For our April Fool’s Day edition of the Case of the Week, we visit the California Court of Appeal, which supplies us with a case touching on constitutional law, contracts, defamation, and, of course, the law of April Fool’s jokes. Not surprisingly, our case involves Sasha Baron Cohen, known popularly as Borat and Ali G.
A 2004 episode of Mr. Cohen’s British television show got his network into a bit of trouble, and it had to pay the alleged target of his jokes $90,000. When the infuriated supposed subject came back for more, it ended up in American court, raising the question: could a reasonable viewer take the show seriously, resulting in a judgment for defamation?
The Art of Amending
On a 1987 youth trip to Israel, Sasha Baron Cohen began a friendship with a woman known only as Jane Doe in court proceedings. The friends lost touch over the years, but Ms. Doe followed Mr. Cohen’s increasingly successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe’s real name.
On the Aug. 15, 2004, episode of Mr. Cohen’s television show, Da Ali G Show, Mr. Cohen interviewed the American author, Gore Vidal. Among the topics of conversation was the United States Constitution and the practice of amending it.
Mr. Cohen asked Mr. Vidal if it were not sometimes better to get rid of something rather than amending it. As an example, he referred to Ms. Doe. Using her real name and referring to her with a term also used to describe a female dog, he said Ms. Doe was always trying to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her private regions.
Mr. Cohen said Ms. Doe’s “amending” was for naught because he dumped her after he impregnated her. (Ms. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature.)
Given what Mr. Cohen claimed were Ms. Doe’s unsuccessful attempts at amending herself, he reasoned that amending anything—including the Constitution of the United States—was ill-advised.
With no apologies to Vidal Sassoon, the people of the Eastern Hemisphere, or George Washington, in his role as Ali G, Mr. Cohen went on to suggest that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a means of exterminating the elderly in Asia, and that Denzel Washington resided at Mount Vernon.
Ms. Doe was not amused.
Da Ali G Show was produced by Britain’s Channel Four Television Corp. and distributed in the United States by HBO. After complaints from Ms. Doe, HBO settled with her in 2004 for $40,000. As part of the settlement, HBO agreed to edit the episode so Ms. Doe’s name would be removed in any future broadcasts.
Well, Ms. Doe’s fame—or infamy, depending on one’s perspective—continued. When HBO presented the episode on Comcast, it left Ms. Doe’s name in the airing of the show, resulting in another settlement with Ms. Doe in 2006 with the same terms as the 2004 settlement, except this time Ms. Doe received an additional $50,000 payday.
Nevertheless, viewers of Da Ali G Show had not heard the last of Ms. Doe.
When a friend of Ms. Doe’s saw the unedited version—that would be the one with Ms. Doe’s name—on YouTube after the second settlement, he contacted her, and they discovered a viewer in Estonia had uploaded the clip from Finnish television, which had received the unedited version from Channel Four.
No more settlements. Ms. Doe decided to take her battle to court.
The Law of April Fool’s
Ms. Doe sued HBO and Mr. Cohen in California state court, and later added Channel Four as a defendant. She sued on multiple grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional distress.
Channel Four moved for summary judgment—a legal ruling where one side wins the case before it even gets to trial—arguing, among other things, that no reasonable person could have understood Mr. Cohen’s statements as factual.
The trial court sided with Channel Four.
“No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G's statements are similarly absurd,” the trial court said.
Ms. Doe appealed, but she fared no better with the California’s Second District Court of Appeal in Doe v. Channel Four Television Corp. Citing cases involving comedian Robin Williams and an April Fool’s joke, the appellate court agreed that no reasonable person could have taken Mr. Cohen seriously. Thus, the court held, there was no defamation.
In the case involving Robin Williams, Polygram Records, Inc. v. Superior Court, California’s Third District Court of Appeal held there was no defamation when Mr. Williams did a skit where a wine distributor complained that there was white wine and red wine, but no “black wine.”
The court noted Mr. Williams said the so-called black wine was tough enough to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with “anything it damn well pleased.” The court added that no reasonable person could have taken Mr. Williams seriously and that to hold the skit defamatory would run afoul of the First Amendment.
Likewise, in San Francisco Bay Guardian, Inc. v. Superior Court, California’s First District Court of Appeal held there was no defamation when, in its April Fool’s Day edition, the San Francisco Bay Guardian newspaper ran a fictitious letter from a landlord stating that he found his tenants who had undergone electroshock therapy where much more cooperative because no reasonable person would take the fake letter seriously.
Today’s legal lesson is that—even if it involves an electroshocked tenant with shaved privates drinking black wine—it’s tough to win a defamation action against a comedian.
David Horrigan is a Washington, DC, attorney, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: firstname.lastname@example.org