Opinion: Secret settlements harm public
Women who worked for him accused Bill O’Reilly of sexually harassing them. He denied all of it, said the stories were made up. Someone else, who will come into this later, might have called it “fake news.” Then recently, the New York Times reported that O’Reilly and Fox News had paid five women approximately $13 million to settle the cases he’d said they’d made up. Still, O’Reilly kept his job, and it all went pretty much by the board, water under the bridge.
But now, suddenly, O’Reilly has been fired. No reality show with strobe lighting and pulsating music, just gone, suddenly. Mark you, he’d been able to survive the five claims and the five settlements, though Fox had helped pay the money and knew the details. What had kept O’Reilly afloat was that no one else knew, not his viewers, not the advertisers, not us. No one else knew because the witnesses had been bought off.
All of it was buried in sealed documents held in secret files kept closed by private contracts enforced by public courts. And importantly, the Fox advertisers and the people who buy the stuff they sell, which pays for TV ads, did not know the facts. News isn’t news without witnesses, talking faces; and O’Reilly/Fox — ironically, a news organization — had paid good money to keep the faces covered and mouths shut.
O’Reilly/Fox hoped they’d kept the paying public from ever knowing, and with enough money, that can happen. This is about whether we should allow our public courts to enforce agreements keeping public news secret. The five women signed contracts that paid them to keep quiet, and O’Reilly/Fox had the power, using public judges, to enforce those contracts. When reporters came calling, in the name of the public, asking what happened, it was the contract that answered: “No comment.” And with the women contractually prevented from commenting, the only statement left standing, for us to know, was O’Reilly’s denial. That was good enough for Fox and its advertisers. O’Reilly kept his job, allowing him to continue shaping public opinion about important things, like who should be president. He told us what he thought about similar claims of other women against candidate Trump. All of it, he said, was “fake news.”
But now, and suddenly, he’s gone. So, what changed? It turns out there was a face and a voice that the legal system could not be used to silence. There was a sixth woman, one without a contract blocking out her face and canceling her voice. One unobstructed human face and voice was enough; advertisers dropped the show, and Fox, worried about revenue losses, pushed Humpty O’Reilly off the wall.
Think about the priest sex-abuse scandal, or Penn State football coach Jerry Sandusky. The abuse suffered by their victims was made worse by secrecy. How many could have been saved from their fate had these dirty secrets not been so carefully kept? In contrast, think about the man pulled off the United Airlines flight. It’s out there for the world to see, the backlash was immediate and reforms have begun.
These are matters of public interest. Sexual harassment by public figures like O’Reilly, and its relationship to his publicized support of a presidential candidate, is a matter of public interest. Is it the fault of the women who took money to keep O’Reilly’s and Fox’s secret? Of course not. The real problem is laws that enforce secrecy agreements. Remember whose law and courts they are; they’re ours. We the public paid to build the courthouses, and we pay the judges, court clerks and the janitors who sweep the courthouse floors. Each of these courts was created by state and federal constitutions. Each of these courts was intended to be a people’s court, a public court. The public has a right to know what happens in our public courthouses and between people, particularly public figures. Our legislators make the laws, and they can change them, making sure public matters are held open to the public, and it is up to us to tell them to do so.
The Times article, published 10 days before Humpty fell off the wall, revealing the $13 million in payments, put it thus:
“[W]hen they win a private settlement, the rest of us lose.”
That’s a hard one to argue against. In a free society, we get to make that choice. Let’s change the law. When the public has an interest, private contract should not be enforced, trumping our right to know.
— William Skepnek is a longtime resident of Lawrence. He is a lawyer and taught Honors Western Civilization at the University of Kansas from 1991 to 2010.