WEBVTT - Sacha Baron Cohen Wins Again Over Prank Interview

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Comedian Sasha Baron Cohen has beaten yet another lawsuit by

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<v Speaker 1>someone he hoodwinked in a prank interview. In a segment

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<v Speaker 1>on the Showtime series Who Is America, Cohen appeared as

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<v Speaker 1>counter terrorism instructor Colonel Aaron Morad discussing bogus military technology

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<v Speaker 1>with former Alabama Senate candidate Roy Moore, including a supposed

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<v Speaker 1>pedophile detector that beeped when placed near More. It is very,

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<v Speaker 1>very simple to use. You just switch it on and

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<v Speaker 1>because need of us or sex offenders, then it makes

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<v Speaker 1>absolutely nothing. You just put it on, you put it nearby,

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<v Speaker 1>write this, although hello, it must be faulty. More sued

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<v Speaker 1>for declamation to the tune of nine million dollars, joining

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

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<v Speaker 1>for those who are not bored at fans, tell us

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<v Speaker 1>about the interview. It was recorded for a show that

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<v Speaker 1>was broadcast on Showtime called Who Is America. This particular

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<v Speaker 1>episode aired in the summer eighteen, after Justice Moore had

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<v Speaker 1>run for unsuccessfully for the U. S. Senate from Alabama.

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<v Speaker 1>And during his campaign summer, women had come forward and

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<v Speaker 1>accused him of having had inappropriate sexual relationships with them

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<v Speaker 1>when they were much younger, and at least one of

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<v Speaker 1>them that she was under eighteen at the time that

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<v Speaker 1>he had a sexual relationship with her. He denied all

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

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<v Speaker 1>were ever proven, but they were out there. In this

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<v Speaker 1>particular episode of Who Is America begins with news clips

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<v Speaker 1>clips from various and sundry news organizations reporting on these

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<v Speaker 1>accusations about Justice more Now, he says he was lured

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<v Speaker 1>to Washington, d c. By Sasha Baron Cohen and his

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<v Speaker 1>production company to accept an award from the Israeli government

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<v Speaker 1>for being such a good friend to Israel. When he

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<v Speaker 1>got there, they said, oh, and by the way, we

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<v Speaker 1>have a general who's a terrorism expert and we want

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<v Speaker 1>he wants to interview you about getting this award. More

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<v Speaker 1>is brought into the interview at Sasha Baron Cohen dressed

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<v Speaker 1>up in one of his alter egos, and they begin

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<v Speaker 1>talking about how Alabama and Israel share a commitment to

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<v Speaker 1>fairness and honesty for all people, and at one point

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<v Speaker 1>Cohen says, we have developed technology to discover hiding places,

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<v Speaker 1>tunnels in which terrorists high and also, by the way,

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<v Speaker 1>this particular technology also tend detect enzymes secretions that are

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<v Speaker 1>only found in pedophile that pedophiles secrete enzymes that other

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

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<v Speaker 1>Cohen brings out the wand he puts it by himself,

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<v Speaker 1>and of course something happens. He puts it over by

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<v Speaker 1>More and it starts beeping. Cohen brings back himself, says,

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

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<v Speaker 1>another person, puts the one near the other person, it

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<v Speaker 1>doesn't beep, goes back to More, it starts beeping immediately,

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<v Speaker 1>and More immediately says I've been married for three or

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<v Speaker 1>three years. I've never had any accusations like this thrown

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

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

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<v Speaker 1>you a pedophile, and there must be something wrong with

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<v Speaker 1>this device. I don't know why it would do that.

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

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<v Speaker 1>and it revolved around a release More had signed tell

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<v Speaker 1>us about the judges reasoning, there is a doctrine in

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<v Speaker 1>the US law that says, if you can avoid a

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<v Speaker 1>constitutional question, do it. So the court starts with this

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<v Speaker 1>is called the doctor of constitutional awardance. Court starts with

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<v Speaker 1>this and says, well, we don't have to consider Sasha

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<v Speaker 1>Baron Cohen's first amendment defense is pre speech defense because

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<v Speaker 1>Judge Moore signed a standard consent agreement before he appeared

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<v Speaker 1>on the interview, and in this agreement, Judge Moore specifically

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<v Speaker 1>but without limitation waves and agrees not to bring at

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<v Speaker 1>any time in the future, any claims against the producer,

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<v Speaker 1>So can't bring any claims against the producer's assignese licensees

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<v Speaker 1>related to potential infliction of emotional distress, defamation, or fraud,

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<v Speaker 1>the exact three causes of action that Morey Moore alleged

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<v Speaker 1>in his complaints. Court goes on to stay under New

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<v Speaker 1>York flont you waived those claims. That language in the

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<v Speaker 1>contract is unambiguous. Is clear he signed the contract with

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<v Speaker 1>no expectation about being able to bring a lawsuit about

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<v Speaker 1>any conduct that would fit within those three causes of actions.

