By Jonathan Stempel
NEW YORK (Reuters) - A U.S. appeals court in Manhattan on Friday appeared unlikely to revive former Alabama judge Roy Moore's lawsuit accusing Sacha Baron Cohen of defamation for falsely portraying him as a sex offender on the British comedian's show "Who Is America?"
Moore, 75, sued for $95 million in September 2018 over an interview in Washington, D.C., where the former Republican chief justice of Alabama's Supreme Court and U.S. Senate candidate expected to receive an award for supporting Israel.
Instead, Baron Cohen, 50, disguised as fictional Israeli anti-terrorism expert Erran Morad, waved a wand-like device that purportedly detected pedophiles, and which beeped when waved near Moore.
The interview occurred after Moore had lost his 2017 Senate race in heavily Republican Alabama, following accusations that Moore committed sexual misconduct toward female teenagers while in his 30s.
Moore has denied those accusations, and Baron Cohen's lawyers have called the device "completely fake."
During oral arguments before the 2nd U.S. Circuit Court of Appeals, Circuit Judge Gerard Lynch suggested that the interview was merely a commentary on the accusations.
"Is there a plausibility to the idea that this magic wand detects pedophiles?" Lynch asked Moore's lawyer, Larry Klayman. "That's what Cohen adds to this story. Otherwise he's just saying, 'These are accusations that were made against this man.'"
Klayman countered that calling someone a pedophile was a "smear" worse than labeling him a murderer.
He asked the three-judge panel "to sit in the shoes of Judge Moore, whatever you may think about him ... and to say: Would you want to be branded a pedophile like this, on international television?"
Baron Cohen's lawyer, Elizabeth McNamara, argued, with little interruption from the panel, that Moore waived his claims by signing a consent agreement to be interviewed, and the claims were barred under the U.S. Constitution's First Amendment.
"As the court below found, this was clearly a joke, and no reasonable viewer could have seen it otherwise," she said. "Whether you found it funny or not, this was clearly satirical commentary."
"Who Is America?" was broadcast on Paramount Global's Showtime network, a co-defendant.
Baron Cohen previously prevailed in several lawsuits over his 2006 mockumentary "Borat! Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan."
The case is Moore et al v Cohen et al, 2nd U.S. Circuit Court of Appeals, No. 21-1702.