Bebeto Matthews/AP Photo
2018 Pulitzer Prize winners for public service journalism Megan Twohey, Jodi Kantor, and Ronan Farrow
The truth will out, we like to believe, and the revelations in recent years about predatory sexual behavior by men in positions of power may seem to confirm that comforting cliché.
But the obstacles encountered by the investigative journalists who unearthed those revelations highlight a more uncomfortable reality: When people with money and power want to keep the truth from getting out, they have an ample arsenal of weapons to ensure silence, and they usually get their way. The exceptional moments when journalists overcome that arsenal to root out exploitation and corruption are exhilarating. But those moments also ought to be occasions for examining the weapons themselves, and trying to limit their use.
Two new books about the Harvey Weinstein scandal raise these issues in a particularly graphic way. Ronan Farrow’s Catch and Kill, which reads like a thriller, takes us inside the reporting on Weinstein that Farrow undertook, first for NBC News and then, when NBC decided to kill the story, for The New Yorker. Jodi Kantor and Megan Twohey’s She Said recounts their parallel investigation of the Hollywood producer for The New York Times. While not as likely to be made into a movie as Farrow’s book, She Said provides more context about the #MeToo movement. The three journalists and the organizations that stood behind them deservedly won the 2018 Pulitzer Prize for public service for bringing Weinstein and others “to account for long-suppressed allegations of coercion, brutality and victim silencing, thus spurring a worldwide reckoning about sexual abuse of women.”
Weinstein himself had long been able to quash efforts by journalists to publish stories about his sexual abuses. Although more than 80 women have now come forward to make charges against him, nearly all of them were originally unwilling to talk on the record or, indeed, say anything at all. Those who had signed nondisclosure agreements (NDAs) with Weinstein as part of settlements feared being sued, and journalists who sought information from them could be accused of “tortious interference” (illegal meddling) with the women’s contractual obligations—a baseless charge that NBC lawyers nonetheless used to stop Farrow’s reporting. Weinstein, with all his connections in media and politics, was also able to intervene directly with news executives.
Faced with new investigations by Farrow and the New York Times reporters, Weinstein had one of his lawyers, longtime liberal hero David Boies, contract with an Israeli company called Black Cube, established by former Mossad agents, to take steps to block publication of their articles. Farrow describes being tailed by detectives and contacted by people offering help on his story who turned out to be agents of Black Cube or, in one case, part of Weinstein’s defense team. It is not clear that these efforts to spy on and intimidate the reporters were illegal, though they raise ethical questions. (The Times, which had retained Boies in connection with other cases, fired him when it learned of his role in the Black Cube contract.)
The NDA and its cousins, non-disparagement and mandatory-arbitration clauses, lie at the center not just of the sexual assault scandal but of many other news-suppression efforts today. The spread of NDAs is a comparatively recent development. Tech firms began using them in the 1970s for the legitimate purpose of protecting trade secrets, but by the 1980s were inserting them into routine employment contracts and then into other kinds of contracts and legal settlements. Today, as an article in Fortune observes, NDAs have “morphed into an all-purpose cudgel to control employees and suppress criticism.” The giant tech firms impose them on every low-level employee, contractor, vendor, and visitor. According to The Washington Post, Google has even demanded NDAs of public officials while negotiating land purchases and tax breaks; city officials in Midlothian, Texas, gave out more than $10 million in tax breaks to Google before the public knew anything about it. Amazon too required NDAs from officials in cities applying to be the site for its second headquarters.
Although the tech firms have been particularly aggressive in using NDAs to shroud themselves in secrecy, other companies have not been far behind. Even when a court might find NDAs to be overbroad or unconscionable and therefore invalid, they have been a means of intimidating employees and others from disclosing facts the public has a right to know, including facts about misconduct and in some cases crimes.
The NDAs in the sexual harassment settlements have not just been “contracts for silence.” They have been contracts for the surrender of evidence and non-cooperation with other victims. The settlement cases against Bill O’Reilly, according to Kantor and Twohey, required the women “to turn over all their evidence—audio recordings, diaries, emails, backup files, any other shred of proof—to O’Reilly and his lawyers.” The victims (and in one case their lawyers) could not cooperate with anyone else who might have similar claims, and if they received subpoenas, “they were required to notify O’Reilly and his team, who could fight their being called to testify.”
Both Catch and Kill and She Said describe similar restrictions in NDAs that were part of legal settlements with Weinstein. While such settlements have provided financial compensation to the individual women, they have enabled predators to find new victims. The United States, as Kantor and Twohey point out, developed a “system for muting sexual harassment claims.” Not only did the system allow misconduct to continue; the settlements and NDAs “were almost never examined in law school classrooms or open court. This was why the public had never really understood that this was happening.”