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<v Speaker 1>It's not a general release, it's a specific release. Essentially,

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<v Speaker 1>Cohen provided his own precedent because the judge in this

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<v Speaker 1>case cited an opinion by Judge Loretta Presca in another

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<v Speaker 1>case over Cohen's two thousand six four at film. So

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<v Speaker 1>the language in this release has been tested in court.

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<v Speaker 1>Apparently so um. What Judge Cronan here says is that

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<v Speaker 1>Judge Presca reached the same conclusion when she considered substantially

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<v Speaker 1>identical language in a release and dismissed claims brought by

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<v Speaker 1>individuals featured in Cohen's two thousand six films. More also

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<v Speaker 1>claimed the waiver was ineffective because it was obtained fraudulently.

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<v Speaker 1>How did the judge handle that? He also waived that

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<v Speaker 1>in the contract that he signed. According to the court,

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<v Speaker 1>the exact language provides participants knowledge is but in entering

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<v Speaker 1>this agreement, he's not relying on any promises or statements

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<v Speaker 1>made by anyone about the nature of the program or

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<v Speaker 1>the identity, behavior, or qualifications of any other participants cast members.

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<v Speaker 1>I think cast members should have been a red flag

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<v Speaker 1>there or other persons involved in the program. The assigning

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<v Speaker 1>this agreement with no expectations or understandings concerning the conduct,

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<v Speaker 1>offensive or otherwise of anyone involved in the program of

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<v Speaker 1>court said that language precludes the fraudulent inducement claim. Moore's

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<v Speaker 1>wife also sued, and the judge dismissed her lawsuit as well,

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<v Speaker 1>ruling that her claims were barred by the First Amendment.

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<v Speaker 1>What did the judge rely on? The precedent on which

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<v Speaker 1>he relies goes back a fairly long time, the most

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<v Speaker 1>outstanding which is the Hustler Magazine versus Fallwell. It was

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<v Speaker 1>a case brought by Jerry Fallwell Hustler Magazine based on

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<v Speaker 1>a Perry be that they did of him in the magazine.

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<v Speaker 1>This was the seven decision by the U. S. Supreme

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<v Speaker 1>Court that said, when you have a public figure, and

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<v Speaker 1>Judge Moore's public figure here for the first moment, bars

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<v Speaker 1>claim unless the publication contained a false statement of facts

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<v Speaker 1>that was made with actual malice. So long as the

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<v Speaker 1>speech could not reasonably be construed state actual facts about

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

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<v Speaker 1>the targeted speech can't be construed by a reasonable person

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<v Speaker 1>as having stated actual facts about Judge Moore, and the

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<v Speaker 1>court pointed to Cohen's ridiculous get up his antics during

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<v Speaker 1>the peace, so Conan eventually concluded this was obviously a

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<v Speaker 1>joke and now he may have stated things that were offensive,

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<v Speaker 1>but the Spreme Court has said, no matter how offensive,

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<v Speaker 1>this is, protected speech is political satire, and political satire

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<v Speaker 1>is among the most effective speech we have in this country.

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

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<v Speaker 1>Blue Burg Law. Partisan controversy over voting rights flared at

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<v Speaker 1>a confirmation hearing for a New York based Federal Appeals

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<v Speaker 1>Court nominee who was questioned by conservative lawmakers over her

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<v Speaker 1>record working on election and voting law issues. But Biden

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<v Speaker 1>nominees for the Second and ten Circuit, both women and

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<v Speaker 1>former public defenders, moved forward in the process. Joining me

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<v Speaker 1>is Carl Tobias, a professor at the University of Richmond's

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<v Speaker 1>School of Law. So tell us about the nominees who

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<v Speaker 1>moved forward in the confirmation process. Well, Unicely for the

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<v Speaker 1>second Circuit and Veronica Rossman for the tenth Circuit had

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<v Speaker 1>their committee votes and both of them were approved and

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<v Speaker 1>sent to the floor so they could be confirmed as

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<v Speaker 1>soon as this week. UM. And so that's what happened

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<v Speaker 1>last week. UM. This afternoon, Tiffany Huntingham will have her

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<v Speaker 1>final confirmation vote at five thirty h to sit as

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<v Speaker 1>the first black member of the Federal Circuit in Washington.

