Rudy Giuliani's 'Borat 2' scene: What can he do about it legally? Not a lot, experts say
Rudy Giuliani has been well and truly pranked, and by the master scamp of the "Borat" gotcha movies, Sacha Baron Cohen. And there's precious little he can do about it in the courts of law or public relations, say lawyers and crisis experts.
Sure, he can bellow on Twitter against Baron Cohen, calling him a liar while trying to explain what he was doing flat on his back on a hotel bed with his hands down his pants (he says he was tucking in his shirt) and a young "reporter" by his side in a scene from Baron Cohen's latest, "Borat 2," streaming now on Amazon Prime.
But so far Giuliani, 76, has not hired a lawyer to help him take Baron Cohen to court to block the film (full name: “Borat Subsequent Moviefilm: Delivery of Prodigious Bribe to American Regime for Make Benefit Once Glorious Nation of Kazakhstan") or to sue for libel, defamation or just the general monkey business for which Baron Cohen has become notorious.
'This is a hit job, I assure you':Rudy Giuliani responds to eyebrow-raising situation in 'Borat 2'
And Baron Cohen, shielded by crack Hollywood lawyers waving airtight consent forms and "appearance releases," is not shaking in his mankini. For one thing, he has been sued multiple times since the first "Borat" movie, and so far he hasn't lost a case.
USA TODAY reached out to one of Giuliani's many lawyers, Robert Costello, but did not receive a response.
Does Rudy Giuliani have legal recourse?
"Sacha Baron Cohen is very smart. He knows what he’s doing, he's been through all this before," says entertainment lawyer Nicole Page, a partner at the New York law firm Reavis Page Jump. "Giuliani doesn't have a claim."
If he did, he would have sued in July, when the episode was filmed, after which Giuliani said he called the cops. (The NYPD had no comment.)
"If he wanted to do something, he could have tried to enjoin distribution of the film so he would not be caught on camera in a hysterically funny, incredibly humiliating situation," Page says.
Giuliani, a former federal prosecutor who's now President Donald Trump's personal lawyer, can hardly plead ignorance of the law or of the consent form he would have been required to sign or that he somehow signed under duress, Page says. (Giuliani has not confirmed whether he signed a release form, but that would be standard in any film production and not just Baron Cohen's, Page says.)
"He knows what he signed, and that’s why he’s not suing," she says. "He might do something as some kind of gesture, but it will cost a lot of money and he’s going to lose."
Larry Gross, a communications professor at the University of Southern California, says he'd be astounded if Baron Cohen and his team weren't protected by strong release forms. "Nearly every single one of their (films) involve people not being pleased about what ends up onscreen," Gross says.
How has Sacha Baron Cohen fared against earlier 'Borat' lawsuits?
So far, he's the clear winner in courthouses, says Zachary Elsea, an attorney at the entertainment and intellectual property law firm Kinsella Weitzman Iser Kump in Santa Monica, California.
In the latest example, a lawsuit filed in Fulton County, Georgia, against Amazon and Baron Cohen was dismissed last week by the plaintiff, the daughter of a Holocaust survivor who alleged that her mother, Judith Dim Evans, was tricked into appearing in the “Borat 2” sequel. Michelle Dim St. Pierre sought a court order that would have forced the producers to remove her mother from the film.
But after the judge indicated he was likely to toss the lawsuit, St. Pierre and her lawyer withdrew it, says Russell Smith, the Los Angeles lawyer who represented Amazon and Cohen in the case, and who has represented Cohen in numerous lawsuits filed over the "Borat" movies. He confirmed that no one has yet bested Cohen in court over "Borat."
“The lawsuit was dismissed, unconditionally," Smith told USA TODAY. “The lawsuit is over." He said Baron Cohen was "deeply grateful" to the late Evans for her "compassion and courage" as a Holocaust survivor who had touched the hearts of people who have seen the film.
This case followed the same pattern as previous cases against Baron Cohen and "Borat," lawyers say.
"The agreements and standard waivers usually bar lawsuits at an early stage, usually they're tossed at the motion-to-dismiss stage and few make it past that," Elsea says. "I'm not aware of anyone getting a money judgment over any of Cohen’s antics."
If the plaintiff is a public figure, as Giuliani certainly is, then he still has to prove all the other factors under thecontrolling legal case, New York Times v. Sullivan. (That's the landmark U.S. Supreme Court 1964 decision that held the First Amendment requires public figures to prove malice and reckless disregard for the truth in libel and defamation suits.)
"It’s an uphill battle," Elsea says. "Slander and libel and defamation are notoriously difficult for public figures to prove."
"Giuliani is so clearly a public figure under Sullivan, so that weakens him enormously," Gross adds.
Page believes Baron Cohen's lawyers have been advising him carefully "pretty much every step of the way" since he first conceived his Borat character. "If he's been sued that many times and won, then someone is getting something right," she says.
Is there any legal wiggle room for Giuliani?
One question is whether Giuliani, who was first interviewed on visible cameras by the actor playing a "reporter" for a fake conservative news show in the film, was aware there were hidden cameras in the bedroom where they went for drinks at her suggestion.
"Did he have a presumption of privacy? There could be some potential legal wiggle room if he fairly assumed he was off-camera," Gross says.
He could argue that, Page says, but he wouldn't get far. "New York is a one-party consent state (to secret recording), so as long as one party consented, it’s not illegal," she says.
Who has been damaged the most from this episode?
The PR pros are sure about this: It's Giuliani, the former heroic 9/11 New York City mayor who has been criticized for his devotion to defending Trump.
By contrast, Baron Cohen, well-pleased with his rascally alter ego, has raked in millions in free publicity for his film.
"Rudy Giuliani is a joke and people know he’s a joke, and this is just going to further denigrate his reputation," says Seth Horowitz, president of the Horowitz Agency, an integrated public relations firm with Hollywood clients. "Even his own daughter says 'Don’t listen to my father.' This is just reinforcing his fall from grace."
Giuliani would risk putting this episode front and center if he tried to go after Baron Cohen in court, Horowitz says. It would just be further ammunition for the people who already view him with contempt, and it won't change the minds of those who still admire him.
It's smarter to lay low, wait for the storm to pass and for some other wacky scandal to lurch into view. And something usually does.
"The cat is already out of the bag. It’s already exposed," Horowitz says. "He’s going to explain it away like everything in this post-2016 era, hope it disappears and carry on with the mission of getting Trump reelected."
Howard Bragman of LaBrea Media, another veteran PR adviser in Hollywood, says Giuliani's public image is now "pretty baked in" in a way that won't be affected one way or the other by Baron Cohen's "Borat" mischief.
"History will not be as kind to Rudy today as it was after 9/11, and it's nobody’s fault but Rudy Giuliani's," Bragman says. "He has nobody but himself to blame."