A “Borat”-related privacy suit has for the first time passed a legal test thanks to a lamentable decision by a Mississippi judge in the case of a woman who makes only the most fleeting of appearances in the “mockumentary.”

Even though Ellen Johnston appears for only three seconds in a “Borat” scene depicting a crowd of worshippers at a Pentecostal camp meeting who ecstatically witness the title character's apparent conversion to their faith, U.S. District Judge W. Allen Pepper denied a motion to dismiss her claims for false light invasion of privacy and misappropriation of her likeness.

A Los Angeles judge earlier this year dismissed the similar privacy claims (see table) of two fraternity brothers and a rodeo spectator depicted in “Borat.”

But Pepper bent over backwards to accommodate Johnston, who, after originally accusing the filmmakers of mocking her religion, now contends that “Borat” falsely portrayed her as being a willing participant in that mockery.

“It is beyond mere speculation,” he said in his opinion, that the camp meeting scene

would be highly objectionable to a reasonable person in the plaintiff’s position ... such that a person in the plaintiff’s position would believe others would believe she willingly participated in a mocking of her religion.

The test, however, is not what a reasonable person “would believe others would believe,” but what that person would believe. As an attorney for the filmmakers said in a court brief, “[A]nyone viewing the Borat movie would understand Johnston genuinely thought that the fictional character Borat was a real person and that his spiritual experience was real.”

The film “accurately depicts Johnston simply being herself in the context of a religious service” and “does not 'clear[ly] and unmistakeabl[y]' suggest that ... she knew at the time that Borat was 'mocking' her religion,” attorney John C. Henegan added.

On the misappropriation claim, Pepper said it was undisputed that “Borat” is a commercial enterprise, but never explained how the filmmakers could conceivably profit from the use of the image of someone whose appearance in an 84-minute movie is so incidental.

The judge also brushed aside the First Amendment protections for “expression by means of motion pictures,” noting that “Borat is different from a purely fictional work.”

“[A]lthough the viewer is aware that the plot itself is fictional and that the characters of Borat and his producer are fictional, the viewer is also aware that the vast majority, if not all, of the other people featured in the movie are non-public figures who are not actors and are likely unaware that Borat is not a Kazakhstani [sic] reporter filming a documentary for Kazakhstan,” he said.

But “Borat's” melding of fact and fiction is at the very core of its artistic expression. “[T]he film does not work if viewers believe that those persons in the film who interact with Borat know that Borat is a fictional character,” Henegan said in his brief.

Hopefully, the 5th U.S. Circuit Court of Appeals will reverse a ruling that could chill even the most daring of filmmakers from depicting real people, however briefly, without their express permission.