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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Comedian Sasha Baron Cohen has beaten yet another lawsuit by

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Speaker 1: someone he hoodwinked in a prank interview. In a segment

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Speaker 1: on the Showtime series Who Is America, Cohen appeared as

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Speaker 1: counter terrorism instructor Colonel Aaron Morad discussing bogus military technology

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Speaker 1: with former Alabama Senate candidate Roy Moore, including a supposed

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Speaker 1: pedophile detector that beeped when placed near More. It is very,

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Speaker 1: very simple to use. You just switch it on and

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Speaker 1: because need of us or sex offenders, then it makes

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Speaker 1: absolutely nothing. You just put it on, you put it nearby,

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Speaker 1: write this, although hello, it must be faulty. More sued

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Speaker 1: for declamation to the tune of nine million dollars, joining

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Speaker 1: me as Mary Anne Pazanowski, senior legal reporter for Bloomberg Law. So,

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Speaker 1: for those who are not bored at fans, tell us

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Speaker 1: about the interview. It was recorded for a show that

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Speaker 1: was broadcast on Showtime called Who Is America. This particular

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Speaker 1: episode aired in the summer eighteen, after Justice Moore had

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Speaker 1: run for unsuccessfully for the U. S. Senate from Alabama.

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Speaker 1: And during his campaign summer, women had come forward and

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Speaker 1: accused him of having had inappropriate sexual relationships with them

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Speaker 1: when they were much younger, and at least one of

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Speaker 1: them that she was under eighteen at the time that

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Speaker 1: he had a sexual relationship with her. He denied all

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Speaker 1: of those accusations. Of course, I don't know that they

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Speaker 1: were ever proven, but they were out there. In this

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Speaker 1: particular episode of Who Is America begins with news clips

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Speaker 1: clips from various and sundry news organizations reporting on these

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Speaker 1: accusations about Justice more Now, he says he was lured

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Speaker 1: to Washington, d c. By Sasha Baron Cohen and his

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Speaker 1: production company to accept an award from the Israeli government

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Speaker 1: for being such a good friend to Israel. When he

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Speaker 1: got there, they said, oh, and by the way, we

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Speaker 1: have a general who's a terrorism expert and we want

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Speaker 1: he wants to interview you about getting this award. More

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Speaker 1: is brought into the interview at Sasha Baron Cohen dressed

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Speaker 1: up in one of his alter egos, and they begin

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Speaker 1: talking about how Alabama and Israel share a commitment to

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Speaker 1: fairness and honesty for all people, and at one point

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Speaker 1: Cohen says, we have developed technology to discover hiding places,

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Speaker 1: tunnels in which terrorists high and also, by the way,

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Speaker 1: this particular technology also tend detect enzymes secretions that are

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Speaker 1: only found in pedophile that pedophiles secrete enzymes that other

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Speaker 1: people don't, and that this technology can detect them. When

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Speaker 1: Cohen brings out the wand he puts it by himself,

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Speaker 1: and of course something happens. He puts it over by

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Speaker 1: More and it starts beeping. Cohen brings back himself, says,

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Speaker 1: so you know, it's still not beeping. He brings in

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Speaker 1: another person, puts the one near the other person, it

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Speaker 1: doesn't beep, goes back to More, it starts beeping immediately,

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Speaker 1: and More immediately says I've been married for three or

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Speaker 1: three years. I've never had any accusations like this thrown

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Speaker 1: at me. They're absolutely untrue, and eventually gets up and leaves,

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Speaker 1: and as he's leaving, Cohen is yelling, I'm not calling

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Speaker 1: you a pedophile, and there must be something wrong with

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Speaker 1: this device. I don't know why it would do that.

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Speaker 1: The judge dismissed the lawsuit on some rejudgment that's before trial,

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Speaker 1: and it revolved around a release More had signed tell

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Speaker 1: us about the judges reasoning, there is a doctrine in

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Speaker 1: the US law that says, if you can avoid a

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Speaker 1: constitutional question, do it. So the court starts with this

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Speaker 1: is called the doctor of constitutional awardance. Court starts with

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Speaker 1: this and says, well, we don't have to consider Sasha

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Speaker 1: Baron Cohen's first amendment defense is pre speech defense because

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Speaker 1: Judge Moore signed a standard consent agreement before he appeared

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Speaker 1: on the interview, and in this agreement, Judge Moore specifically

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Speaker 1: but without limitation waves and agrees not to bring at

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Speaker 1: any time in the future, any claims against the producer,

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Speaker 1: So can't bring any claims against the producer's assignese licensees

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Speaker 1: related to potential infliction of emotional distress, defamation, or fraud,

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Speaker 1: the exact three causes of action that Morey Moore alleged

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Speaker 1: in his complaints. Court goes on to stay under New

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Speaker 1: York flont you waived those claims. That language in the

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Speaker 1: contract is unambiguous. Is clear he signed the contract with

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Speaker 1: no expectation about being able to bring a lawsuit about

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Speaker 1: any conduct that would fit within those three causes of actions.

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Speaker 1: It's not a general release, it's a specific release. Essentially,

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Speaker 1: Cohen provided his own precedent because the judge in this

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Speaker 1: case cited an opinion by Judge Loretta Presca in another

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Speaker 1: case over Cohen's two thousand six four at film. So

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Speaker 1: the language in this release has been tested in court.

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Speaker 1: Apparently so um. What Judge Cronan here says is that

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Speaker 1: Judge Presca reached the same conclusion when she considered substantially

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Speaker 1: identical language in a release and dismissed claims brought by

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Speaker 1: individuals featured in Cohen's two thousand six films. More also

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Speaker 1: claimed the waiver was ineffective because it was obtained fraudulently.

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Speaker 1: How did the judge handle that? He also waived that

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Speaker 1: in the contract that he signed. According to the court,

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Speaker 1: the exact language provides participants knowledge is but in entering

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Speaker 1: this agreement, he's not relying on any promises or statements

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Speaker 1: made by anyone about the nature of the program or

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Speaker 1: the identity, behavior, or qualifications of any other participants cast members.

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Speaker 1: I think cast members should have been a red flag

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Speaker 1: there or other persons involved in the program. The assigning

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Speaker 1: this agreement with no expectations or understandings concerning the conduct,

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Speaker 1: offensive or otherwise of anyone involved in the program of

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Speaker 1: court said that language precludes the fraudulent inducement claim. Moore's

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Speaker 1: wife also sued, and the judge dismissed her lawsuit as well,

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Speaker 1: ruling that her claims were barred by the First Amendment.

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Speaker 1: What did the judge rely on? The precedent on which

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Speaker 1: he relies goes back a fairly long time, the most

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Speaker 1: outstanding which is the Hustler Magazine versus Fallwell. It was

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Speaker 1: a case brought by Jerry Fallwell Hustler Magazine based on

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Speaker 1: a Perry be that they did of him in the magazine.

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Speaker 1: This was the seven decision by the U. S. Supreme

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Speaker 1: Court that said, when you have a public figure, and

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Speaker 1: Judge Moore's public figure here for the first moment, bars

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Speaker 1: claim unless the publication contained a false statement of facts

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Speaker 1: that was made with actual malice. So long as the

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Speaker 1: speech could not reasonably be construed state actual facts about

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Speaker 1: its subject, then it's protected. And Judge Cronan said, here

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Speaker 1: the targeted speech can't be construed by a reasonable person

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Speaker 1: as having stated actual facts about Judge Moore, and the

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Speaker 1: court pointed to Cohen's ridiculous get up his antics during

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Speaker 1: the peace, so Conan eventually concluded this was obviously a

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Speaker 1: joke and now he may have stated things that were offensive,

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Speaker 1: but the Spreme Court has said, no matter how offensive,

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Speaker 1: this is, protected speech is political satire, and political satire

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Speaker 1: is among the most effective speech we have in this country.

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Speaker 1: Thanks Mary Ann. That's Marianne Pazanowski, senior legal reporter for

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Speaker 1: Blue Burg Law. Partisan controversy over voting rights flared at

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Speaker 1: a confirmation hearing for a New York based Federal Appeals

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Speaker 1: Court nominee who was questioned by conservative lawmakers over her

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Speaker 1: record working on election and voting law issues. But Biden

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Speaker 1: nominees for the Second and ten Circuit, both women and

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Speaker 1: former public defenders, moved forward in the process. Joining me

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Speaker 1: is Carl Tobias, a professor at the University of Richmond's

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Speaker 1: School of Law. So tell us about the nominees who

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Speaker 1: moved forward in the confirmation process. Well, Unicely for the

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Speaker 1: second Circuit and Veronica Rossman for the tenth Circuit had

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Speaker 1: their committee votes and both of them were approved and

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Speaker 1: sent to the floor so they could be confirmed as

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Speaker 1: soon as this week. UM. And so that's what happened

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Speaker 1: last week. UM. This afternoon, Tiffany Huntingham will have her

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Speaker 1: final confirmation vote at five thirty h to sit as

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Speaker 1: the first black member of the Federal Circuit in Washington.

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Speaker 1: Were the committee votes down partisan lines h in committee

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Speaker 1: on Thursday to some extent yes, but not completely. Um.

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Speaker 1: It was eleven to ten for Lee Uh and twelve

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Speaker 1: to ten for rossmand Graham took a pass and that

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Speaker 1: allowed it not to be a tie vote, so she

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Speaker 1: both of them went to the floor on the district

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Speaker 1: nominees from Western District of Washington for three emergencies out there.