“Catch and kill,” the practice that provides the title for Farrow’s book, involves a particularly egregious use of confidentiality. As Farrow’s reporting helped show, American Media, Inc., publisher of the National Enquirer (until April of last year), had long paid for exclusive rights to damaging stories about Donald Trump, required confidentiality clauses as part of the agreements, and then filed the stories away.
Farrow makes a persuasive case in his book that NBC executives killed his story about Weinstein not because he lacked on-the-record sources, but because they were worried that Today host Matt Lauer’s history of abusive behavior might come out. When Farrow then turned to The New Yorker, Weinstein’s lawyers threatened to sue, claiming among other things that Farrow was unable to use the material he originally obtained as an NBC reporter. His investigation of Weinstein might have been killed entirely if The New Yorker hadn’t been willing to ignore those threats and proceed with publication.
PUBLIC CONCERNS ABOUT the dangers of confidentiality provisions in private contracts and legal settlements have arisen before, but the response has been piecemeal. Through “sunshine in litigation” laws and court rulings, states have generally prohibited confidential settlements that conceal public environmental hazards, such as toxic leaks into public waterways.
Those laws haven’t applied to sexual harassment cases, so there has been a new round of legislative efforts to limit NDAs. In one of his last acts as governor of California, Jerry Brown signed legislation prohibiting confidentiality agreements in settlements of cases involving sexual assault, sexual harassment, and gender discrimination after a victim has publicly filed a lawsuit or administrative complaint. The law, however, does not affect the use of NDAs in settlements agreed to before any claim is filed with a public agency. The effect, therefore, may be to discourage public filings and to preserve the status quo.
The battle over NDAs is genuinely complicated. Broader legislation sought by some consumer lawyers in California would have banned NDAs altogether in sexual-abuse cases, but it was killed, according to Kantor and Twohey, by attorney Gloria Allred, who has represented many victims and argues they should be able to choose whether to go public or seek a confidential settlement. “Many victims want the opportunity to enter a confidential settlement,” Allred writes, “because they are unwilling to have what happened to them made known to their family members, their co-workers, their future employers or the general public. That is their right and they have no obligation to anyone to sacrifice their privacy.”
The trouble with that view is that it does nothing to help subsequent victims of a serial predator. It allows each individual victim the right to bargain away the safety of others. Writing in the Stanford Law Review, Ian Ayres, a professor at Yale Law School, offers an interesting, three-part response to this problem. First, NDAs should be enforceable only “if they explicitly disclose” the rights a victim retains to report the perpetrator’s behavior to the Equal Employment Opportunity Commission (EEOC). Second, NDAs would also include a provision voiding the agreement if the perpetrator ever misrepresents interactions with the victim. And third, the victim and perpetrator would each deposit their versions of what happened in an “information escrow,” to be released for investigation by the EEOC or another agency if there is a second complaint against the perpetrator.
As helpful as these reforms would be in sexual-abuse cases, they would still leave us with the general problem created by the expanding use of NDAs to control subordinates and suppress criticism, as well as the other methods that Weinstein and others rely on to intimidate the media and keep incriminating facts secret.
The use of Black Cube’s agents in the Weinstein case illustrates the broader danger of surveillance over journalists as a means of controlling the press. Spyware from another Israeli company, NSO, has been implicated in a series of cases of espionage on journalists and dissidents. The spyware, which targeted individuals unwittingly download on their smartphones when they click on a seemingly innocent text message, enables NSO’s customers to listen to calls, read messages, and turn on a device’s microphone and camera. Lawsuits against NSO allege that the software was used in surveillance of a London-based Arab journalist by the United Arab Emirates, of Mexican journalists by the Mexican government, and of a colleague of the Washington Post journalist Jamal Khashoggi by the Saudis before they murdered Khashoggi.
When spyware and other methods are used to surveil journalists, they don’t just violate personal privacy; they threaten the basic functions of a free press. Together with the spread of NDAs, the proliferation of surveillance tools shifts power toward institutions and individuals that want protection against being held accountable for malfeasance. It’s not hard to imagine how investigative journalism could be shut down entirely if public authorities do nothing to punish the use of spyware and the courts were to enforce charges of “tortious interference” with obligations under NDAs that NBC’s lawyers raised as a reason to stop Farrow’s reporting.
As things are, it’s hard to beat money and power without money and power. The books about the investigative reporting that brought down Weinstein are not David-and-Goliath stories. As Farrow acknowledges, he could not have assumed the risks of a legal battle with Weinstein on his own. He was lucky to be able to turn to The New Yorker after NBC abandoned him, while Kantor and Twohey had The New York Times behind them. The economic decline of the news industry has reduced the number of news organizations that have not only the resources but the courageous leadership willing to support this kind of work. The more troubled the news industry becomes, the more likely investigative journalism is to end up on democracy’s endangered-species list.
