Rudy Giuliani’s unwitting, uh, performance in Sacha Baron Cohen’s Borat Subsequent Moviefilm raised both serious questions and eyebrows across the Twittersphere on Wednesday.
Do a search right now on this website for Giuliani and Borat.
Just do it.
— George Conway (@gtconway3d) October 21, 2020
While we can’t help you unsee the images of America’s Mayor and the now-infamous “tuck,” we can offer some perspective on what it all means—legally.
1. Could Sacha Baron Cohen be guilty of posting “revenge porn”?
It was immediately asserted and circulated widely that image gone viral of Giuliani on a bed with his hand in his pants constituted revenge porn.
In 2019, New York Governor Andrew Cuomo (D) signed a law that made “revenge porn” a crime. Under the statute, anyone who shares an intimate image without the subject’s consent can face up to a year in jail, plus civil damages.
The problem, though, with any potential prosecution of Sacha Baron Cohen for revenge porn, is that even if Rudy had been cruelly tricked, the images shared of him likely wouldn’t be considered “intimate.” The applicable law requires nakedness; though Rudy’s “tuck” might be considered “sexual,” that’s not enough under the statute.
Law&Crime Network legal analyst Julie Rendelman, a criminal defense attorney and former New York prosecutor, gave the following explanation of the law to Law&Crime:
“I do not believe that Cohen’s posting of an image or video of Giuliani with his hand down his pants rises to a violation of New York’s revenge porn law. To be guilty of violating such a law would require that the posting depict an ‘unclothed or exposed intimate part’ of a person. Further, the word ‘Intimate’ is defined in New York law as ‘naked genitals, pubic area or anus…’. Unless the video actually shows Guiliani’s genitals, pubic area or anus, which it doesn’t appear to, there is no violation of this law.”
Interestingly, the claim that the image amounts to revenge porn would seem to be an admission that it depicted Giuliani doing something sexual, which is not what Giuliani says happened.
2. Could Rudy Giuliani sue Sacha Baron Cohen in civil court for “false light”?
That depends on what was actually going on in that hotel room.
The film shows 24-year-old actor Maria Bakalova with Giuliani in a Manhattan hotel room. Giuliani appears to cooperate with the interview, tells Bakalova to give him her phone number and address, and at times, touches Bakalova.
Posing as a sound technician, Cohen joins the “interview,” and pretends to argue with Bakalova. Giuliani appears to drink alcohol during the interview. He is eventually shown, sitting on a bed as Bakalova helps him remove his microphone, untucking his shirt in the process. Giuiani then lays down on the bed, reaches into his unbuttoned pants, and gestures inside his pants for an extended period of time, while Bakalova stands over him. The scene is interrupted when Cohen bursts back into the room, saying, “She’s 15. She’s too old for you!” The actress plays Borat’s daughter in the movie.
Giuliani’s take on the scene was that it was a set up. He was on his back on a bed tucking in his shirt, according to him.
(1) The Borat video is a complete fabrication. I was tucking in my shirt after taking off the recording equipment.
At no time before, during, or after the interview was I ever inappropriate. If Sacha Baron Cohen implies otherwise he is a stone-cold liar.
— Rudy W. Giuliani (@RudyGiuliani) October 21, 2020
The Onion has already had a field day with this: “Rudy Giuliani Releases Video Of Himself Masturbating To Show What It Would Actually Look Like.”
This is the best Onion headline I’ve seen in years. Well done. https://t.co/ej7pitmG8K
— Dave Schilling (@dave_schilling) October 22, 2020
There is certainly a possibility that Giuliani could bring a claim against Cohen for portraying him in a false light. Such claims are similar to those for defamation, and center on whether a person has been embarrassed by being portrayed in a misleading way. In order for Giuliani to prevail on such a claim, he’d need to prove that the producers of the film recklessly portrayed him in a false or misleading light, and that the portrayal is highly offensive or embarrassing to a reasonable person of ordinary sensibilities. Further, because Giuliani is a public figure, the publication of the portrayal must have been done with actual malice.
Such a case would be quite difficult for Giuliani to win. First, his on-camera actions speak for themselves.
This doesn’t look like Rudy Giuliani tucking in his pants. pic.twitter.com/8wftBTAKP1
— Molly Jong-Fast🏡 (@MollyJongFast) October 22, 2020
Even if Giuliani’s argument is that he film appears to show him making lewd gestures when he’d actually been adjusting his shirt, he’d face an uphill battle on this point. The footage that’s been released thus far is ambiguous at best. If it’s unclear what the video even purports to show, then it’s difficult to argue that it’s false. Those who have seen the Giuliani scene, however, say it’s “wilder than it sounds.”
I’ve seen the Giuliani moment in Borat 2. It’s even wilder than it sounds. Beyond cringe.
— Maureen Dowd (@maureendowd) October 21, 2020
“Beyond cringe,” said New York Times columnist Maureen Dowd.
Of course, if Giuliani were to prove that Cohen’s video footage had been digitally altered to make it appear he’d been doing something he wasn’t, that’s a different story. Still, any argument that the video’s portrayal was false would hinge on Giuliani showing what he was actually doing with his hands down his pants. Proving a “tuck” would likely rest on Giuliani’s testimony, which may or may not be entirely convincing.
Michael Cohen confirms Rudy Giuliani is “drunk all the time” pic.twitter.com/bM9n6CvCn1
— Acyn Torabi (@Acyn) October 16, 2020
3. Did Sacha Baron Cohen break any laws by filming Giuliani without his consent?
New York is a “one-party” consent state for purposes of call monitoring or recording an in-person conversation. This means that so long as one person consents, they can legally record or monitor electronic communications. Therefore, even if Rudy Giuliani argues that he didn’t agree to being filmed while with Maria Bakalova, she agreed, and that’s enough.
Then there’s the likely killer of any lawsuit, even before one starts: Giuliani signing a waiver. Standard practice would be for participants in a mockumentary (other film) to sign legal releases waiving any right to sue the filmmaker. As a lawyer, Giuliani couldn’t convincingly claim that he didn’t understand a waiver, so if he signed one, it’s probably going to cut off his right to sue. Others have tried to sue Sacha Baron Cohen for his stunts, and they’ve run up against similar obstacles.
[Image via Drew Angerer/Getty Images]
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