Sean “Diddy” Combs Arrest & Harvey Weinstein Retrial Put NDAs Back In Legal Spotlight – Guest Column

Editor’s note: Almost a decade after helping to bring down Roger Ailes, former Fox News hosts Gretchen Carlson and Julie Roginsky remain silenced to varying degrees by non-disclosure agreements over what went down at the Rupert Murdoch-owned outlet. As the likes of Harvey Weinstein and Sean “Diddy” Combs face new criminal sex charges in the courts, the Lift Our Voices co-founders advocate for new #MeToo Movement momentum and stopping predators from keeping the survivors of their crimes out of the public eye.

With the recent indictment of Sean “Diddy” Combs, yet another high-profile man has been credibly accused of horrific sexual assault and misconduct, paving the way for another major industry to have its #MeToo moment. 

We have been here before.

In July 2016, one of us, Gretchen, was the first to file a sexual harassment complaint against then-Fox News CEO and chairman Roger Ailes, kicking off a reckoning about how women had been treated by one of the most powerful men in media.

In April 2017, one of us, Julie, filed another lawsuit against Fox News and Ailes, also for sexual harassment and retaliation. That same day, the New York Times broke a devastating story about how many women had allegedly been sexually harassed by Fox’s biggest star, Bill O’Reilly, and how they had been silenced by forced arbitration and non-disclosure agreements, allowing the host to continue working while these women were pushed out the door. O’Reilly was out the door at Fox less than three weeks later.

Six months later, in October, news broke of Harvey Weinstein’s decades-long abuse of women who had the misfortune of crossing paths with him.

Other high-profile stories followed: of Matt Lauer, Les Moonves and several more powerful and famous men who were swiftly pushed out the door after allegations of toxic behavior surfaced. It appeared as though Hollywood and the media were finally having their day of reckoning around the pervasive mistreatment of women in those industries. 

And yet.

Some of the men whose downfalls were celebrated during the height of the #MeToo movement have been welcomed back with open arms.

Take O’Reilly, whose behavior at Fox forced the network to pay tens of millions of dollars to settle with women who alleged that he engaged in pervasive sexual misconduct. One of those women, a former producer named Andrea Mackris, left Fox News with a settlement and an NDA in 2004. Nearly 20 years later, in the midst of the #MeToo movement, she gave a harrowing interview to the Daily Beast, detailing her alleged abuse; the settlement negotiations that forced her into signing a non-disclosure agreement; and even her mistreatment at the hands of male journalists, who went after her for daring to come forward. 

Earlier this year, Mackris was forced to pay O’Reilly nearly $100,000 in fees for arbitration proceedings he instigated to enforce her 2004 NDA. She was silenced, once again, as she has been for 20 years, save for one brief moment when she apparently assumed it was finally safe to share her own story. 

Most, if not all, of the women whom O’Reilly allegedly harassed have never worked in television news again.

Meanwhile, O’Reilly has become a regular fixture again on TV — he even appeared back on Fox to plug one of his books just six months after his departure. Since then, O’Reilly has routinely made the rounds at every single cable news network except MSNBC. Aside from a recent interview by PBS’ Margaret Hoover – who, in a feat of journalistic excellence, repeatedly pressed O’Reilly on his treatment of women – not one anchor on CNN, NewsNation or elsewhere has asked him directly about the tens of millions of dollars in payouts to his alleged victims, or why he should be allowed a comeback.  

O’Reilly’s recent resurrection in the media is just one of countless comebacks that many male celebrities have enjoyed since being canceled at the height of the #MeToo movement.

As we approach what many consider to be the seven-year anniversary of the #MeToo movement, it is clear that we as a society still have work to do to ensure survivors are protected and empowered to speak out against toxic behavior and pursue justice, and that sexual predators receive way more than just a public slap on the wrist. 

Through our nonprofit, Lift Our Voices, we have worked tirelessly to force a permanent reckoning for those who engage in workplace toxicity. Thanks to our two bipartisan laws, Ending Forced Arbitration for Sexual Assault and Sexual Harassment Act and our Speak Out Act, survivors of sexual misconduct are no longer automatically forced into the secret chamber of arbitration or into silence. But as we often say, changing the law – as difficult as it is in these hyper-partisan times – is still easier than changing culture. 

With each passing week, the allegations against Combs continue to grow more disturbing, including a recent report here at Deadline that his legal team is attempting to bully his alleged sexual assault victims by forcing the public disclosure of their names. While these claims, if they are proven at trial, are as horrific and damning as anything Harvey Weinstein has been convicted of doing, we must stay vigilant in ensuring that the red carpet isn’t rolled back out for abusers when the proverbial dust has settled years from now. 

To be clear, one of the reasons Combs was allegedly able to prey on so many people is because of his pervasive use of NDAs, which made survivors fear that they would be sued into oblivion by a rich and powerful man if they were to speak up.

This is what silencing mechanisms do: they seek to intimate and to isolate. One lawyer noted that the NDAs Combs routinely handed out may have been “the broadest non-disclosure agreement[s]” he had ever seen. But the Combs NDAs were not particularly unusual in their breadth. Politicians on both sides of the aisle – from three-time Republican presidential nominee Donald Trump to New Jersey Democratic Gov. Phil Murphy – have used similarly expansive NDAs to cover up toxic behavior. Organizations and individuals who are not nearly as well known have also used them to prevent the exposure of inappropriate and illegal behavior.

Combs is not the only musician to have abused less powerful women, just like Weinstein is not the only producer to have preyed on women in Hollywood and Ailes is not the only executive to have harassed women in media. If we are serious about holding bad actors accountable, we need to stop making examples out of some high-profile abusers while allowing so many others to rehabilitate themselves on national television right in front of our eyes.