Susan Estrich: Borat! Apocalypto!

Of course Judge Joseph Biderman of the Los Angeles Superior Court was right in denying two South Carolina college students’ requests to chop their scenes out of “Borat” simply because they made racist fools of themselves. Even if the students acted like idiots because they were manipulated by movie producers who forced them to get drunk and sign waivers, as they are reportedly alleging, there will be time later to litigate whom the true fools and fooled are.

In the meantime, the students really shouldn’t be so worried about their reputations.

After all, look at Mel Gibson.

He blamed the world’s wars on the Jews and not only won the weekend, but his new movie opened bigger than “Braveheart.” The word is that Disney is launching a campaign to promote him for an Oscar, with the subtext that an anti-Semitic rant isn’t nearly as bad as what Woody Allen or Roman Polanski did.

So what do these kids have to worry about? Compared to Mel?

The issue in all of these “Borat” lawsuits is the validity of waivers drafted to stand up in precisely these circumstances. The reason most of these plaintiffs are relying on oral representations is because otherwise, based on what they signed, they lose. That’s not a good position to be in, if you know what I mean. Moreover, when you’re trying to quash free speech in advance of a full trial on the merits, which is essentially what the college boys are trying to do, the burden is especially heavy. Demanding that a judge take a scissors to a movie, pretrial, no less, is an extraordinary sort of remedy. It requires, as Judge Biderman properly recognized, a showing both that the party seeking that kind of relief is (very) likely to win on the merits and that money damages would be inadequate to compensate him for the loss. Neither was established here, nor is it easy to see that they could be.

In Gibson’s case, it is becoming astonishingly clear that his anti-Semitic rant may not have cost him or Disney at all, in terms of damages. Nikki Finke reports in Deadline Hollywood Daily that the weekend box-office estimate of $14.2 million far exceeded both the star’s and the studio’s expectations.

Why no price to pay?

Here these poor boys are worried about a racist rant, and Mel Gibson is laughing all the way to the bank.

It’s not what it says about him, but what it says about us that troubles me.

Do we not care how he behaved? Why are we laughing at the “Borat” boys if we’re all headed to “Apocalypto” the next weekend?

Have I been missing Woody Allen movies for all these years for no reason at all?

Was it because it was “mere” anti-Semitism, and America doesn’t really care about that? Would it have made any difference if it were another group, another race, that was insulted? Where is Borat when we need him?

One of the messages of “Borat” is to underscore the prevalence of anti-Semitism, both of the European and American version. The “Running of the Jew” and the “running of the mouth” are both expertly engineered by Sacha Baron Cohen, himself an observant Jew who has stepped out of character with the press to underscore his commitment to addressing issues of anti-Semitism.

After Mel Gibson’s famous rant, the silence in Hollywood among top studio executives — with the notable exception of Sony’s Amy Pascal — was stunning. Why was it so difficult for so many, so many of them Jews themselves, to say anything? Because of personal relationships, or because they accurately predicted future box office? Because that’s all they cared about, even then?

The “Borat” boys are claiming lost job opportunities because of their racist rants.

I almost hope it’s true. In Mel’s case, no such luck. Clearly.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Copyright 2006 Creators Syndicate Inc.