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Speaker 1: Uh the votes were stronger as Todo was fifteen seven,

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Speaker 1: King was thirteen to nine. Lynn was closed eleven to ten.

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Speaker 1: So that was what happened last Thursday at the Executive

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Speaker 1: Business meeting. So now let's talk about the confirmation hearing

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Speaker 1: for another nominee to the Second Circuit Court of Appeals.

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Speaker 1: mRNA Perez tell us about her. First of all, well,

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Speaker 1: she has been an extremely strong and very effective voting

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Speaker 1: rights advocate at the Brennan Center in New York. And

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Speaker 1: Chuck Schumer, the Majority Leader, had recommended her very highly

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Speaker 1: to the White House and President Biden nominated her um

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Speaker 1: on and so she was up last week with some

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Speaker 1: district nominees, and the questions from Republicans were not very effective,

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Speaker 1: and she fielded all of them. You think it's safe

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Speaker 1: to say some Republican senators were not very satisfied with

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Speaker 1: her responses. But the questions were ones about, for example,

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Speaker 1: her judicial philosophy. Was she an originalist? Uh? And those

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Speaker 1: kinds of questions, and she gave pretty standard answers um

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Speaker 1: which a number of Republicans appointees of President Trump had

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Speaker 1: given to very similar kinds of questions. Uh. And so

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Speaker 1: the Republicans ultimately were reduced to saying she would be

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Speaker 1: a voting rights and civil rights activists on the court.

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Speaker 1: But she said she completely understood the different roles that

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Speaker 1: she would have. She would no longer be an advocate

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Speaker 1: as she has been for voting rights, but that she

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Speaker 1: would be impartial arbiter as a federal judge. And they

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Speaker 1: went back and forth. Three or four Republicans questioned her,

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Speaker 1: but she continued to say that, and so they accused

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Speaker 1: her of being a judicial activist. So let me ask

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Speaker 1: you this, does it seem different if a nominee has

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Speaker 1: practiced law, either civil or criminal, as opposed to a

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Speaker 1: nominee who has been an advocate for policy. So do

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Speaker 1: the Republicans have something of a point here, Well, there

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Speaker 1: is a point, Um, But many people have gone on

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Speaker 1: the federal bench who are advocate before they became judges, um,

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Speaker 1: both in Republican and Democratic administrations, and grassly waxed eloquent

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Speaker 1: about that it was no problem that someone had been

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Speaker 1: an advocate for civil rights and reeled off a number

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Speaker 1: of Trump appointees, um, which was somewhat disingenuous, but that

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Speaker 1: was that was what he said. So he recognized that

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Speaker 1: people could be strong advocates and still serve on the

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Speaker 1: federal match. Um. And so UM. I think she answered

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Speaker 1: as in as straightforward way as the Trump appointees did

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Speaker 1: and many others before her. Um. But that was the

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Speaker 1: argument that was being made by the Republican senators, I

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Speaker 1: think in asking her those questions over and over again. Carl, Obviously,

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Speaker 1: there's no requirement that someone be a lower court judge

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Speaker 1: before becoming an appellate court judge. But is it a

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Speaker 1: better practice, Just as eight of the nine justices currently

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Speaker 1: on the Supreme Court were circuit court judges before they

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Speaker 1: were elevated to the Supreme Court, is it better to

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Speaker 1: have someone who's been a judge before than elevate that

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Speaker 1: person to the federal Court of Appeals as they've been

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Speaker 1: elevating people in the federal courts of Appeals to the

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Speaker 1: Supreme Court. Well. Sure, and many of the sitting appello

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Speaker 1: judges around the country were elevated from the district bench.

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Speaker 1: And that's a practice that goes back a long way

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Speaker 1: in all Republican and Democratic presidents do that because it's easy,

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Speaker 1: the people have had a vote, we know what their

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Speaker 1: records are, uh, and all those kinds of ideas. But

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Speaker 1: there are plenty of fine lawyers who go on the bench,

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Speaker 1: especially the appellate bench. UH. And I can think of

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Speaker 1: them in Republican and Democratic administrations like Um on the

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Speaker 1: Seventh Circuit, people like Frank Easterbrook or UM, Richard Posner, UM,

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Speaker 1: Robert Bourke on the DC Circuit, UH, antonin Scalia and

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Speaker 1: many others. So those were happened to be academic, so

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Speaker 1: it was familiar with them. But UM, but there is

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Speaker 1: no magic in it. Is you know, it's desirable to

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Speaker 1: know your way around uh federal district court practice to

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Speaker 1: be on appeals court. But it's not just positive The

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Speaker 1: Second Circuit Court of Appeals, which encompasses New York, Connecticut,

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Speaker 1: and Vermont, is a high profile court of appeals. It's

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Speaker 1: located in Manhattan, and it's the chief venue for cases

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Speaker 1: involving corporations and Wall Street. And neither of the Biden

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Speaker 1: nominees to that circuit court has been a judge. No.

