Bill O’Reilly has defeated a defamation lawsuit brought by one of the women who has accused him of sexual misconduct.
Rachel Witlieb Bernstein in December 2017 sued O’Reilly, Fox News and 21st Century Fox, claiming public statements made in connection with reports of settled sexual harassment claims painted her as an extortionate, politically motivated liar. She also alleged that the statements violated the non-disparagement and confidentiality provisions of her 2002 settlement.
The court dismissed Bernstein’s complaint in March, but gave her an opportunity to amend her claims against O’Reilly. This time, U.S. District Judge Deborah Batts is tossing the matter for good.
Batts recaps a series of 12 statements that O’Reilly made in 2017 to various news outlets, including Fox News, The Hollywood Reporter and The New York Times, that Bernstein claims are defamatory. She then notes that to meet the standard of defamation under New York law, a plaintiff must allege defamation per se or a special harm, neither of which she finds Bernstein did successfully.
“To plead special harm, a plaintiff must ‘fully and accurately’ state ‘the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation,'” writes the judge. “Emotional distress from a plaintiff’s knowledge that he or she was defamed is not special harm, even if it resulted in out-of-pocket medical costs.”
With regard to defamation per se, Batts explains Bernstein would have needed to allege that the statements at issue charged her with a serious crime, injured her in her profession, charged her with a “loathsome disease” or imputed “unchastity to a woman.” Specifically, she notes the difference between using the word “extortionate” and accusing someone of committing the crime of extortion.
“Under New York law, using colloquial phrases and loose statements such as ‘shakedown,’ ‘crawling up your back,’ ‘fraudulent’ or calling a party ‘extortionate,’ ‘no good,’ or ‘a criminal’ does not constitute defamation per se because these phrases do not convey with reasonable specificity that the party committed a crime,” writes Batts. “Similarly, O’Reilly’s statements here — including ‘hit job”’ and ‘politically and financially motivated’ liar — are equivalently loose and hyperbolic in nature.”
Batts also dismissed Bernstein’s breach of contract claim, noting that she didn’t adequately allege facts showing damage caused by the alleged breach last time around and didn’t “even attempt to remedy this deficiency” in this version of her complaint and finds it would be “futile” to let her amend it again.
Andrew Bourne, partner at litigation boutique Hoguet Newman Regal & Kenney, LLP and counsel to O’Reilly, issued the following statement:
“Mr. O’Reilly has drawn the line. He will fight hard to protect his family and his reputation, and we’re pleased that Judge Batts once again saw the suit for what it is by dismissing it with prejudice.”
The full ruling is posted below.
Sept. 26, 5:19 p.m.: Updated with statement from Andrew Bourne.