TheAgitator.com
More on O’Reilly
Friday, October 15th, 2004This Jacob Sullum post on the O’Reilly sex harassment suit made me ponder a bit.
O’Reilly is suing for extortion. His accuser is claiming she asked to settle before the suit went to trial.
What’s the difference? In practical terms, I can’t see one.
Let’s say she has tapes of these conversations. And let’s say her attorney approaches O’Reilly and says, “We’re going public with these unless you pay us $60 million.”
That’s extortion. And it’s illegal.
But let’s say her attorney approaches O’Reilly and says, “We have these tapes. And we’re going to file a sexual harassment suit using these tapes as evidence. If you’d like to settle before the suit goes to trial, my client asks $60 million.”
That’s offering to settle before trial, and it happens all the time.
But for O’Reilly’s purposes, there’s really no difference between the two. What he fears in either case is that the tapes and their contents be made public. And in either case, he has to pay $60 million to make sure that doesn’t happen.
Seems odd to me that the way her lawyer words the offer makes the difference between what society deems acceptable and inacceptable, even though the consequences to both plaintiff and defendant are exactly the same.
Two things spring to mind:
1) Settling out of court is only tantamount to extortion because contemporary trials are so public. The fact that O’Reilly would be dragged through the mud by the media regardless of his eventual guilt or innocence is not a decision of the plaintiff, and so the fact that out of court settlement procedures could be used to extort doesn’t alter the value of their legitimate function (though there may be other reasons to question that value).
2) Should libertarians really see extortion as a crime anyway? The threat to publicise embarassing information doesn’t strike me as reason enough to get the law involved, but I’ve not thought this one through too carefully, so I’d be interested to hear alternative views.
I think the issue is that the proposed settlement was orders of magnitude beyond the bounds of what they could reasonably expect to win in a sexual harrassment suit.
I’m not comfortable with the correlation…
Now, I’m not a fan of rampant lawsuits, but if the claims being put forth by Mackris are valid, then this isn’t your standard sexual harassment accusation.
O’Reilly is a guy that has tremendous power, both over Mackris’ entire employment future as well as in political circles. If the accusations are accurate, O’Reilly threatened Mackris quite clearly and in no uncertain terms.
It a somewhat similar situation with Clinton and Lewinsky. I didn’t give a damn that Clinton lied to Congress. Lying has just become status quo in our political system. However, he held a position of power over Lewinsky and she really didn’t have the ability to say “no”… Even if she enjoyed the attention, it wasn’t appropriate.
In the case of Mackris, here’s a woman making nearly 100K per year, watching that source of income about to potentially vanish, and it appears from her statements that she did not solicit or desire the attention she was receiving. This situation was all about her keeping her job. Producers can be replaced, thousands of them come out of college with communications degrees every year. In most cases, the title of “Producer” for a radio show or even a large television news show isn’t that much of a promotion over “intern”…
Mackris has to realize that she may not have much of a chance of ever earning the money that she has gotten accustomed to if she were to be run out of the business by O’Reilly.
Therefore, she has to sue, and sue for enough money to make up for her lost career. Start high, and a settlement can be worked out somewhere between. Their starting bid to Fox appears to have been 60 million. Fox said “no” and retaliated with their own nuisance lawsuit against her and her attorney. Fox and O’Reilly forced this thing to be public.
Either way, if Mackris has an audiotape, this should be the end of O’Reilly. It has been common for people to accuse O’Reilly of being a bully, but it wasn’t considered that big of a deal when he was just bullying liberals who probably deserved it anyway.
Sixty million is a lot of money. However, it may have been a better solution for everyone involved than for what will likely become an extremely brutal battle in the court of public opinion…
After she was harassed she got a higher paying job at CNN, and left that job to come back to the harassment.
She never complained about the harassment to HR.
After returning to Fox to get harassed some more she told a friend back at CNN that things were wonderful, she was home and she was never leaving again.
She claims that O’Reilly said they were going to destroy Al Franken. There would be a knock on his door and his life would never be the same. Insinuated that Fox would call in favors “from the top” to punish the guy for taking on Fox.
