Fox News anchor Bill O’Reilly is currently embroiled in a vicious legal feud with his ex-wife Maureen McPhilmy over custody of their young son and daughter, the latter of whom told a court-appointed forensic examiner that she had witnessed O’Reilly choking and dragging her mother down a flight of stairs by her neck. Now O’Reilly—who likes to position himself as a defender of press freedoms in the face of “spin” from liberal censors—is trying to ensure other details about his conduct as a father and husband are withheld from journalists. It’s unclear, however, how successful his campaign will be.
In May, Gawker reported that a Nassau County Supreme Court justice had granted McPhilmy sole custody of her and O’Reilly’s two minor children, and that O’Reilly had appealed the decision. Three days later, on May 21, a panel of appellate judges in New York’s Second Judicial Department allowed O’Reilly’s appeal to go forward, thereby delaying enforcement of the new custody arrangement (but not reversing it). The same day, according to a records custodian at the Second Department, O’Reilly filed a related motion about the same custody trial.
This motion was for a gag order—a common but controversial legal device employed by judges (often at the request of one or both parties) to restrict press access to court cases by explicitly forbidding the involved parties from discussing the proceedings with reporters. While gag orders are often reversed on First Amendment grounds, the Supreme Court has twice upheld their constitutional validity. And we know O’Reilly was seeking a gag order because on June 12, the Second Judicial Department issued an unusually detailed order saying exactly that.
The order was attached to the case of Anonymous 2011-1 v. Anonymous 2011-2, the official title of O’Reilly and McPhilmy’s ongoing custody dispute. For orders pertaining to family court matters, including prior orders in O’Reilly’s case, the Second Department often omits information about the appellant’s original motion. But in this instance, the court explicitly stated that the appellant (that is, Bill O’Reilly, or “Anonymous 2011-2”) had sought a “gag order,” and even defined the term:
Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, entered April 28, 2015, for a “gag order” prohibiting the parties and anyone acting on their behalf from divulging to the public and media/press any information pertaining to this case. Upon the papers filed in support of the motion and the papers filed in relation thereto, it is ORDERED that the motion is denied without prejudice to seeking relief in the Supreme Court, Nassau County.
This is a classic gag order, designed to quell media coverage of the person asking the judge for one. (Since O’Reilly and McPhilmy’s children are being independently represented by a court-appointed attorney, furthermore, the gag order would appear to apply to them and their attorney.) However, as the second sentence makes clear—“the motion is denied without prejudice to seeking relief in the Supreme Court, Nassau County”—the Second Department denied O’Reilly’s request on procedural, not jurisprudential, grounds. The denial essentially instructs O’Reilly to file his petition for a gag order in Nassau County (where his trial took place) not the Second Department’s appellate division (which, obviously, only oversees appeals, not trials themselves).
The details of custody trials in New York state’s lower courts are not made available to the public, so it is not clear whether O’Reilly later filed for a gag order in Nassau County—and, if he did so, whether the judge approved it.
It seems clear, however, what O’Reilly thinks about the concept of gag orders and the limits on speech they entail. Last year, for example, he used the term “gag order” to describe the manner in which “communism wipes out all free expression” during his Fox News show The O’Reilly Factor:
“The Factor” host said conservatives in Hollywood are denied jobs, and conservative “New York Times” staff aren’t given good assignments. “Oppressing free speech [is] not unusual in far-left precincts. Communism wipes out all free expression, that’s their doctrine. And now we see the uber left in America trying to impose the same gag order. Well, it’s not going to work, and this program will make sure of that,” he said.
Lawyers for Bill O’Reilly and Maureen McPhilmy did not return requests for comment. Reached by telephone, a representative for the Nassau County Family Court said that she could not disclose whether either party in Anonymous 2011-1 v. Anonymous 2011-2 had petitioned for a gag order, citing the court’s rules of confidentiality.