In an April 3 ruling, U.S. District Court Judge Deborah A. Batts hammered an attempt by the fallen King of Cable News to seal key documents from a lawsuit filed by three of his accusers, Rachel Witlieb Bernstein, Andrea Mackris and Rebecca Gomez Diamond (Mackris and Diamond joined a lawsuit originally filed by Bernstein).
Why did these women sue O’Reilly? Because they had reached settlements over sexual harassment or mistreatment — and then O’Reilly, years later, whined about being victimized by a “political and financial hit job” and claimed that he’d never “mistreated” anyone. Such complaints, charged the accusers in a suit filed last December in the Southern District of New York, amounted to defamation and breach of contract, among other charges.
As part of his defense, O’Reilly asked the court to place certain legal documents stemming from his arrangements with Diamond and Mackris “to be filed in redacted form and under seal,” according to Batts’ ruling. “Only the arbitration clauses included in the Confidential Agreements have any relevance to the pending motions, and the parties have significant privacy and reliance interests in maintaining the confidentiality of the remaining, irrelevant, portions of the agreements that outweigh any public interest in the full text of the Confidential Agreements,” argued O’Reilly lawyer Andrew Bourne in a letter.
No dice, ruled the judge. Any consideration of O’Reilly’s motions, wrote Batts, “relies heavily on a full examination of the Settlement and Arbitration Agreements in question.” There’s a need for the court to show its work in this regard, too: “When this Court issues its Opinion on his Motion, the public deserves to see what judicial document it relied on,” the judge argued in her opinion.
Yet Batts’ demolition of another O’Reilly contention is easily the sweetest aspect of this particular judicial document. One of O’Reilly’s arguments, as the judge noted, is that the agreements relate to “embarrassing conduct with no public ramifications.” To rebut this hilarity, Batts quoted guidance from a previous case: “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents.”
Batts also noted that the “First Amendment protects access to judicial documents if the documents ‘are necessary to understand the merits’ of the proceeding.” On this front, O’Reilly failed, according to the judge.
“Defendant O’Reilly has not even come close to rebutting this First Amendment presumption. O’Reilly only refers to generalized ‘privacy interests,’ ’embarrassing conduct’ and the overarching policy goals of maintaining confidentiality in private agreements. . . . He does not articulate what privacy interests he holds, or how redactions or sealing would be narrowly tailored to achieve those interests.”
The case is powered by O’Reilly’s mouth. After he was fired from Fox News, the discredited host decided not to cop to any of his alleged behavior. Instead, he lashed out against those motivated to take him down. “My conscience is clear,” he said during a September 2017 appearance on the “Today” show — alongside Matt Lauer, of all people. “If you look in totality, this was a hit job — a political and financial hit job,” he riffed. There were other such outbursts, and his accusers eventually decided they’d had enough: His claims that the charges against him were part of a “hit job” amounted to a contention that their allegations were baseless, that they were lying, in effect. The three women are being represented by lawyers Nancy Erika Smith and Neil Mullin.
O’Reilly is seeking to push the matter into arbitration. From his lawyer’s motion to dismiss the suit: “Although the [New York] Times reported that Mackris and Diamond received millions of dollars for their agreements, those Plaintiffs now shamelessly disclaim their express agreements to arbitrate, as well as their express promises of confidentiality, while keeping the money they received in consideration.”
The lawsuit also names Fox News as a defendant. In a motion to dismiss the complaint, Fox News argued that the plaintiffs are seeking to hold the network “liable for statements made by O’Reilly in his personal capacity, including statements made after he was terminated by Fox News.”
The unredacted agreements themselves leave no doubt about the power imbalance at work in these situations. “With this decision,” said Smith in a press release, “the public can finally see how ridiculously over-reaching and unethical settlement agreements can deny women their most basic rights, including forcing them to lie under oath.”
Termination — Bernstein’s July 2002 agreement begins with an unfortunate reality of the workplace:
As this blog has written, women who reach settlements over sexual harassment and the like tend to find themselves without a job. Bernstein alleged mistreatment by O’Reilly, not sexual harassment. According to the settlement document, she received 18 months of pay at a weekly rate of $1,364.95, or about $106,000.
The Mackris agreement charaterizes her departure from Fox News as a “voluntary resignation.”
Suppression — A key component of the Mackris agreement seeks to ensure that O’Reilly’s alleged misdeeds would be difficult to substantiate:
Said Smith of such legal restraints: “O’Reilly repeatedly spoke publicly about ‘shocking evidence’ and ‘proof’ he had that our clients are liars — and Fox News Chairman Rupert Murdoch called their claims ‘nonsense’ — all the while knowing that they had forced the plaintiffs to turn over or destroy video and audiotape evidence of his harassment!”
But that’s not all. There’s another sentence from the settlement that blows any ethical mind. Here it is:
In our computer, the Erik Wemple Blog has saved that snip as oreillyomg.png. It’s right there in a Fox News legal document: Lie!
Investigation — The agreement appears to suggest that Fox News dispatched a good friend to check on Mackris:
Says Smith: “The Mackris agreement acknowledges that Fox News investigator Bo Dietl (and others) surveilled, investigated and amassed information about Ms. Mackris, including tapes, photographs, emails, letters, calendars and diaries.”
Education — The Morelli Law Firm, which represented Mackris in her 2004 case, agreed to a curious provision in the agreement:
Reputation — Consider the hubris below. In a settlement reached to suppress O’Reilly’s alleged misdeeds, there’s this: