“There were huge consequences for anybody who talked to us”

Months prior to the #MeToo movement and the cascade of men in leadership positions facing accusations of sexual assault and harassment, New York Times reporters Emily Steel and Michael S. Schmidt broke the story of the many allegations against Bill O’Reilly, Fox News’s top-rated host. In April 2017, the Times published Steel and Schmidt’s investigation into the many harassment settlements—totaling about $13 million—reached between Fox, O’Reilly, and five women who either worked for or appeared on “The O’Reilly Factor” over the years. The women received payments in exchange for agreeing not to pursue legal action or speak about their accusations against the conservative commentator. About three weeks after the story was published and amidst an exodus of advertisers from O’Reilly’s show, Fox announced on April 19 that O’Reilly would no longer appear on the network. At that point, top Times editors assigned reporters to dig into the issue of sexual harassment in multiple industries. Jodi Kantor and Megan Tuohey started looking into Harvey Weinstein and other reporters started looking into the issue in Silicon Valley and at Ford plants in Chicago.

In October, Steel and Schmidt reported that, in January 2017, O’Reilly had reached a settlement with a former Fox analyst worth $32 million and—at a time the Fox owners had said they were committed to creating a workplace culture based on trust and respect—the Murdochs renewed his contract with a four-year extension, paying him $25 million a year.

Steel, a business reporter covering the media industry, and Schmidt, who is based in D.C. and primarily covers national security, visited the Nieman Foundation in March and discussed how they uncovered the O’Reilly settlements, convinced people with knowledge of nondisclosure agreements to talk to them, and the need for continued reporting on sexual harassment and changing societal norms. Edited excerpts:

On how the Ailes reporting got started

Emily Steel: How we got started on this story: It was the summer of 2016 and former Fox News anchor Gretchen Carlson had filed a lawsuit against Roger Ailes, who was the founding chairman of Fox News. That really burst into public view this sexual harassment scandal at Fox News. He was quickly ousted but we continued reporting. We found that this wasn’t just an issue with Roger Ailes at the top of the network. There was something that was much more pervasive throughout that network.

In August, we had a meeting with New York Times editor Dean Baquet. He had remembered a case from 2004 where a young producer, Andrea Mackris, on Bill O’Reilly’s show had sued him for sexual harassment. Baquet was editor of the LA Times at the time that story broke; he remembered that it was a salacious story, that maybe there had been tapes, that there was a multimillion-dollar payout.

Mike and I were assigned to try to go back to 2004 and recreate that lawsuit with the knowledge and the perspective of what we now knew.

Michael S. Schmidt: This was truly an example of Dean having this idea and saying, “Go.” It was the Times at its best. They gave us an enormous amount of time, an enormous amount of resources.

You’d look in the lawsuit and there’s a section that appears to reference other women and other examples. It looks like a similar pattern of behavior, but at the time that had not gotten a lot of attention. Over the span of more than 10 years it had been forgotten, in a sense.

That led us to this idea that there may be more here. You often wonder in these cases where you see such egregious behavior. O’Reilly denied that it happened, but he settled. Do you think this is the only time that this happened? Then was probably the biggest problem that we had, which was, “OK, we think there’s something bigger here. We don’t know what it is. How do you go about reporting that?” That took us at least two or three months to figure out.

Steel: After we got a copy of the 2004 lawsuit, we figured out every single person who was named in that lawsuit. We figured out every single person who knew this woman, Andrea Mackris. We had looked at every single person who had worked on O’Reilly’s show, who had left the show, who had worked at Fox News. We made this spreadsheet and called, and called, and called, and called, and called. When we thought the story was bigger and that maybe there had been more women, we needed to rethink, “Who do we call now? What’s that next circle who are the list of sources?”

On turning to “Spotlight” for reporting help

Steel: There’s a point where we were trying to figure out what is the pattern of a powerful man who may treat women in this way or who women have alleged that they’ve treated this way?

What is the pattern of an institution protecting them? We looked for resources on how to report a story like this. Mike said, “Oh, let’s look at the Spotlight stories [on sexual abuse in Boston’s Catholic Church].” We read through all of those. We watched the movie, too.

This is silly, but there are lines in the movie that I would use with my sources because it was one of those things I was trying to figure out—how do you get people to talk about these really sensitive matters that they’re not supposed to be talking about? It was really helpful to see how these reporters had done that.

[Rachel McAdams, who plays Boston Globe reporter Sacha Pfeiffer in the movie] used this one line where she was meeting with a man who was a victim of predatory behavior by a priest, and he basically says, “Bad stuff happened to me. There were bad things that happened.” She says, “I think that language is going to be so important here… people need to know what happened.” She said it in this very subdued earnest way. I use that line with people, and it works.

On the first woman to go on the record

Steel: What we started to find is that there was this pattern where what the women said is that O’Reilly would form this mentorship‑type relationship, offer to help them with their careers, put them on his show, and then start making these unwanted advances toward them. They feared that if they rejected those advances, their careers would be ruined. We thought, why don’t we look to see who were the guests on O’Reilly’s show? Because either they had worked with the women, they had known the women, or they might have been the women. We went to IMDB. We printed out a list of everyone who had been on the show. It was pages and pages thick. We were just calling people and saying, “Listen, we’re doing this reporting, and we just wanted to know what your experience was.” In the midst of this, there’s this one woman that we contact named Wendy Walsh. She used to appear as a guest on O’Reilly’s show. She calls herself America’s relationship expert. She used to be a journalist, then she went on to study psychology. I called her. She thought that I was calling to get her advice about why people act this way and what is the psychology behind sexual harassment. I said, “No, no, no. I’m more curious about what your experiences were on O’Reilly’s show.” She said, “Oh, well, there was this one time, but I don’t want to talk on the record.” I was like, “Well, what was it? Tell me more.” She said that she had been on O’Reilly’s show for a while. He had come out to LA and asked her to go to dinner. During the dinner, he promised her a job at Fox, said that he was friends with Roger Ailes. After the dinner, he said, “Come up to my hotel suite.” She said no. They went to the bar. He said her purse was ugly. They had this weird interaction. Then, later on, she doesn’t get a contributor position at Fox. She’s cut from the network in a series of months. She said, “This happened, but I really don’t want to talk about it. I don’t need all this drama in my life.” Then I said, “OK, I get it. But thanks for calling. Is it OK if I call you later on?” Then I would call her back. One time I say, “I’m going to be in LA. Can you meet with me?” She says, “Oh, I’m really, really busy. I’m shooting a commercial. I teach a class. I do this Pilates class on Tuesday mornings.” I was like, “Oh, I love Pilates! I’ll do this class with you.” Then I fly out to LA. We do the Pilates class. It’s really hard; I was shaking. Then the two of us get breakfast afterward. We tell her a little bit about our reporting and what we’d found. At that point, we had thought that there were a number of women who had these confidentiality agreements, that they had been silenced, that they couldn’t talk. But I said, “You know, you can. You had this experience. You have a voice.” She said that she had thought about this a lot. She decided to come forward and that she would go on the record with her story. She said that she did it for her daughters because she wanted to make the world a better place for them, and also to teach men how they should act and treat women in the workplace. She went on the record. She was the only woman in our investigation about the $13 million in settlements who had gone on the record. In Time’s Person of the Year issue, she is one of the silence breakers. It was really bold for her to do that. That was before the Me Too movement. There was nobody else who was out there talking about this in the way that she did.

On interviewing women reluctant to talk

Schmidt:  When you work in teams, you always want to be involved. But one thing I had to realize was that there’s certain things, like many of the interviews with women, that Emily was going to do a lot better by herself, that I should just get out of the way.

Steel: Before every phone call that we would make, we would strategize. Who was this person? How can we get them to talk? I was making the call or Mike was making the call or we were going together. But we very much strategized a lot of the psychology of trying to get people to talk before we even picked up the phone and called them.

On using nondisclosure agreements (NDAs) to their advantage

Schmidt: NDAs have shown themselves not to be the best things for you to sign because they are breakable. You can wear down an NDA and get at the heart of it. It’s hard, but what we figured is if we just worked where we thought they were and the people around them that you could get past them. Then if you’re O’Reilly and you’ve spent all of this money—he spent $45 million to have all these NDAs to never become public— but all of that came out anyway. That was this interesting phenomenon—that they had created these legal structures which they thought would keep them secret, but ultimately they were the legal structures that enabled us to write about it.

Steel: It was like we could reverse engineer the story using those NDAs.

Schmidt: It’s not that women’s accusations without a settlement are less strong, but we have to make an argument to the reader about the facts that we have. It just happens that O’Reilly had an enormous amount of settlements. His settlements were at a much higher financial number than Weinstein’s. The Weinstein stuff was like $150,000, and we end up with O’Reilly at $45 million. When we wrote that first story, we write about five settlements, and to the reader, that is very convincing stuff.

Steel: It created this foundation upon which people like Wendy Walsh could stand and be listened to, and be heard. The other interesting thing about the settlements, too, is that the clauses in them—and we’ve seen some of these—say that, if these women break the settlements, the consequences are so severe. With one of them, it was like each breach was $150,000 or $250,000. With the $32 million settlement that we uncovered, it was paid out over a period of time. If the woman was found to be in breach of that confidentiality agreement, then she would forfeit any remaining payments. There were huge consequences for anybody who talked to us.

For so long, the NDAs did work, and there was this cone of silence.

Schmidt: On the NDA, it’s like going after any other piece of information. In Washington, we spend a lot of the day trying to figure out classified stuff or sensitive stuff, and it’s the same thing, where you’re just trying to work around the edges and get little pieces. Then go to other people with the pieces and build the pieces back and forth.

Steel: One of the other things that I learned from Mike, was the importance of just trying to get people to give you the documents. It also can be really hard to trace where those documents come from, so it can really protect your sources, too.

Schmidt: But the consequences of an NDA are only financial. They’re not like classified information, where the consequences are legal. Because there’s not a criminal penalty to it, they’re a little bit easier to penetrate.

On interviewing O’Reilly

Schmidt: It was only when we were doing the $32 million story, that O’Reilly’s people say, “O’Reilly will talk,” and they wanted it to just be me, without Emily, and they wanted it to be off the record. Dean said no. He said, “It’s both of you, and everything’s got to be on the record,” and O’Reilly agreed to do it. We had to bring this recorder for The Daily podcast so you have this massive thing sitting on the table.

Steel: It’s a very terse 45 minutes.

Schmidt: It was a brutal experience. It got really bad. It was very contentious, and O’Reilly’s approach was to be to be as angry at us as possible. We get done with the interview and we turned the recorder off, but our phones were still recording—because you record twice in case you miss it. We’re standing there, and he just goes after us. O’Reilly has a teenage son, and he brings this up and says, “You’d better think twice about what you’re doing,” but in a very coarse way.

Steel: He yelled at us, and you could feel the vibrations in your chest.

Schmidt: So we did The Daily, and it has all this great, clear audio from the interview, and then at the end, the most interesting thing is the audio off of our phones, because the whole thing was on the record.

On power and complicity in the workplace

Steel: One of the big takeaways that I’ve had is that it’s really easy to focus on the salacious nature of sexual harassment and the sex angle of it, but what we’ve learned through the reporting that I’ve done about Vice and all of these other stories is it’s really tied to power. That’s a important angle to think about and to pursue. The other thing is these weren’t just stories about bad actors doing bad things, but there was this entire system of complicity behind them that allowed this behavior to continue.

Schmidt: You see what companies do to protect a huge revenue producer. He counted for something like 20 percent of Fox News’ revenue, [hundreds of millions of dollars a year]. He’s the flagship guy, and the contortions a company will make to protect that were remarkable, even after everything had come out.

Steel: The other thing I’ve been thinking a lot about, is so many of the men who these accusations have come out against have been in the position of shaping the narrative and the dialogue about our politics, our society, our culture. That’s something that we really need to think about and explore. What effect might this have had on how our nation thinks about women or society?

