Known for his outrageous and controversial movie characters, Sacha Baron Cohen has become a pro at dodging legal bullets. Because of his penchant for crossing the line, it should come as no surprise that he is now embroiled in another lawsuit. However, this time there is an unexpected twist — David Letterman is playing a supporting role as a co-defendant in the suit.

So what is the basis for this odd legal coupling? None other than Cohen’s blockbuster hit comedy, Brüno. The film is a “mockumentary,” and one in which Cohen, playing the flamboyantly homosexual title-character, engages in painfully uncomfortable interviews with unsuspecting participants. One such participant, and the plaintiff in the current lawsuit against Cohen and Letterman, was Ayman Abu Aita. In the interview at issue, Brüno portrays Aita as the terrorist group leader of Al-Aqsa Martyrs Brigade, an alliance of Palestinian nationalist militias in the West Bank that has been designated as a Foreign Terrorist Organization by the Secretary of State. Similarly, while promoting the film on The Late Show with David Letterman, Cohen and Letterman bantered about the experience of interviewing the terrorist, Aita. The dialogue eventually segued into Letterman showing a clip of the interview with Aita, which contained a caption that read, “terrorist group leader al-aqsa martyrs brigade.”

In December 2009, Aita filed suit in the United States District Court for the District of Columbia against Cohen, Letterman, NBC Universal, and a variety of other media conglomerates alleging three counts of libel and slander for falsely branding him as a terrorist, and seeking damages of at least $110 million, as well as an injunction against further commercial distribution of the film by whatever means.

At first glance, it appeared that Cohen would not be able to talk his way out of this one. Thankfully for him, the fine lawyers at NBC paid attention in their Civil Procedure class, and have honed in on an issue that could dismiss the case entirely — subject matter jurisdiction. In his complaint, Aita alleged that complete diversity jurisdiction existed among all of the parties — a requirement under Article III, Section 2 of the Constitution. However, in its recently filed motion to dismiss, NBC reminds us that in order for an alien, such as Aita, to invoke diversity jurisdiction, he must show that a dispute exists between “citizens of a State and citizens or subjects of a foreign state.” For a foreign national to be considered a “citizen or subject of a foreign state,” the foreign national must demonstrate that the country of his nationality is recognized by the Executive branch.

Unfortunately for Aita, who is a Palestinian national, Palestine is unsurprisingly not recognized as a foreign sovereign by the United States. For this reason, NBC argues, Aita does not qualify as a “citizen or subject of a foreign state”; thus, he cannot invoke diversity jurisdiction and his complaint must be dismissed. In the alternative, NBC argues that even if Palestine is recognized as a foreign state by the U.S. government, subject matter jurisdiction is still lacking. NBC points out that Cohen is not a U.S. citizen, but rather a British subject. Therefore, because both Cohen and Aita are aliens, complete diversity is destroyed, and the U.S. District Court for the District of Columbia does not have subject matter jurisdiction to hear Aita’s claim.

The judge has yet to rule on NBC’s motion to dismiss. However, even if the motion is granted, the result would only be favorable to Cohen, as he would be dropped from the lawsuit. Should Aita choose to re-file, he could still do so against Letterman and NBC.

Casey McLaughlin

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