If there is any extortion going on here, other than against O’Reilly, I would guess the Dems found something out about her and are making her pull this rediculous stunt on threat of revealing something she wants kept secret. Oh and then there is the money.
But I did read that one interpretation of the law is that O’Reilly is breaking the law by suing her, because she is protected from “retaliation” for making her bs claims. Handy rule there. Gives women even more power to lie, lie, lie to destroy any man, any time.
Legitimate sexual harassment is horrendous and has no place in todays workplaces. My wife was a victim of it many years ago. am not one of those who says it never happens. But the overreaction, the total empowerment women have to destroy any man’s career (accept maybe Kobe Bryant) with a false, unsubstantiated claim without fear of reprisal is unacceptable.
There is some good discussion of the extortion versus settle out of court distinction on the Volokh Conspiracy.
Highly recommended site.
http://volokh.com/
regards,
Shirley Knott
‘It a somewhat similar situation with “Clinton and Lewinsky. I didn’t give a damn that Clinton lied to Congress. Lying has just become status quo in our political system. However, he held a position of power over Lewinsky and she really didn’t have the ability to say “no”… Even if she enjoyed the attention, it wasn’t appropriate.’
—
Douglas Lorenz, and others who draw similar parallels,
Parallels between Clinton/Lewinsky and Mackris/O’Reilly are invalid. Lewinsky was the intitiator and had no desire to say no. Clinton, like the little boy he is, lapped up the poisoned milk and cookies without giving it a thought. With O’Reilly, he is alleged to be the initiator. Big difference!
The sad thing here is that we have a lot of long winded debate with no facts to go on. Just because Mackris says it’s true, does not make it true; just as O’Reilly’s suit does not make him innocent.
If you look at the two court filings several things look very suspicious. First, Mackris’ allegations are very detailed as to dates, places and content over a long period of time. Was she taking notes or recording? If so, for what purpose? If she objected, one instance would have been enough to make a complaint to management. I can’t believe that she believed Fox would want to let any of this become public, so she would have been protected, including her public reputation.
Forgive me if I fall back on my understanding of human nature here, but without more to go on I have to suspect that the facts are different from what she claims.
The second thing is that O’Reilly does not say it never happened. I think most men in such a position would be loudly proclaiming, “I’m innocent!” Others have noted this as well.
What I think we have here is something that went on for some time with both parties consenting, or at least with Mackris not objecting. But then it went south for some reason, resulting in Mackris changing her mind about the whole thing. Did O’Reilly or Fox not live up to some real or implied agreement? Did O’Reilly go beyond what she was willing to participate in?
If I’m wrong I’ll repent upon being shown the real facts.
On the other hand, I think this will be finally settled out of court in such a way that both sides can claim victory. And of course, with the details being sealed up inside a non disclosure agreement so none of us can ever know the truth.
Too bad our judicial system allows otherwise public court actions to end in secrecy. If you bring the action knowing it will be public, have the nerve to let the settlement be public.
An interesting way to look at “settling” vs “extortion.”
It reminded me of the laws in most places regarding prostitution.
You can give it away, but you can’t sell it.
‘Cause one’s illegal, and the other ain’t.
My arguments are based on the implication that Mackris has tapes of the conversations. I don’t see how she could have made such detailed reports of her conversations with O’Reilly without audio recordings.
There are a couple of ways that this could be perceived. Either Mackris was naive, and came back to Fox and O’Reilly expecting that the abusive behavior would stop, or she was scheming to get a large settlement for the abuse.
Either way, she did indicate to O’Reilly that she did not wish to have “that sort” of relationship with her boss. That should have discouraged O’Reilly from continuing the behavior.
Everyone who has watched O’Reilly even a couple of times knows that he can definitely be described as persistent and aggressive, as well as highly charismatic. That sort of personality can cause other people to believe that there is little they can do to combat the attentions. It is possible that she feared retaliation if she did go to Fox earlier to report the harassment. O’Reilly is Fox’s biggest draw, and you have to expect that Fox would do whatever is necessary to protect him. O’Reilly even indicated that Fox’s Roger Ailes would resort to violence to help O’Reilly against his foes.
Hell, look at what happened when she finally did go to Fox. She immediately got sued by Fox and their lawyers for “extortion”. Current news reports indicate that Fox is trying to get a court order to allow them to fire Mackris.
Can we agree that her belief that the Fox News leadership might tend to support O’Reilly over her might have been relevant?
I do not believe that her going to Fox to report the abuse would have resulted in anything positive, and I do believe that she knew that as well.
Of course, only time will tell. We may never know the full story, but I do believe that over the next few weeks and months we will certainly learn much more than we know now.
Douglas,
I see your point, yet the long time involved here still leaves me suspicious of her motives. If she believed as you say — and I can’t argue substantively against that — then she surely should have figured out that a suit would have also left Fox seeing no alternative but to protect O’Reilly. She’s got to have a lot on the ball to satisfy someone like Bill, so I wonder what’s really going on.
As I said, I’m just looking at the visible material, and could be wrong.
This one will be one to watch!
Cause you know, anyone that far to the right, like O’Reilly, anyone that far to the right is hiding a very deep and dark secret, you do know that, right?
Iâ??m an armchair fuckin psychologist BUT, anyone – you know that when Jesse Helms finally dies, heâ??s gonna commit suicide first of all in a washtub outside, underneath a pecan tree. Heâ??s gonna slash his wrists and write in blood, “Iâ??ve been a bad boy.” But you know theyâ??re going to find the skins of young children drying in his attic, swarms of horseflies going in and out of the eaves, and on CNN over and over, his wife going, “I always wondered about Jesseâ??s collection of little shoes.”
Anyone that far to the right is hiding a deep, dark secret.
Extortion shouldn’t be a crime. One has no duty to withhold information (unless it is agreed beforehand) and therefore to solicit funds in order to hold back violates no rights/obligations.
Doesnt mean it can’t be slimy.
As far as her returning to Fox goes (and assuming that her allegations are true) – all that had happened previously were some conversations that got a little raunchy and made her uncomfortable, and O’Reilly had promised to stop talking to her about sex if she came back. The really egregious stuff didn’t start until after she returned to Fox.
To address Radley’s original question, I would think that as a libertarian you should be reconciled with the idea that both just and unjust means can be “in effect,” at least in certain respects, the same. If someone is poor and homeless because he is unskilled and unmotivated, that is very different than being poor and homeless because minimum wage laws prevent him from getting work at his skill level and housing codes prevent him from buying a house he could afford, despite what some people would say that the dire circumstance of being poor is all that really matters. Likewise, being threatened with a lawsuit may “in effect’ be the same as being threatened by embarrassing revelations divorced from any legal proceeding, but that doesn’t mean it’s the same. I’ve seen it said elsewhere that being threatened with a frivilous lawsuit may constitute extortion but not being threatened by a substantive one, which makes sense since otherwise one would never have the chance to settle ahead of time, and as long as the lawsuit is substantive, that implies that there is something more to the threat than pure extortion, or at least potentially.
Bernard,
Your question #2 is a good one. The only inherent right necessarily being violated by an extortionist is the right to privacy, which hardly ranks up there with Life and Liberty. But maybe it’s enough. If the extortionist contrives a situation such that he fools the extortionee into putting himself into the vulnerable situation, perhaps then it might also constitute a breach of an implied contract, though that seems like it would be a stretch, and would only apply to this situation if Mackris goaded O’Reilly into saying what he did, or some such. Those are my thoughts at the moment, beyond that, I’m not sure.
Guys and gals,
O’Reilly is a control freak- If you agree with him, everything is cool. If not, he is an attack dog.
What comes around goes around- Constantly denigrating your enemy (like Bill’s idol-W.) results in your own downfall. As the Repubs hated Clinton from the get-go and almost got rid of him, now the pendulum has swung back the toher way. Tom DeLay is next and hopefully W.
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I was traveling last week and missed the brouhaha over sexual harassment allegations against TV host Bill O’Reilly, precipitated by his pre-emptive lawsuit charging that the demands of accuser Andrea Machris and attorney Benedict P. Morelli amounted to…
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