On reporting on sexual harassment at Vice

Steel: What was interesting about Vice is that it was about a much younger generation. A lot of the women and the men working at Vice are in their 20s and in their 30s, maybe their early 40s. I thought that was striking, because a lot of the excuses or the apologies that men who had been accused earlier had been, “I’m a dinosaur. I grew up in the ’60s and ’70s. This is how I thought it was OK to treat women. I’m learning. I’m trying to get better.” I thought that it would be a lot easier to get people at Vice to talk, because, number one, at Fox News, there is this mentality among a lot of people that I talked to that The New York Times was the enemy, and The New York Times was out to take them down. At Vice, there wasn’t that same mentality, but it was a lot harder than I thought to get people to talk. I think that it’s because there’s a lot of fear about coming forward. These women were in their 20s. They thought that they could ruin their careers for the rest of their lives. There was also a lot of shame involved, too, where a lot of people thought, “What did I do to bring this behavior on to me?” and, “Maybe it was my fault.”

On transparency

Schmidt: Given the scrutiny and attention that the media is getting right now, I think that there is much more that we journalists need to do to explain to people what we do and how we do it. I think we struggle with it. I’m not sure that radical transparency is the answer, but we have to do a better job of explaining what we do and what our mission is. We deal with this in Washington—we’re not the resistance. People don’t understand that. They don’t understand what our role is. We do these Times Insider pieces that try and get at some of this but we have to be better at it.

Steel: I started at The Wall Street Journal 12 years ago. The mantra there was very much, “Let the stories speak for themselves. We don’t talk about our reporting.” I think it’s a real change in that sense right now.

On the impact of the #MeToo movement

Steel: One of the things that’s powerful is it’s gone from this individual issue to this collective reckoning that people are trying to understand. That’s one of the biggest shifts and the biggest changes. A couple weeks ago I had dinner with my cousin who’s a psychologist. He has a number of patients who’ve been victims of sexual assault or harassment. What he said is that a lot of women had experienced so much shame and felt like they had done something wrong to deserve this. Seeing these stories, they’ve started to shift their perspective and their focus: I’m not the one to blame, it wasn’t my fault, this happened to me, I’m a survivor, I’m not a victim.

Schmidt: We’re seeing the wrestling that the society is going through. Does every individual who has been accused of this, should they lose their job, is there a gray area in it? I don’t think we have the answers to that yet. It’ll be interesting, even with these men who have lost their jobs. Do they try and come back? How does society look at that? None of them have really tried to come back. Could they? Are there gray areas to this or is it all black and white? That’s a hard story to tell about how that’s playing out. Sometimes in the media, we jump on a story, we go crazy with it and then it kind of falls off, but the changes in society continue. To tell that story is hard, but important.

On a case to watch

Steel: There’s been a case where a number of the women who have settlements with O’Reilly after making allegations against him are now suing him for defamation or breach of contract. That’s going to be a really interesting case to explore, because these women kept quiet after all of these stories came out, at the same time that O’Reilly has gone on the air multiple times to try to defend himself. What the women really want is for those contracts to be null and void.

On future directions for reporting

Steel: The next step is looking at the structures and the institutions that allowed this behavior to continue. One big question that I have is what was going on with HR, where for the most part, we found that the HR offices were there to protect the executives and not necessarily the employees. At Vice Media, the woman who worked at HR had previously worked for the Weinsteins at Miramax. I had example after example of women coming to her and reporting these allegations. She told one woman, “You know, you’re a really beautiful woman. This is going to happen to you during your career. You need to get used to it.”

In addition examining the role of HR, we also need to look at the legal structure, this pattern of settlements, and how they may have been used to silence people who did have allegations, and allowed people who were committing this bad behavior to continue. A lot of women didn’t talk about this, because number one, they didn’t think that they would be believed, and they thought that if they did talk about it that their careers would be ruined. How can we change our culture to make it a safe place that women can share these stories, and be listened to? These aren’t just issues with women, but also with men in creating a culture of respect across the board.