O’Reilly was also frosty with Fox hosts. “I’m the big gun,” he declared to Fox executives. His relationship with Sean Hannity was almost nonexistent. O’Reilly, who was trying to build up his talk radio career, was competitive with Hannity, a talk radio star. O’Reilly sniffed to colleagues that Hannity was a right-wing shill. Hannity, in turn, mocked O’Reilly’s tabloid instincts. “Can you believe this garbage?” Hannity complained when he saw O’Reilly on the monitor interviewing a porn star. It made for a tense atmosphere since their offices were both located on the seventeenth floor of the News Corp building and Hannity’s Fox show directly followed O’Reilly’s.
Fox executives had few options to rein O’Reilly in. “His was the only show that Roger doesn’t get the credit for developing,” a senior executive said. Which led to his disastrous encounter with Franken. As Franken was putting the finishing touches on Lies and the Lying Liars Who Tell Them, O’Reilly was completing his own book, Who’s Looking Out for You? On May 30, 2003, O’Reilly was invited to appear onstage with Franken and columnist Molly Ivins to promote their titles at Book Expo America in Los Angeles. Brian Lewis’s deputy, Rob Zimmerman, who handled O’Reilly’s PR, advised O’Reilly against making the trip. “You’re just going to give Franken more ammunition,” Zimmerman told him. O’Reilly ignored him.
The event, televised live on C-Span’s BookTV, was a predictable fiasco for O’Reilly. Standing at the lectern, Franken launched into a humiliating—and hilarious—roast of O’Reilly, and when it was his turn to respond, O’Reilly was painfully defensive.
The moderator watched passively as the two men sniped at each other. “This is what he does,” O’Reilly said. “He is a vicious—and that is with a capital V—person, who is blinded by ideology. And that’s all I’ll say.”
After the story blew up in the media, O’Reilly demanded revenge. He told Fox he wanted to sue Franken. Fox executives thought it a terrible idea, but O’Reilly’s ratings made him hard to ignore. On August 7, 2003, about a month before Franken’s book was set to be released, Fox sued Franken and his publisher, Penguin Group USA, in the Southern District of New York. Fox’s suit against Franken alleged that his book violated the network’s trademark because the cover featured the words “fair and balanced.” The argument was not what got the most attention, however. The complaint was as bellicose as anything O’Reilly said on camera. It described Franken as “a parasite,” “shrill and unstable,” and, worse, “increasingly unfunny.” Penguin’s outside counsel, the acclaimed First Amendment lawyer Floyd Abrams, recalled that “it was one of the most extraordinarily abrasive affidavits I’ve ever read.”
A hearing was scheduled for August 25, 2003. The judge, Denny Chin, essentially laughed Fox’s attorneys out of the room. “Is Fox really claiming that it has a monopoly on the phrase ‘fair and balanced’?” he said. After a five-minute recess, he issued his decision. “This is an easy case,” he declared. Fox’s suit was ruled to be “wholly without merit, both factually and legally.” It was ironic, Chin concluded, “that a media company that should be seeking to protect the First Amendment is seeking to undermine it by claiming a monopoly on the phrase ‘fair and balanced.’ ”
Penguin rushed Lies into bookstores early and it spent weeks on the Times bestseller list. Fox waved the white flag. “It’s time to return Al Franken to the obscurity that he’s normally accustomed to,” a spokeswoman told the press. Except Franken was bigger than ever. He launched a show on Air America, the new liberal talk radio network, and called it The O’Franken Factor. He later parlayed his fame into a successful run for the United States Senate.
In public, Ailes backed O’Reilly. “When somebody calls you a liar to your face, you know, sooner or later, you either say ‘shut up,’ or pop him, or leave,” he told a reporter. “I think Bill was restrained. I wouldn’t have given a shit. In the old days I would have popped him one.” But in private, Fox executives struggled to figure out how to contain O’Reilly. When Ailes recruited O’Reilly, it was clear there was a risk he could self-destruct, since it had happened a half dozen times earlier in his career.
And then it happened again. The letter was hand-delivered to Ailes’s office on the morning of Wednesday, September 29, 2004. Although it was short, just six terse paragraphs, the words on the page left little doubt that Ailes had a serious problem on his hands. It was sent on letterhead from the law offices of Benedict P. Morelli & Associates, a boutique Manhattan firm specializing in highprofile personal injury and employment cases. Morelli wrote that he represented “a young woman employee of Fox.” His unnamed client had endured “constant and relentless sexual harassment” from “one of Fox’s most prominent on-air personalities.” Morelli indicated that a settlement was the most favorable course of action. If not, he would sue, an outcome, he warned, that “would be extremely damaging to both Fox’s reputation and the reputation of the individual involved.”
Morelli was a virtuoso trial lawyer who needed to be taken seriously. He claimed to have lost only two cases in twenty years, and was a fixture on New York’s tabloid stage. Dianne Brandi, Fox’s legal chief, went to investigate. Brandi met Morelli at his office on the East Side of Manhattan and reported back. Morelli’s client was a thirty-three-year-old associate Fox News producer named Andrea Mackris. The alleged perpetrator of the “constant and relentless sexual harassment” was her boss: Bill O’Reilly. Having handled employment matters for Ailes, Brandi had presumably seen a lot in her time at Fox. “Dianne would often say, ‘Get out of this place, they don’t treat anyone well here,’ ” a Fox colleague recalled. And she may herself have felt out of step at Fox. “Not my politics,” she once told a TV agent. Sex was a fact of life at Fox. “The whole Fox culture, like the New York Post newsroom, had a whole sexualized nature to it,” a former female Fox producer said. But the Mackris suit was something new.
In their meeting, Morelli showed Brandi a draft of the five-count lawsuit. The document stipulated that settling each count would cost O’Reilly $100 million—but Morelli explained that Mackris would be willing to take “10 cents on the dollar, but nothing less.” The discounted settlement amounted to the staggering sum of $60 million.
Mackris was not saying that O’Reilly ever touched her. What was detailed in the draft complaint was perhaps more damaging. The complaint told a strange tale that started with inappropriate office banter and culminated two years later with a late-night phone call at the 2004 Republican National Convention, in which O’Reilly masturbated while telling Mackris his sex fantasies. In exacting detail, the suit portrayed O’Reilly as a hypersexualized misogynist with a romance novelist’s imagination. In one infamous exchange, O’Reilly described taking Mackris on a Caribbean sexcapade. “You would basically be in the shower and then I would come in and I’d join you and you would have your back to me and I would take that little loofa thing and kinda’ soap up your back … rub it all over you, get you to relax.… So anyway I’d be rubbing your big boobs and getting your nipples really hard, kinda’ kissing your neck from behind … and then I would take the other hand with the falafel [sic] thing and I’d put it on your pussy but you’d have to do it really light, just kind of a tease business …”