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Speaker 1: Uniquely was in the New York Public Defenders system for

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Speaker 1: almost two decades and has been a federal public defender

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Speaker 1: after that. UM, and Paris has mostly been doing voting rights,

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Speaker 1: I think litigation and advocacy. Many judges on the appellate

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Speaker 1: courts go directly to those courts from all kinds of

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Speaker 1: UH circumstances. UM. Certainly active practitioners in the lower courts

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Speaker 1: are familiar with federal court practice. UM. And don't forget

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Speaker 1: Katangi Brown Jackson for the d C Circuit was a

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Speaker 1: district judge since when she was elevated by President Pype.

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Speaker 1: So you know, there have been some and there'll be more,

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Speaker 1: who have come from the lower federal courts UH to

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Speaker 1: be elevated to the district courts. But humor isn't responsible

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Speaker 1: for the choice of Katanji Brown Jackson. So I'm just

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Speaker 1: wondering why he didn't pick a district court judge to elevate.

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Speaker 1: There are plenty of fine judges on the Eastern District

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Speaker 1: and on the Southern District who could have been elevated,

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Speaker 1: thinking of Oatken and Chan on the Eastern District. Um,

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Speaker 1: but um that those recommendations were made board with what

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Speaker 1: the White House said it would like by way of

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Speaker 1: the people to be nominated, that they have experiential diversity,

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Speaker 1: and Unice Lee and um uh Rna Pirez bring those qualities.

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Speaker 1: H So that is, you know, part of working with

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Speaker 1: the White House on appellent nominee. So. Now, a coalition

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Speaker 1: of more than fifty legal groups, including several state criminal

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Speaker 1: defense organizations, sent a letter to the Senate Judiciary Committee,

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Speaker 1: the leaders of the committee, saying that Biden's judicial nominees

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Speaker 1: with public defender backgrounds are being singled down for extra criticism.

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Speaker 1: What's the point of this letter, Well, I think to

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Speaker 1: push back on the Republican senators who have been critical

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Speaker 1: of U federal public defenders who are nominees because they

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Speaker 1: say those nominees don't have broad enough experience. An example

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Speaker 1: was Nice Lee into Arms of Civil procedure. But she

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Speaker 1: has a wealth of experience, as do all the other

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Speaker 1: nominees who have been federal public defenders in the federal

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Speaker 1: court system, and so it's an unfair criticism. And I

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Speaker 1: think they were just saying that these nominees are all

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Speaker 1: highly qualified and would be excellent federal judges, and so

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Speaker 1: it isn't fair to single them out because they've been doing, uh,

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Speaker 1: this kind of work, which of course the White House

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Speaker 1: is concerned about it in terms of experiential diversity, given

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Speaker 1: the wealth and high percentages of former federal prosecutors on

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Speaker 1: for example, the Second Circuit, I think seven or so

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Speaker 1: of president um judges of that court or federal prosecutors

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Speaker 1: before they ascended to the bench. I want to turn

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Speaker 1: to Justice Stephen Bryer because he told CNN he hasn't

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Speaker 1: decided when he's going to retire from the court, that

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Speaker 1: his health would be the primary consideration, with the court

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Speaker 1: being a second factor. He said he enjoys his new

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Speaker 1: seniority and the justices private discussions over cases, and this

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Speaker 1: has caused a lot of frustration among liberals. For example,

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Speaker 1: Demand Justice Is executive director Brian Fallon said, in other words,

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Speaker 1: this is about ego. It's remarkably like why Justice Ginsburg

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Speaker 1: stayed on. Well, I think that's the concern that people have,

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Speaker 1: and we've talked before that it's a very difficult, important

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Speaker 1: decision that people make when they decide to retire. And

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Speaker 1: so the concern is one similar to Justice Ginsberg, and

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Speaker 1: that is, if Democrats lose the majority in two then

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Speaker 1: that opportunity to replace Justice Prior may be lost. That's

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Speaker 1: the concern. He's pretty smart, and my guess is he

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Speaker 1: has considered it, uh and thought it through very carefully.

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Speaker 1: And of course the Democrats may retain their majority, and

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Speaker 1: there's opportunities until really until the Senate turns over in

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Speaker 1: early if that were to happen, and so, uh, there's

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Speaker 1: still time to go ahead and dominate confirmed someone for

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Speaker 1: a seat. Thanks Carl. That's Professor Carl Tobias of the

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Speaker 1: University of Richmond Law School. And that's it for the

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Speaker 1: sedition of the Bloomberg Law Show. Remember you can always

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Speaker 1: get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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Speaker 1: www dot Bloomberg dot com, Slash podcast Slash Law. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg