A Valuable “Cultural Learnings of America”: Borat, College Boys, and Law as Protection Racket

Sacha Baron Cohen, has made brilliant use of the media in a variety of comedy sketches that provide a tremendous amount of mocking socio-cultural commentary to a society, in England and the United States, that had, until recently appeared to lose their sense of humor. The boyakasha website provides a tremendous amount of fan based information.

One of his characters, Ali G, rocketed Cohen to stardom first on England’s Channel Four and then on the U.S.’s HBO. Ali G purports to be a person of indeterminate ethnic extraction whose entire persona is based on his interpretation of British Black street culture. He has interviewed a great number of prominent people from John McCain, to Ralph Nader, to Noam Chomsky to high ranking English clergy.

Cohen developed a number of subsidiary characters to more sharply draw on the possibilities of mocking the foibles of modern Anglo-American culture, society and politics. One of them, Bruno, purports to be a gay Austrian television presenter. The other, one of the most successful was a character named Borat Sagdiyev, a television reporter ostensibly from a send up Republic of Kazakhstan, whose reporting on the goings on in the United States and England brought all of our hypocrisies, cultural pimples and self delusions into stark relief.

All of these characters are at their most effective when they are able to induce the people interviewed, from high profile members of the elite to the most ordinary of people, to drop their guard. Usually it is quite funny, sometimes it is disturbingly revealing. “The British comedian has perfected his act as the apparently naive reporter whose enthusiastic offensiveness either leaves his interviewees in shock or persuades them to reveal a little too much of their own prejudices.” Ian Youngs, “How Borat Hoaxed America," BBC, Oct. 23, 2006.

The elite, and especially the social, political and media elite, does not approve. Media coverage of Cohen’s characters has been stiff at best, and usually disapproving. This approach was especially intense in connection with the release of the first full length treatment of the Borat character, as he interviewed his way across the united States. The movie, “Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan” released Nov. 3, 2006 in the United States. An example is recent coverage in the BBC (cited above) on the way in which Cohen is able to “dupe” the “victims” who participate in his mock interviews in the making of “Borat: Cultural Learnings.”

Most of Borat's victims were ensnared in a similar way. They would be contacted by a woman calling herself Chelsea Barnard from a fictional film company, One America Productions.

They would be told about the foreign correspondent making a film about life in the US, with the pitch tailored to each person's specialist subject.

Then on the day of the interview, they would be presented with a release form at the last minute, be paid in cash and, finally, Borat would amble in, beginning with some serious subjects before starting his provocative routine.

"We're all primed to do an academic dissertation, we did our homework," says yoga teacher Grace Welch, another member of the three-strong feminist panel.

"And as we're talking, out of the blue, he says: 'Do you know Baywatch?'

"I knew something was going on but I didn't know what it was. I'm looking at the cameramen and everyone was stony-faced. And then he would come out with outrageous things."

Ms Stein first tried to throw Borat out when he started talking about women having smaller brains than men.

The producer persuaded her to carry on, apologetically explaining that Borat did not realise he was saying anything wrong.

But the final straw came when Borat asked the women to lift up their shirts at the end of the interview. Id.

The coverage drips with “moral” judgment, barely concealed accusation, and a bit of condescension; and not just the press. The Republic of Kazakhstan has shown both an inclination to suppress and to humor the Borat character. In November 2005, reports began floating of possible legal action against Cohen by the government of Kazakhstan. See “Kazakh Challenge to Ali G,” BBC, November 14, 2005 (“The Kazakh Foreign Ministry said it may move to prevent Cohen presenting the country in a "derogatory way".”). By December 2005 the Kazakh government shut down Cohen’s Ali G web site; see “Kazakhs Shut Ali G Star’s website," BBC, Dec. 14, 2005. Still, by September 2006, the Kazakh government had toned down its rhetoric, though distribution of media products containing the Borat character would likely remain in short supply within Kazakhstan. See “Kazakhs ‘See Funny Side of Borat,’” BBC, September 29, 2006. Yet, in the same month it was announced that the president of Kazakhstan would fly to the United States ahead of a Kazakh publicity campaign to combat the image of Kazakhstan portrayed by Borat; reportedly the President of Kazakhstan intended to raise the issue of Borat with American President Bush. “Bush to Hold Talks on Ali G Creator After Diplomatic Row,” The Daily Mail, Sept. 12, 2006 (“President Nazarbayev will visit the White House and the Bush family compound in Maine when he flies in for talks that will include the fictional character Borat.”). It seems that Cohen no longer has to write his own material; but, then, that is the point.

Life imitates art on other fronts as well. For example, consider the reaction in Germany to the “Borat: Cultural Learnings” movie. It appears that a human rights group has filed a complaint against the movie in Germany. The Age.com reported on November 2, 2006 that the European Centre for Antiziganism Research apparently filed a complaint with the Hamburg state prosecutor arguing that the movie slanders gypsies. But not a peep from the Germans about the sequences featuring Jews, including the already notorious song sequence, “In My Country There is Problem (Throw the Jew Down the Well)” sequence. The cultural impact of that number is hinted at by its imitations on You-Tube. Of course, the notoriety (and perhaps even infamy) of this sequence rests not only on the song itself—its lyrics as a condensed thesis of core ideas shaping Jew hatred at its most irrational—but also for the way it has “outed” a stratum of thought that, like that in the lawsuit discussed below is usually nicely concealed).

