An Oct. 15 Style article on a sexual harassment accusation against cable TV host Bill O'Reilly incorrectly said that it is illegal in the state of New York to tape a telephone conversation without the other party's consent. The practice is legal if at least one of the participants is aware of the taping. (Published 10/16/04)
Bill O'Reilly and the Fox News Channel producer accusing him of sexual harassment hit the airwaves yesterday in an increasingly ugly war of words as the anchor acknowledged that his career is on the line.
"I knew I was going to get vilified and vile stuff was going to be put out there," O'Reilly said in a telephone interview. "It's very embarrassing to have this stuff out there. Any human being would be depressed to see this. . . . This is the worst day of my life. . . . I have to protect the people closest to me. If I have to suffer, that's the way it has to be."
O'Reilly said he could not, on his lawyer's advice, address producer Andrea Mackris's accusations that he subjected her to graphic phone-sex chats -- a tactic that her attorney, Benedict Morelli, seized upon.
"Guys like O'Reilly who like to espouse what right-wing Republicans espouse about family values shouldn't be doing stuff like this," he said, adding: "The man knows he did it. He finally got it through his thick skull that he did it, and he's not going to get away with it. . . . He's going down."
Although attorneys, publicists and media critics differ on whether O'Reilly is handling the accusations wisely, there is one point of agreement: The nation's most popular cable news host, who often lectures guests on morality and recently wrote a book of advice for children, could be badly tarnished if the allegations are proved.
After Rush Limbaugh, who acknowledged an addiction to painkillers, and William Bennett, who admitted he had a gambling habit, O'Reilly -- a television and radio host and best-selling author -- is the latest high-profile conservative commentator to face humiliating allegations. But O'Reilly and Fox responded by filing a preemptive lawsuit against Mackris and Morelli, accusing them of extortion.
Mackris, 33, took her case to "Good Morning America" and "Today" yesterday, telling the ABC program: "There were definitely threats. I was threatened."
Asked why she returned to "The O'Reilly Factor" in July, after a few months at CNN, if the earlier conversations were so offensive, Mackris said: "I came back because he agreed to not ever talk to me that way again." But then, she said, "the language was ratcheted up. He pushed the boundaries further and further from what I had established."
O'Reilly, who is 55 and married, defended himself on his Fox show the last two nights and on the "Live With Regis and Kelly" program yesterday, saying: "I knew that by filing this lawsuit I was going to perhaps ruin my career. . . . If I have to go down, I'm willing to do it. But I've got to make a stand."
Said Morelli: "That's a very interesting comment to make for a guy who is innocent, isn't it? Mr. Family Values. Mr. No-Spin Zone. Ask him, did he do it?"
O'Reilly's attorney, Ronald Green, would not deny that the sexual conversations had taken place, saying he could not address whether his client "used a particular word or phrase at any time as part of a joke." He said that the lurid, highly detailed "snippets" recounted in Mackris's lawsuit could have been "taken out of context" or "spun for exaggeration," and that O'Reilly "wants to hear the tapes if they exist." Green said he has witnesses who say Mackris told them that she decided to tape O'Reilly when the four-year employee returned to Fox.
Morelli declined to say whether the conversations were taped. In New York, it is illegal to tape a phone conversation without the other party's consent.
O'Reilly's broadly worded denial of illegal conduct with Mackris, an intern in the first Bush White House, carried echoes of another intern scandal.
"When you draw that first line, it better be a line that's going to hold," said Mark Fabiani, a California crisis-management consultant who worked in the Clinton White House. "If it doesn't, you're often in a worse position than you would be if you said nothing. . . . It happened in the Monica Lewinsky situation," when President Clinton denied having sexual relations with that woman, "which is the statement that everyone remembers to this day."
But Keith Appell, a conservative publicist with Alexandria-based Creative Response Concepts, said that "in the court of public opinion, it very much matters how you look. You can act innocent or act guilty. If you react with humility mixed with righteous indignation, a lot of people will give you the benefit of the doubt until more information is learned."
