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A New York federal judge has tossed a lawsuit brought by Rachel Witlieb Bernstein against Bill O’Reilly, Fox News and 21st Century Fox.
Bernstein, a former Fox News producer, was one of a half-dozen women who settled sexual misconduct allegations against Bill O’Reilly. Upon a New York Times exposé — “Bill O’Reilly Thrives at Fox News, Even as Harassment Settlements Add Up” — O’Reilly spoke up in his own defense as 21st Century Fox added a public statement addressing the report of settled claims.
In her lawsuit, Bernstein alleged that these statements defamed her by portraying her as an “extortionate, politically motivated liar.” She also claimed that the statements including O’Reilly’s comment that he was subject to a “smear campaign” breached the non-disparagement and confidentiality provisions of her 2002 settlement agreement.
On Tuesday, U.S. District Court Judge Deborah Batts addressed the defendants’ motion to dismiss. The judge examined various statements at issue, including Rupert Murdoch’s discussion in an interview that harassment claims at Fox were “nonsense.”
“Plaintiff’s allegations of special damages and defamation per se are wholly insufficient,” writes the judge. “Plaintiff alleges that she has suffered damages to her reputation, severe emotional distress, physical sickness, special damages, and loss of income as a ‘direct and proximate result’ of O’Reilly’s allegedly defamatory statements. However, she neither explains how her losses flowed from the alleged defamation nor alleges any facts establishing what, if any, emotional and physical harms and reputational damage she specifically suffered.”
The defamation claims against Fox fare no better.
The judge rules that Fox’s public statement hardly portrays her as a “liar” and that the company didn’t deny the merits of her allegations against O’Reilly. It’s further held that O’Reilly’s public statements can’t be attributed to Fox News as the company parted ways with its former star anchor upon news reports about settlements. As for Murdoch’s comment, the judge notes he was addressing the Roger Ailes situation, not O’Reilly’s.
Batts dismisses the contract claims on similar grounds, writing that Bernstein has not alleged facts showing damage and that O’Reilly wasn’t a party to the contract. Also, because 21st Century Fox only addressed allegations against O’Reilly generally, the judge adds that Fox couldn’t have “defamed” or “disparaged” her within the meaning of the non-disparagement and confidentiality clauses.
Bernstein can file an amended complaint, but the judge will only allow her to re-plead allegations against O’Reilly, not Fox.
Other women including Andrea Mackris, Rebecca Diamond and Laurie Dhue have brought similar lawsuits. Those women have been forced to arbitrate defamation claims.
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