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<v Speaker 1>Were the committee votes down partisan lines h in committee

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<v Speaker 1>on Thursday to some extent yes, but not completely. Um.

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<v Speaker 1>It was eleven to ten for Lee Uh and twelve

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<v Speaker 1>to ten for rossmand Graham took a pass and that

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<v Speaker 1>allowed it not to be a tie vote, so she

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<v Speaker 1>both of them went to the floor on the district

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<v Speaker 1>nominees from Western District of Washington for three emergencies out there.

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<v Speaker 1>Uh the votes were stronger as Todo was fifteen seven,

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<v Speaker 1>King was thirteen to nine. Lynn was closed eleven to ten.

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<v Speaker 1>So that was what happened last Thursday at the Executive

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<v Speaker 1>Business meeting. So now let's talk about the confirmation hearing

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<v Speaker 1>for another nominee to the Second Circuit Court of Appeals.

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<v Speaker 1>mRNA Perez tell us about her. First of all, well,

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<v Speaker 1>she has been an extremely strong and very effective voting

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<v Speaker 1>rights advocate at the Brennan Center in New York. And

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<v Speaker 1>Chuck Schumer, the Majority Leader, had recommended her very highly

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<v Speaker 1>to the White House and President Biden nominated her um

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<v Speaker 1>on and so she was up last week with some

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<v Speaker 1>district nominees, and the questions from Republicans were not very effective,

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<v Speaker 1>and she fielded all of them. You think it's safe

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<v Speaker 1>to say some Republican senators were not very satisfied with

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<v Speaker 1>her responses. But the questions were ones about, for example,

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<v Speaker 1>her judicial philosophy. Was she an originalist? Uh? And those

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<v Speaker 1>kinds of questions, and she gave pretty standard answers um

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<v Speaker 1>which a number of Republicans appointees of President Trump had

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<v Speaker 1>given to very similar kinds of questions. Uh. And so

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<v Speaker 1>the Republicans ultimately were reduced to saying she would be

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<v Speaker 1>a voting rights and civil rights activists on the court.

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<v Speaker 1>But she said she completely understood the different roles that

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<v Speaker 1>she would have. She would no longer be an advocate

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<v Speaker 1>as she has been for voting rights, but that she

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<v Speaker 1>would be impartial arbiter as a federal judge. And they

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<v Speaker 1>went back and forth. Three or four Republicans questioned her,

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<v Speaker 1>but she continued to say that, and so they accused

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<v Speaker 1>her of being a judicial activist. So let me ask

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<v Speaker 1>you this, does it seem different if a nominee has

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<v Speaker 1>practiced law, either civil or criminal, as opposed to a

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<v Speaker 1>nominee who has been an advocate for policy. So do

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<v Speaker 1>the Republicans have something of a point here, Well, there

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<v Speaker 1>is a point, Um, But many people have gone on

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<v Speaker 1>the federal bench who are advocate before they became judges, um,

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<v Speaker 1>both in Republican and Democratic administrations, and grassly waxed eloquent

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<v Speaker 1>about that it was no problem that someone had been

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<v Speaker 1>an advocate for civil rights and reeled off a number

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<v Speaker 1>of Trump appointees, um, which was somewhat disingenuous, but that

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<v Speaker 1>was that was what he said. So he recognized that

0:13:07.480 --> 0:13:10.360
<v Speaker 1>people could be strong advocates and still serve on the

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<v Speaker 1>federal match. Um. And so UM. I think she answered

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<v Speaker 1>as in as straightforward way as the Trump appointees did

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<v Speaker 1>and many others before her. Um. But that was the

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<v Speaker 1>argument that was being made by the Republican senators, I

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<v Speaker 1>think in asking her those questions over and over again. Carl, Obviously,

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<v Speaker 1>there's no requirement that someone be a lower court judge

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<v Speaker 1>before becoming an appellate court judge. But is it a

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<v Speaker 1>better practice, Just as eight of the nine justices currently

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<v Speaker 1>on the Supreme Court were circuit court judges before they

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<v Speaker 1>were elevated to the Supreme Court, is it better to

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<v Speaker 1>have someone who's been a judge before than elevate that

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<v Speaker 1>person to the federal Court of Appeals as they've been

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<v Speaker 1>elevating people in the federal courts of Appeals to the

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<v Speaker 1>Supreme Court. Well. Sure, and many of the sitting appello

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<v Speaker 1>judges around the country were elevated from the district bench.

