Fox News Fights Claims of Defaming Bill O'Reilly's Accusers

As the cable channel files old settlements over O'Reilly's conduct into the public record, the parties go to war over the First Amendment.
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Bill O'Reilly

With so-called "hush" agreements in the news thanks to President Donald Trump's dispute with adult film actress Stormy Daniels, Fox News on Tuesday told a judge that it is "vitally important" that a lawsuit brought by three women be dismissed.

The women — Rachel Witlieb Bernstein, Andrea Mackris and Rebecca Diamond — accused former Fox News star Bill O'Reilly of sexual harassment. They each settled, and all stipulated to confidentiality. Then The New York Times revealed that O'Reilly paid $13 million to five women to settle harassment claims. He was let go from the network, but the women aren't happy. In a complaint filed in December, they accuse O'Reilly of defaming them plus breaching the confidentiality and nondisparagement clauses of their settlements. Fox News is also facing the allegation of defaming the three plaintiffs via public statements and in an interview given by 21st Century Fox chairman Rupert Murdoch.

Fox News has now filed those old settlements into the public record. Two of those agreements have been heavily redacted after O'Reilly's attorneys insisted upon it. (The other can be seen below.) The confidentiality surrounding the confidentiality has led to an attack from plaintiff's attorney Neil Mullin, who wrote to the judge Tuesday that the First Amendment demanded the presumption of openness and that Fox News and O'Reilly "have not even attempted to meet their burden of showing extraordinary circumstances requiring sealing."

As a judge is presented with this issue, Fox News has also submitted a bid to dismiss the claims. (Here's the full motion.)

According to Fox News, Bernstein settled her initial claim against O'Reilly 15 years ago, Mackris 13 and Diamond six.

"Plaintiffs' claims are wholly without merit," writes Fox News attorney Kevin Baine. "The statements at issue were not made by Fox News, did not refer to plaintiffs, and are neither defamatory nor disparaging. Moreover, the statements at issue were true and there is no indication on the face of the statements that the speaker 'intended or endorsed' any allegedly defamatory implication, as the law requires."

One of the statements was issued by 21st Century Fox after the Times report about the O'Reilly settlements. Here it is:

"21st Century Fox takes matters of workplace behavior very seriously. Notwithstanding the fact that no current or former Fox News employee ever took advantage of the 21st Century Fox hotline to raise a concern about Bill O'Reilly, even anonymously, we have looked into these matters over the last few months and discussed them with Mr. O'Reilly. While he denies the merits of these claims, Mr. O'Reilly has resolved those he regarded as his personal responsibility. Mr. O'Reilly is fully committed to supporting our efforts to improve the environment for all our employees at Fox News."

In the lawsuit, the plaintiffs say this was "deliberately misleading," adding, "There was no hotline at Fox during plaintiff's employment."

The other big statement at issue comes from what Murdoch said during a December interview on Sky News regarding the raft of allegations about sexual harassment at Fox News.

"That's all nonsense," he told the reporter. "There was a problem with our chief executive [Roger Ailes] sort of over the years, but isolated incidents. As soon as we investigated, he was out of the place in hours — well, three or four days, and there's been nothing else since then. ... I mean there are really bad cases that people should be moving aside and there are other things which probably amount to a bit of flirting. You know?"

Fox News urges the judge to dispense with the lawsuit.

"The statements by 21CF and Rupert Murdoch concern a matter of legitimate public interest: the extent to which a public company parent knew about matters occurring at a subsidiary, and the impact that the recent revelations about Fox News were having on the company's business," states the dismissal motion. "These statements are fully protected by the First Amendment, and for that reason it is vitally important that the claims against Fox News be dismissed at the outset."

Additionally, Fox News argues that the claims from Mackris and Diamond can't proceed because the two agreed in settlements to arbitrate any issues. O'Reilly is making the same argument.

As for an alleged breach of confidentiality, O'Reilly is hardly arguing, as Stormy Daniels is, that the hush agreements are unconscionable and void. In fact, he is threatening his accusers.

"There is a certain irony that, by filing and publicizing this lawsuit, Plaintiffs have brought more attention upon themselves than O'Reilly's comments, which were never directed at or referred to Plaintiffs, ever did," states his court papers. "More than this, Mackris and Diamond have violated their express confidentiality agreements — Mackris by inviting a New York Times reporter and photographer into her home, and Diamond through social media — and O'Reilly will, in the proper, arbitral forum, assert claims against Mackris and Diamond for breach of these agreements."

O'Reilly, represented by Fredric Newman, also makes his own argument that the defamation claims are doomed.

"O'Reilly never identified or mentioned any of the Plaintiffs and none of the alleged defamatory statements can be reasonably construed to concern them," continues a dismissal brief. "O'Reilly's statements consist of his opinions concerning the unbalanced journalism that went into stories published about him and his critique of the advocacy groups that organized a sponsor boycott against him and his top-rated show. Such statements of opinion are protected and cannot serve as a basis for a defamation claim. Finally, none of the statements set forth in the Complaint would expose Plaintiffs to public shame or ridicule, and, as such, none of the statements is susceptible to a defamatory meaning."

Seizing on one Mackris statement of "no wrongdoing whatsoever," O'Reilly also argues that his denials of harassment are also true.