Vanity Fair critic James Wolcott, who writes about O'Reilly in his new book "Attack Poodles and Other Media Mutants," said the host could become late-night comedic fodder. "If she's got the documentary goods, he's in real trouble," Wolcott said. "His only defense would be the Marion Barry defense," that he was set up by a scheming woman. "What will hurt him is there's so many weird and bizarre details, and weird details stick in people's minds, like Monica's blue dress."
In her suit against O'Reilly, Fox and Westwood One, which carries O'Reilly's radio show, Mackris said that in numerous phone conversations her boss suggested she buy a vibrator, boasted of having taught women to masturbate, discussed what kind of sex they should have together and launched into "a vile and degrading monologue" after interviewing two porn stars on "The O'Reilly Factor."
Mackris alleged in the suit that when she told O'Reilly in April that he had engaged in similar conduct with other staffers and should be careful, he replied: "If any woman ever breathed a word I'll make her pay so dearly that she'll wish she'd never been born. . . . It'd be her word against mine and who are they going to believe? Me or some unstable woman making outrageous accusations. They'd see her as some psycho, someone unstable."
In his lawsuit, announced hours before Mackris filed her litigation, O'Reilly noted that not even the producer claims any "adverse employment action" based on their relationship. He noted that Mackris told a friend at CNN in a Sept. 7 e-mail that her life at Fox was "wonderful, amazing, fun, creative, invigorating, secure, well-managed, challenging" and that she was "surrounded by really good, fun people."
Green said Mackris had originally demanded $600 million but reduced the figure to $60 million -- the amount her lawsuit claims O'Reilly's TV show generates annually for Fox -- in settlement talks with Fox lawyers. Morelli called the two-week discussions "garden-variety negotiations."
"There is just no resolution to people asking for $60 million," O'Reilly said in the interview. "I don't know what they're after. I don't know what they want." But O'Reilly -- whose show has often dealt with such salacious cases as sexual charges against Michael Jackson and Kobe Bryant -- said he cannot be drawn into "a trial by media."
He described yesterday's coverage of the case -- which drew the banner New York Daily News headline "O'REALLY!" -- as "let's get the hangman's noose."
Green said Fox and O'Reilly are amending their lawsuit to seek court permission to fire Mackris without that being considered retaliatory action. But Morelli said it was exactly that and called the extortion accusation "garbage."
"The fact that they brought a lawsuit against her and me is illegal," he said. "They're digging their own graves deeper and deeper."
Plato Cacheris, a former lawyer for Lewinsky, said potential plaintiffs negotiating for money is "very routine: 'I'm thinking of suing you but I'd like to discuss a settlement.' "
Debra Katz, an attorney who specializes in sexual harassment cases, said that when a company sues an employee who is about to file a harassment complaint, "the courts are more inclined to see it as a retaliatory lawsuit." Asked if Mackris's case was weakened by her decision to return to Fox, Katz said O'Reilly's alleged conduct "went from what could be seen as sexual banter about 'you should buy a vibrator' to really disgusting, unwelcome sexual remarks."
But Washington lawyer Lanny Davis said he would have advised O'Reilly to seize the offensive because "when a charge of sexual harassment makes the headlines, you are presumed guilty until proven innocent. That's a reality, whether it's fair or not."
The lawsuits also have a political subtext. Morelli, a contributor to John Kerry and the Democratic Party who was once a regular on a Fox News Channel legal show, said in the lawsuit that Fox News and O'Reilly "preach the principles of so-called 'compassionate conservatism' espoused by George W. Bush and the Republican Party." In the extortion suit, Green said that by demanding quick action so late in the campaign, "Mackris and Morelli have sought to extract maximum leverage against Fox and O'Reilly right before the presidential election."
"He said he wanted to punish Fox and Bill O'Reilly," Green said.
"That's absurd," Morelli said.
Will the litigation hurt O'Reilly in the short term? "He lives for moments like this," said Philadelphia Inquirer television columnist Gail Shister. "He's a warrior. If anything, this will bring him even more publicity. This is juicy stuff for the show."
But an unusually downcast O'Reilly didn't sound like he was enjoying the combat yesterday. "Two weeks ago, I had no clue my life was going to take a turn like this," he said. "I have a 30-year record."
He said that while the case might be hard for journalists to write about, "it's a thousand times harder for me to sit here in my little chair and contemplate what people are saying about me."