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<v Speaker 1>And that's a practice that goes back a long way

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

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<v Speaker 1>the people have had a vote, we know what their

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<v Speaker 1>records are, uh, and all those kinds of ideas. But

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<v Speaker 1>there are plenty of fine lawyers who go on the bench,

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<v Speaker 1>especially the appellate bench. UH. And I can think of

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<v Speaker 1>them in Republican and Democratic administrations like Um on the

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<v Speaker 1>Seventh Circuit, people like Frank Easterbrook or UM, Richard Posner, UM,

0:14:52.200 --> 0:14:56.520
<v Speaker 1>Robert Bourke on the DC Circuit, UH, antonin Scalia and

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<v Speaker 1>many others. So those were happened to be academic, so

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<v Speaker 1>it was familiar with them. But UM, but there is

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<v Speaker 1>no magic in it. Is you know, it's desirable to

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<v Speaker 1>know your way around uh federal district court practice to

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<v Speaker 1>be on appeals court. But it's not just positive The

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<v Speaker 1>Second Circuit Court of Appeals, which encompasses New York, Connecticut,

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

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<v Speaker 1>located in Manhattan, and it's the chief venue for cases

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<v Speaker 1>involving corporations and Wall Street. And neither of the Biden

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<v Speaker 1>nominees to that circuit court has been a judge. No.

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<v Speaker 1>Uniquely was in the New York Public Defenders system for

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<v Speaker 1>almost two decades and has been a federal public defender

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<v Speaker 1>after that. UM, and Paris has mostly been doing voting rights,

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<v Speaker 1>I think litigation and advocacy. Many judges on the appellate

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<v Speaker 1>courts go directly to those courts from all kinds of

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<v Speaker 1>UH circumstances. UM. Certainly active practitioners in the lower courts

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<v Speaker 1>are familiar with federal court practice. UM. And don't forget

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<v Speaker 1>Katangi Brown Jackson for the d C Circuit was a

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<v Speaker 1>district judge since when she was elevated by President Pype.

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<v Speaker 1>So you know, there have been some and there'll be more,

0:16:21.960 --> 0:16:26.120
<v Speaker 1>who have come from the lower federal courts UH to

0:16:26.320 --> 0:16:31.160
<v Speaker 1>be elevated to the district courts. But humor isn't responsible

0:16:31.200 --> 0:16:34.720
<v Speaker 1>for the choice of Katanji Brown Jackson. So I'm just

0:16:34.800 --> 0:16:38.600
<v Speaker 1>wondering why he didn't pick a district court judge to elevate.

0:16:39.320 --> 0:16:42.120
<v Speaker 1>There are plenty of fine judges on the Eastern District

0:16:42.280 --> 0:16:46.120
<v Speaker 1>and on the Southern District who could have been elevated,

0:16:46.280 --> 0:16:52.120
<v Speaker 1>thinking of Oatken and Chan on the Eastern District. Um,

0:16:52.200 --> 0:16:56.440
<v Speaker 1>but um that those recommendations were made board with what

0:16:56.840 --> 0:17:00.080
<v Speaker 1>the White House said it would like by way of

0:17:00.120 --> 0:17:03.600
<v Speaker 1>the people to be nominated, that they have experiential diversity,

0:17:04.040 --> 0:17:11.880
<v Speaker 1>and Unice Lee and um uh Rna Pirez bring those qualities.

0:17:12.320 --> 0:17:14.800
<v Speaker 1>H So that is, you know, part of working with

0:17:14.840 --> 0:17:18.440
<v Speaker 1>the White House on appellent nominee. So. Now, a coalition

0:17:18.440 --> 0:17:23.080
<v Speaker 1>of more than fifty legal groups, including several state criminal

0:17:23.119 --> 0:17:27.440
<v Speaker 1>defense organizations, sent a letter to the Senate Judiciary Committee,

0:17:27.480 --> 0:17:32.359
<v Speaker 1>the leaders of the committee, saying that Biden's judicial nominees

0:17:32.359 --> 0:17:37.600
<v Speaker 1>with public defender backgrounds are being singled down for extra criticism.

