Following a couple of weeks of anguishing, leaking and launching trial balloons, Fox News pulled the plug last week on Bill O’Reilly.
After it was reported that the premier performer of the network’s gallery of conservative commentators had racked up $13 million in settlements paid by the cable news network to women claiming sexual harassment and advertisers started fleeing in droves, the two sons who compose the second generation of the network’s owner, Rupert Murdoch, decided to fire Fox’s featured ratings star.
While the decision-making scions have tried to cast the discharge in the garb of bringing Fox “into the 21st century,” they don’t deserve too much credit. They didn’t sack O’Reilly because of his misbehavior, which has been going on for a long time. Rather, it was only after the settlements became a matter of public knowledge, reported by the New York Times, and the network began experiencing the costly departures of disenchanted advertisers that Murdoch’s two sons stepped up to the plate.
O’Reilly’s misdeeds had not changed, or even escalated; it was only when they became public and Fox felt the withdrawal symptoms of advertisers that it took action.
But as they pushed him out the door, the Murdoch’s gave their mega-star a nice going-away package: a reported $25 million severance, nearly double the amount paid to all the harassment claimants.
The discharge denouement reminded me of my encounter with O’Reilly. Recalling a phrase of another cultural icon, Andy Warhol, I once had my 15 minutes of fame with O’Reilly.
It happened about 15 years ago, in late May 2002, as O’Reilly was in the ascent of his rise to the pinnacle of his commentating career. Another bigger-than-life character, Gov. Jesse Ventura, had just vetoed a bill passed in the waning days of the legislative session requiring public school students in Minnesota to recite the Pledge of Allegiance at least once a week in their classes. The governor, with quite a libertarian streak, deemed the measure a violation of the First Amendment rights of freedom of expression and religion.
The veto sparked support from many quarters and outrage from others around the nation. O’Reilly and Fox were right on the spot, planning to run a piece on the issue on his nightly broadcast. To do so, his producers cast around for some local commentary, and they found it in me, who was suggested to them by the local branch of the American Civil Liberties Union after one or two larger legal luminaries declined to be subjected to what they feared would be Fox’s one-sided meat grinder — unfair and imbalanced.
But not I, who agreed to an appearance for a 15-minute segment to be taped for the O’Reilly show. When I initially agreed, I thought it meant an expense-paid trip later in the week to New York City, where the show is done. Instead, I was instructed to proceed promptly to a downtown Minneapolis broadcast studio, a short drive from my office; they didn’t even reimburse me for my parking.
Once there, I was placed in front of a one-way glass-walled booth staring into a red light emitting from a slightly-obscured camera. I felt like I was a subject in an experiment. I was told my role would be to defend Ventura’s veto, while O’Reilly would take the other side. OK, sounded like a fair fight to me.
Without any prior rehearsal, O’Reilly then spoke to me through the sound system in the room. I could not see him, or any television monitor, for that matter, just his voice as I stared straight ahead into the camera aperture, with a bleak picture of the Minneapolis skyline in the background.
I don’t recall much of the specifics of the dialogue, which probably exists somewhere out there in cyberspace. But the gist of the back-and-forth parrying consisted of O’Reilly, ever the man of the people, castigating the governor for going against the “will” of the majority, and I, relying on my legal experience, pointing out that similar measures have been held unconstitutional by the courts, dating back to decisions of the U.S. Supreme Court nearly 60 years earlier.
Because this was a general interest TV program, not a CLE, I didn’t have the inclination, or time, to get into the specific cases. Had the occasion arisen, though, I was ready to reference the three-part test for adjudicating religious freedom cases under Lemon v. Kurtzman, 403 U.S. 602 (1971): the purpose of the measure; its effects; and the oft-quoted “excessive entanglements” prong. More specifically, I was prepared to cite West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court decision nearly six decades earlier, at the height of World War II no less, that held that it was unconstitutional to require elementary public school students to recite the pledge, a rare reversal of the high court’s ruling three years earlier all upholding a similar requirement in Minersville School District v. Gobitis, 310 U.S. 586 (1940).
But while I was correct at the time, later developments may have undercut my position. Subsequent case law made the issue more problematic.
Two years after my encounter with O’Reilly, the Supreme Court refused to adjudicate a non-custodial parent’s challenge to a mandatory pledge requirement imposed on his daughter in Elk River Unified School District v. Newnow, 542 U.S. 1 (2004). But the persistent parent pursued the case for the rest of the decade, occasionally prevailing but ultimately having his challenge dismissed on the merits by the 9th Circuit, a liberal bastion that found no impermissible religious basis for the “under God” portion of the pledge and definitively declared; “the Pledge is Constitutional.”
Maybe O’Reilly was right.
O’Reilly then turned to his bigger weapon. Drawing on culture war rhetoric, he asserted that the mandatory pledge proposition was a prudent way to instill ethical and moral values among youths, including an affirmation of the role of the Supreme Being embedded in the “under God” phrase of the anthem. I responded by pointing out that a number of students, or their parents or guardians, may not share that belief, or have different views of the Deity and how best to give homage to him or her (or them), and they should not be compelled to express an affinity for what they may not believe in or do so a way they find distasteful or inappropriate. I also observed that students, or others, can be ethical and moral without, or despite, making compulsory laudatory public proclamations about a Deity.
That launched us into a verbal battle over prayer in the schools, Christmas pageantry, and the like before concluding with some practicalities whether the veto might be overridden by the Legislature — it wasn’t; what other alternatives might exist to achieve the legislative objectives without infringing First Amendment freedoms; and how the governor’s action might affect his political fortunes and chances for re-election that year, which turned out to be moot because he petulantly decided not to run, blaming the “jackals” of the media for his disinclination to continue in office.
O’Reilly ended the session by thanking me and then the red light on the camera went off and so was I. But, during the ensuing commercial break, I heard O’Reilly’s voice again, feeling somewhat like Moses confronting the burning bush.
The host was quite gracious, thanked me for my time, and praised me for being knowledgeable and doing a “good job” asserting my position, which he said was a “very hard” one to articulate. “We’ll use you, again, sometime,” he said, and then the room went dark and quiet.
He never did, and I never made it back to his show, or any other Fox format, for that matter. But I did not draw any negative inferences from the brief encounter. I, too, thought he was well-informed, or at least well-prepared by his staff, made some valid points, asked good questions, and, the interview was, surprise-surprise, fair and balanced.
I never was a fan of his, but I did continue to watch him from time-to-time, as did a large portion of the TV viewing audience. While his alleged antics are reprehensible and warranted his departure, which should have come much sooner, I will miss him.
I guess I’ll never get that chance to be invited back to his show, now. All I have is my 15 minutes of Fox!
This article was originally published in Minnesota Lawyer.