Sacha Baron Cohen is taking heat up and down from conservatives over his portrayal of numerous “right-wing” public figures on his Who Is America? series. Many have sued or threatened to sue. Will they win? It’s highly doubtful. Why? Because he interviews public figures that have probably signed a release.

Public Figures Must Prove Malice and Dodge Anti-SLAPP

In the past few months, Showtime has aired Who Is America? episodes showing public figures saying or doing some highly controversial things in interviews they were duped into doing with Cohen. In each instance, Cohen is in heavy disguise and claiming to be someone he isn’t, using deceit in an attempt to have the interviewer lower their guard.

  • Jason Spencer, a Georgia state lawmaker, resigned after his episode showed him using a racial epithet to describe African-Americans.
  • Daniel Roberts, a gun activist, is shown biting a sex toy, while he thought he was taping a training video.
  • Roy Moore, the former Alabama Senate candidate already in hot legal trouble over alleged pedophilia, is shown getting irate and walking off set after Cohen’s character uses a “pedophile scanner” on him, and it starts beeping. Moore thought he was airing an episode on anti-terrorism technology.
  • Joe Walsh, the former Illinois Congressman, in seen advocating arming small children when he thought he was receiving an award for his support of Israel.

Due to some founding principles of our country, public figures are given less protection from free speech than private citizens. The intent here is that if someone is going to put themselves in the public eye and get a lot of public airtime, citizens should have greater leeway in showcasing their true colors.

Therefore, to bring a defamation suit, these public figures will have to prove actual malice, and overcome anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes. These statutes make it easier to have lawsuits dismissed if the topic of the alleged defamatory language is something the public is interested in. Who Is America? is all about public-interest topics, and therefore it would be hard to see how anti-SLAPP would ever not apply. And Cohen is a comedian. He will undoubtedly say this was all done in good fun, with no actual malice.

Did You Sign Any Papers?

In most, and perhaps all, of these cases, the interviewee had signed release papers that indemnify Cohen and his producers from legal claims. These contracts are usually kept purposefully vague so that the document covers pretty much all of the words and actions in the interviews. If these papers have been signed by the interviewee after they have been given the chance to review them with lawyers, the release will stand up in court.

Even if plaintiffs could get around the Public Figure, anti-SLAPP and Release issues, it would be very hard to prove defamation. After all, in these instances, it is the interviewee’s own words that are defamatory, not Cohen’s. They may have a better chance to win a defamation suit if they sued themselves.

If you have been the victim of defamation, contact a local defamation attorney who can review your case and advise you on next steps.

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