In a greater twist of life imitating art, the New York Times reported on November 11, 2006 that a lawsuit had been filed in Los Angeles County court by several people who had been interviewed by Borat, and whose interview appeared in the movie “Borat: Cultural Learnings.” Ben Sisario, “Students Sue Over “Borat” Roles,” The New York Times, Nov. 11, 2006 at A18. The plaintiffs, a number of students at an unnamed university in South Carolina, were appear in the movie making racist and misogynistic comments to Borat. The New York Times reported that the plaintiffs allege that they were “plied with liquor by the production crew before their scene and thus ‘engaged in behavior that they otherwise would not have engaged in.’” (Id.). The suit seeks injunctive relief (to prohibit displays of plaintiffs’ likeness in the movie) and for monetary damages (of course). (Id).). At least one web site has posted the complaint, John Doe v. One America Productions, Superior Court of California, Los Angeles County, Case No. SC 091723. The Complaint, filed November 9, 2006, asserts causes of action for (1) fraud, (2) rescission of contract, (3) common law false light, (4) statutory false light, (5) appropriation of likeness, and (6) negligent infliction of emotional distress.

While the Complaint, as a whole, suggests that Borat could be right—life tends to imitate art, even at its most absurd, I will focus a socio-legal comment or two on one aspect of the litigation—the fist cause of action for fraud. Several key allegations are worth noting in that regard. First, the Complaint alleges that the plaintiffs were induced to appear in the movie because they had been told by defendants that the movie would not be shown in the U.S. (and that this was a lie). Complaint paragraph 12. Before the filming began, the plaintiffs (at least one of whom was under 21 years of age (Complaint paragraph 13)) were allegedly induced to drink heavily. Complaint paragraphs 13-14. Now nice and drunk, the plaintiffs were induced to sign a “Standard Consent Agreement. Complaint paragraph 14. The participation of the plaintiffs in the movie, accompanied by more drinking, immediately followed. Complaint paragraph 15. Now here is the key:

“Believing that the film would not be viewed in the United States, and at the encouragement of DEFENDANTS, PLAINTIFFS engaged in behavior that they would otherwise not have engaged in. Then Film was indeed released in the United States and PLAINTIFFS’ said behavior was included as part of the FILM without their consent.” Complaint paragraph 17.

Let us briefly consider this cluster of allegations and their purported legal effects. There are a number of ways of looking at these factual allegations.

1. The facts might suggest that the plaintiffs appeared to be happy to reveal their opinions about women and minorities, but only for foreign audiences. That suggests that they are engaging in serial acts of fraud every time they speak on these matters in the United States and fail to reveal their real opinions. Where the people to whom they speak suffer damage as a consequences, I guess the plaintiffs have now opened themselves up to multiple lawsuits crafted on the framework they themselves use for their own suit. Funny!

2. Let’s try another one: plaintiffs suggest that “demon liquor” made them act involuntarily. Essentially, plaintiffs appear to suggest that the liquor released their inner demons that made them act unlike themselves. It was the liquor talking, not them. I don’t have much to say about this, other than that generations of people have used this line effectively to cover a host of antics, more of less successfully, in the court of inter personal relations. Alcohol and volition have had an interesting relation in law. I am sure that strange relationship will only be amplified in this case (assuming it survives long enough to get to trial).

3. Here is another variation, I suppose: our innocent plaintiffs were tricked into “acting out” by a combination of alcohol and manipulative statements. Effectively, our innocents were, in ways intimately understood by the criminal defense bar, entrapped into committing offense—or better put, into revealing their baser opinions. Entrapment is discouraged in law—though not necessarily in everyday human interaction. These opinions, no less deeply held because they remained unuttered, are effectively protected against disclosure by the law. Trickery can constitute an involuntary disclosure that is somehow actionable.

Plaintiffs appear intent on teaching us a lesson that Sacha Cohen as Borat could only intimate in the film: fraud is a contextual thing, and the law privileges some kinds of fraud over others. In the world as plaintiffs might construct it, it is perfectly acceptable to pass through life perpetrating a fraud on all they deal with respecting their own identities and opinions. In plaintiffs’ world, law protects their freedom to suggest to women and members of minority groups, perhaps like those from whom they seek jobs or other favors, that they hold opinions irreconcilable with those they actually hold, without cost, irrespective of the costs to the persons who hear this stuff. But giving plaintiffs permission to speak their minds (by suggesting to them, for example, that their truthfulness will never be revealed to the groups they want to continue to mislead) itself can constitute a fraud against which the law provides redress.

Alternatively, plaintiffs seem to suggest that law protects socially constructed constraints (sobriety) and actively guards the boundaries of permissible consent. Indeed, one might see in the way the Complaint is constructed both a sensitivity to these principles and a great effort to exploit them. Thus the heavy emphasis on alcohol, the corruption of the under aged, the sweet-tongued lies of older and more powerful people (drawing on the inequities of power disparities with overtones to sexual harassment discourse), and the encouragement to say things that perhaps they did not mean to please the people for whom they were performing. But perversion comes in a variety of flavors and taints in a number of ways. It is possible to use good concepts for bad ends. It is likely that great protections can be turned into useful means of avoiding responsibility. The courts will eventually tell us which is the better way to construct the plaintiffs in this case—innocents tricked into “not being themselves” or ordinary humans indulging an opportunity to be themselves without cost who, when the true cost is revealed try to seek cover in principles that were never meant for them. Whichever way the court leans, there remains the lingering feeling that if the suit is successful legally cognizable fraud will have been used to privilege a socio-cultural fraud. Surely that ought not be right.

It may well be true that “Mr. Cohen and his staff lie really well” (Complaint paragraph 2), but the truths that his characters reveal is a sight to behold. And the attempts to use the law of fraud to permit those who participated to perpetrate their own fraud—the unchecked power to spin comments that they make—is both the greatest irony and the greatest lesson of “Borat: Cultural Learning.” The lawsuit, more than the movie, perhaps, provides us with a window onto the greatest “cultural learning” of our own society, its law, and its pathologies.