You may have heard that Bill O’Reilly is suing his ex-wife, Maureen McPhilmy, for upwards of $10 million over vague claims that she somehow defrauded him in their divorce agreement in order to fund an “existing extra-marital relationship.” What you probably haven’t heard is that a New York judge recently granted the 66-year-old Fox News host’s demand to place the entire case under seal—effectively preventing the public from evaluating the merits of a civil lawsuit filed by a public figure against a private citizen. This week, Gawker Media petitioned the court to vacate that ruling and open up the proceedings.
The origin of O’Reilly’s most recent litigation dates back to 2011, when he and McPhilmy, then known as Maureen O’Reilly, divorced after a year of separation. While the divorce itself was relatively uncontentious, the couple has battled for years over the custody of their two children, who are 14 and 17 years old. In 2011, McPhilmy sought to end their joint custody agreement after she learned that O’Reilly had been employing the purportedly neutral therapist who, under the agreement, was supposed to negotiate custodial disputes, as his nanny. An appellate court later determined that O’Reilly had tasked therapist Lynne Kulakowski with “virtually all of his parental duties,” which compromised the entire custody deal.
The McPhilmy-O’Reilly dispute was sealed, but as it made its way through the Supreme Court of Nassau County, various details about O’Reilly’s campaign against his ex-wife emerged. He apparently succeeded, for example, to having McPhilmy formally reprimanded by their local Catholic parish, on the grounds that her second marriage, to Nassau County Police Department detective Jeffrey Gross, is unholy. When he first learned that McPhilmy and Gross were dating, O’Reilly worked his connections within the Nassau County Police Department to launch a frivolous internal affairs inquiry into the detective’s private life.
Perhaps the most damning information to come out of the case was O’Reilly’s daughter’s claim, relayed in testimony by a court-appointed forensic examiner who had interviewed her, that she had witnessed O’Reilly dragging McPhilmy down the stairs by the neck. According to the same examiner, the daughter said that her father—who settled a sexual harassment claim by former O’Reilly Factor producer Andrea Mackris in 2004, while he was still married to McPhilmy—called her mother an “adulterer” and told her that associating with Gross would “ruin her life.”
These revelations are particularly significant given the fact that Fox News pays O’Reilly a handsome salary to heap judgment on the families of others, especially those of black Americans. “The reason there is so much violence and chaos in the black precincts is the disintegration of the African-American family,” he claimed in August of 2014. A few months later, he blamed “the astronomical crime rate among young black men” not on systemic issues such as racial discrimination or America’s history of white supremacy but on “kids with no fathers.”
Just this week, O’Reilly criticized Michelle Obama for her speech at the Democratic National Convention, where she spoke of watching her two daughters grow up in the White House, which was erected in the 18th century with the labor of enslaved Africans. “Slaves that worked there were well-fed and had decent lodgings provided by the government,” he said on The O’Reilly Factor, as if the perceived lack of food and shelter was the main disadvantage of chattel slavery, which did more to destroy black families than any other American institution.
Through his lawyer, O’Reilly initially denied the domestic violence report, but went silent after Gawker published partial court transcripts that corroborated our story. Soon thereafter, he petitioned an appellate court in Brooklyn to issue a gag order, which would have prevented anyone involved in a case from speaking to the press. The court rejected O’Reilly’s petition on procedural grounds, leaving the final decision to the justice overseeing the original case in Nassau County. It’s unclear if the lower court approved O’Reilly’s request, though; under New York State law, nearly all family court proceedings at the local level are kept confidential.
Proceedings in civil court, on the other hand, are generally an open book. Federal and state judiciaries have held for decades that the First Amendment covers the right of the public and the press to access court records. But at O’Reilly’s request, his latest offensive against McPhilmy—a civil case alleging fraud, not a family dispute—is being conducted in secret.
As Gawker reported in May of this year, O’Reilly applied for an “anonymous caption order and sealing of file” on April 1, but was denied on the same day. O’Reilly later filed a separate action under a new justice, this time attaching a copy of a his and McPhilmy’s separation agreement, in which he argued that he and his ex-wife “are contractually obligated not to disclose information related to this dispute as they agreed it is in the best interests of their children, which overcomes the right of public access to records.” He also claimed that his occupation as a Fox News host ensured that “matters concerning his personaI life, marriage, and children, attract media attention [which have] caused [his and McPhilmy’s] minor children extreme emotional distress.”
The justice assigned to the case, the Hon. Roy S. Mahon, apparently found this line of argument persuasive, and on June 1, granted O’Reilly’s motion to seal the proceedings. His decision prompted the Supreme Court of Nassau County to retroactively delete every single document filed in the case—including 13 documents, totaling 34 pages, that had been previously available to the public—and currently protects any further filings from public inspection.
Judges routinely permit both plaintiffs and defendants to seal individual filings, often for reasons of protecting trade secrets or either party’s personal privacy. It is highly unusual, however, for a judge to order the sealing of civil case’s entire docket. Because Gawker’s own filings fall under Mahon’s sealing order, we cannot publish any of them.
Astonishingly, Mahon did not offer any legal reasoning, at least in any publicly available filing, for approving O’Reilly’s far-reaching sealing motion. In other words, he seems to have endorsed the logic of O’Reilly’s original petition. At best, that means he believes O’Reilly and McPhilmy’s private separation agreement overrides the public’s access to court records. At worst, that means he believes O’Reilly is entitled to sue a private citizen in total secrecy, simply because the lawsuit would invite attention to himself, and thus his children.
Fame does not grant a litigant the license to a closed courtroom, nor to bring a $10 million lawsuit against another person, famous or otherwise, within it. Accordingly, Gawker Media officially filed a motion to intervene and vacate Mahon’s order on July 26. O’Reilly’s attorneys have until August 17 to respond.