Marcus Hunter
As former New York City mayor Rudy Giuliani appears to literally melt under the growing pressure of pursuing baseless election lawsuits on the Trump campaign’s behalf,[1] it’s easy to forget that late last year he was embroiled in an entirely different scandal. In late October, Giuliani appeared in a light most charitably described as unflattering in the sequel to Sacha Baron Cohen’s Borat.[2] After an interview with Borat’s teenage daughter (played by twenty-four-year-old actress Maria Bakalova), Giuliani retreats to a hotel room with her, appearing to begin removing his pants before Cohen bursts in to the rescue. Giuliani denies he was doing anything inappropriate in Borat Subsequent Moviefilm, but if he wishes to bring suit against Cohen he will fight an uphill battle.[3] Many have sued Cohen for his Borat capers, but none successfully.[4] This is likely due to the legal team advising him along the way and reinforcing his satire with ironclad releases and waivers supplemented by careful study of First Amendment protections and state law, from anti-SLAPP statutes to recording consent rules.
Cohen’s legal success stems primarily from the extensive consent agreements participants must sign before appearing in his films. These contracts, typically indemnifying Cohen and his production companies while fully integrating the contract to prevent outside oral statements from being entered into evidence, are tailormade for Cohen’s brand of unpredictable and improvisational style.[5] This artful drafting protects Cohen against claims of fraud and misrepresentation – especially important when he appears in character to cause chaos – and has typically led to successful 12(b)(6) motions to dismiss based on the terms of the consent agreements entered into by participants in his films.[6]
On the rare occasion these contracts do not convince a court, free speech protections step in to bolster Borat. Cohen’s team ably navigates anti-SLAPP statutes to ensure Cohen remains on the protected side of speech whenever producing a film. Strategic lawsuits against public participation, known as SLAPP suits, aim to suppress their targets’ free speech and chill criticism rather than actually seek to resolve a dispute.[7] Anti-SLAPP statutes have taken root in a number of states, including California, and protect exercise of free speech provided it raises or discusses important public issues.[8] Cohen’s team has successfully argued under California’s anti-SLAPP statute that a suit arising from Cohen’s conduct while he was in character as Bruno met California’s anti-SLAPP requirement by presenting “gay culture, lifestyles, rights and the public reactions to those issues” in a scene from the film Bruno.[9] Even when courts go outside the four corners of the consent agreements drafted by Cohen’s legal team, state and federal laws in the interest of protecting free speech continue to cut in the Borat performer’s favor.
When it comes to Giuliani, his status as a public figure further protects Cohen’s portrayal of him in Borat Subsequent Moviefilm. Under the New York Times v. Sullivan standard, Giuliani would need to show “actual malice” in Cohen’s portrayal, intentionally or recklessly creating a false impression of Giuliani in the film.[10] Barring an extraordinary revelation about the recording of Giuliani being altered in some way, “actual malice” is extremely unlikely to be found here. Giuliani has already repeatedly conceded that at least some of the footage is legitimate, as he repeatedly extolls the press that he was only “tucking in [his] shirt.”[11] As for the hidden cameras recording him, even Giuliani’s unawareness fails to bolster his case; New York only requires one party to consent to a secret recording, and such recordings are admissible as evidence in a civil suit.[12] Perhaps this is why, even as Giuliani proclaims his innocence on social media, he has failed to file suit against Cohen or 20th Century Fox. Even if he does, he is unlikely to break Cohen’s impeccable winning streak in defamation suits.
[1] https://www.nytimes.com/2020/11/19/style/rudy-giuliani-hair.html
[2] https://www.nbcnews.com/politics/donald-trump/rudy-giuliani-caught-compromising-position-new-borat-film-n1244187
[3] https://www.nytimes.com/2020/10/21/us/politics/rudy-giuliani-borat.html
[4] https://www.usatoday.com/story/entertainment/celebrities/2020/10/23/can-rudy-giuliani-sue-sacha-baron-cohen-borat-2-embarrassment/3731724001/
[5] https://www.nytimes.com/2018/08/19/arts/television/sacha-baron-cohen-lawsuits-who-is-america.html
[6] Psenicska v. Twentieth Century Fox Film Corp., 409 F. App'x 368 (2d Cir. 2009).
[7] https://anti-slapp.org/what-is-a-slapp
[8] Cal. Civ. Pro. Code §425.16.
[9] Olson v. Sacha Baron Cohen, No. B221956, 2011 Cal. App. Unpub. LEXIS 6888 (Sep. 12, 2011).
[10] N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964).
[11] https://twitter.com/RudyGiuliani/status/1319031305120657410
[12] People v. Lasher, 58 N.Y.2d 962 (1983); see also N.Y. Penal Law §§ 250.00, 250.05; N.Y. C.P.L.R. §4506(1).