; see id. ¶¶ 26-32.

On April 29, 2021, the Honorable Thomas F. Hogan of the United States District Court for the District of Columbia transferred venue to this District pursuant to 28 U.S.C. § 1404(a) based on the SCA's forum-selection clause. See Dkt. 34, Dkt. 52-3; SCA ¶ 6. Upon transfer, the case was assigned to the Honorable Andrew L. Carter, Jr.

Defendants filed a motion to dismiss on September 12, 2019, arguing in part that the SCA bars Plaintiffs’ claims. See Dkt. 50, Dkt. 51 at 9-16. Judge Carter denied the motion at a court conference on July 2, 2020, explaining that, at the motion to dismiss stage, he could not consider Defendants’ extrinsic evidence of their relationship to the SCA's signatory, YTV. Dkt. 88 at 2-4. At another conference later that month, Judge Carter ordered discovery to commence. Dkt. 86 at 8-10.

The case was reassigned to the undersigned on September 29, 2020. Defendants requested a pre-motion conference on November 13, 2020, explaining that they had produced all discovery relating to their corporate relationship with YTV and intended to move for summary judgment and to seek a stay of discovery pending disposition of that motion. Dkt. 90. On December 3, 2020, the Court stayed most discovery, but allowed limited discovery on the issues raised in the instant motion for summary judgment: whether either the SCA or the First Amendment precludes Plaintiffs’ claims. Dkt. 96 ("12/3/2020 Tr.") at 40.²

Defendants filed their motion for summary judgment and supporting documents on February 8, 2021. Dkts. 111, 112, 113, 114, 115, 116 ("Motion"), 117. Plaintiffs opposed the motion on March 15, 2021. Dkts. 124 ("Opposition"), 125, 126. Defendants filed their reply on April 5, 2021. Dkts. 127 ("Reply"), 128, 129.

II. Applicable Legal Standards

A. Rule 56 of the Federal Rules of Civil Procedure

Under Federal Rule of Civil Procedure 56, a movant seeking summary judgment must demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a...