0:17:37.800 --> 0:17:40.720
<v Speaker 1>What's the point of this letter, Well, I think to

0:17:41.080 --> 0:17:46.080
<v Speaker 1>push back on the Republican senators who have been critical

0:17:46.720 --> 0:17:52.160
<v Speaker 1>of U federal public defenders who are nominees because they

0:17:52.240 --> 0:17:57.920
<v Speaker 1>say those nominees don't have broad enough experience. An example

0:17:58.080 --> 0:18:02.960
<v Speaker 1>was Nice Lee into Arms of Civil procedure. But she

0:18:03.040 --> 0:18:05.320
<v Speaker 1>has a wealth of experience, as do all the other

0:18:05.400 --> 0:18:08.320
<v Speaker 1>nominees who have been federal public defenders in the federal

0:18:08.320 --> 0:18:12.359
<v Speaker 1>court system, and so it's an unfair criticism. And I

0:18:12.359 --> 0:18:15.640
<v Speaker 1>think they were just saying that these nominees are all

0:18:15.720 --> 0:18:20.800
<v Speaker 1>highly qualified and would be excellent federal judges, and so

0:18:20.960 --> 0:18:25.080
<v Speaker 1>it isn't fair to single them out because they've been doing, uh,

0:18:25.119 --> 0:18:27.040
<v Speaker 1>this kind of work, which of course the White House

0:18:27.800 --> 0:18:31.280
<v Speaker 1>is concerned about it in terms of experiential diversity, given

0:18:31.920 --> 0:18:39.720
<v Speaker 1>the wealth and high percentages of former federal prosecutors on

0:18:40.720 --> 0:18:43.240
<v Speaker 1>for example, the Second Circuit, I think seven or so

0:18:43.440 --> 0:18:49.880
<v Speaker 1>of president um judges of that court or federal prosecutors

0:18:49.920 --> 0:18:53.320
<v Speaker 1>before they ascended to the bench. I want to turn

0:18:53.400 --> 0:18:57.560
<v Speaker 1>to Justice Stephen Bryer because he told CNN he hasn't

0:18:57.560 --> 0:19:01.000
<v Speaker 1>decided when he's going to retire from the court, that

0:19:01.119 --> 0:19:04.600
<v Speaker 1>his health would be the primary consideration, with the court

0:19:04.720 --> 0:19:08.000
<v Speaker 1>being a second factor. He said he enjoys his new

0:19:08.080 --> 0:19:13.080
<v Speaker 1>seniority and the justices private discussions over cases, and this

0:19:13.119 --> 0:19:17.360
<v Speaker 1>has caused a lot of frustration among liberals. For example,

0:19:17.680 --> 0:19:22.000
<v Speaker 1>Demand Justice Is executive director Brian Fallon said, in other words,

0:19:22.160 --> 0:19:26.960
<v Speaker 1>this is about ego. It's remarkably like why Justice Ginsburg

0:19:27.119 --> 0:19:30.440
<v Speaker 1>stayed on. Well, I think that's the concern that people have,

0:19:31.040 --> 0:19:35.080
<v Speaker 1>and we've talked before that it's a very difficult, important

0:19:35.080 --> 0:19:38.960
<v Speaker 1>decision that people make when they decide to retire. And

0:19:39.040 --> 0:19:43.440
<v Speaker 1>so the concern is one similar to Justice Ginsberg, and

0:19:43.600 --> 0:19:48.520
<v Speaker 1>that is, if Democrats lose the majority in two then

0:19:49.200 --> 0:19:53.960
<v Speaker 1>that opportunity to replace Justice Prior may be lost. That's

0:19:54.000 --> 0:19:56.879
<v Speaker 1>the concern. He's pretty smart, and my guess is he

0:19:57.000 --> 0:20:00.880
<v Speaker 1>has considered it, uh and thought it through very carefully.

0:20:00.920 --> 0:20:03.560
<v Speaker 1>And of course the Democrats may retain their majority, and

0:20:03.560 --> 0:20:08.000
<v Speaker 1>there's opportunities until really until the Senate turns over in

0:20:08.200 --> 0:20:13.560
<v Speaker 1>early if that were to happen, and so, uh, there's

0:20:13.600 --> 0:20:16.680
<v Speaker 1>still time to go ahead and dominate confirmed someone for

0:20:16.760 --> 0:20:19.960
<v Speaker 1>a seat. Thanks Carl. That's Professor Carl Tobias of the

0:20:20.040 --> 0:20:23.040
<v Speaker 1>University of Richmond Law School. And that's it for the

0:20:23.080 --> 0:20:25.879
<v Speaker 1>sedition of the Bloomberg Law Show. Remember you can always

0:20:25.920 --> 0:20:28.680
<v Speaker 1>get the latest legal news on our Bloomberg Law Podcast.

0:20:29.040 --> 0:20:32.080
<v Speaker 1>You can find them on Apple Podcasts, Spotify, and at

0:20:32.240 --> 0:20:37.119
<v Speaker 1>www dot Bloomberg dot com, Slash podcast Slash Law. I'm

0:20:37.200 --> 0:20:39.399
<v Speaker 1>June Grosso and you're listening to Bloomberg