Peter Bart and Mike Fleming Jr. worked together for two decades at Daily Variety. In this occasional column, two old friends get together and grind their axes, mostly on the movie business.
BART: When do you break a story? I first ran into that question when I foolishly ran the name of a murder victim before his next of kin were notified. I was on the crime beat for the Chicago Sun-Times at the time and I got yelled at by my city editor who, in turn, had heard about it from the cops.
Now, in Hollywood, 2018, the question is bugging me again, but this time it involves the supposed perpetrators, not the victims. With ever greater frequency I read names of individuals (often prominent names) who are alleged to have committed illegal or inappropriate acts — charges that have not as yet been validated or even responded to. The upshot: Reputations are bruised if not destroyed. Is this becoming a form of #MeToo tyranny – unintended but real?
One example relates to John Bailey, the newly installed President of the Academy, who was just cleared after being investigated by his own Board at the Academy for unstated allegations that we assume involve sexual indiscretion. Variety broke the story without comment from Bailey or an accuser or any detail about the nature of the allegations. Bailey reportedly hired an attorney and we were left to make assumptions because the other side wasn’t included in the report.
FLEMING: The burden of proof seemed low here. I understand your alarm. Every editor chooses which stories to break and these aren’t easy when you know in the back of your mind that the #MeToo movement has the potential to change abhorrent actions, but that it could also be weaponized, with media serving as the delivery system, as we saw in the Sony hack several years ago. The criminal justice system has largely been sidelined in this trial-by-media cycle. Since those terrific first articles on Harvey Weinstein by The New York Times and The New Yorker, there have been plenty of followup stories about criminal investigations of Weinstein in London, LA and New York. There is even Governor Andrew Cuomo’s investigation of the investigation that Manhattan DA Cyrus Vance conducted when Italian model Ambra Battilana first made allegations against Weinstein and wore a wire. While the episode prompted ITV to back away from a lucrative deal to buy TWC, no charges were filed in 2015. But it is six months since those earthshaking Weinstein expose pieces, and he hasn’t been charged with a crime.
Subsequent take down articles that toppled dozens of powerful people established this minimum requirement: an accuser on the record, with a couple of her friends who would vouch that the victim mentioned the affront to them around the time it happened. Bailey was different. No specific accuser, or allegation, just an assertion of multiple complaints arriving the day before the story ran — conveniently, after the Academy Awards was over. Bailey eventually denied accusation to Academy staff and clarified that it wasn’t multiple complaint but rather one for a long ago incident he denied happened. I agree with your concern, but this thing is just going to run its course and I am not sure there is much you can do at this point but shake your head.
I met Ronan Farrow at one of the pre-Oscar agency parties, and told him that despite all the hurdles and legal threats that faced Farrow and NY Times reporters Jodi Kantor and Megan Twohey, the stories they wrote were wonderful because they reflected months of work and research. They bagged the biggest alleged culprit at the start and left an impossible to top quality bar. A lot of the subsequent reports have been rushed, certain reported claims had to be walked back, and some of the cases — Bailey included — were inconclusive enough that you can almost feel one cycle ending and another poised to begin. That is the one where disgraced men start coming back. Just yesterday, a former head of the Berlin Film Festival defended Weinstein in a widely picked up op-ed. This is a position nobody would have taken two months ago. Was he coaxed into writing this? Will more testimonials follow?
There is so much spinning in the rushed coverage. Take even the situation at The Weinstein Company, a corporate casualty of the scandal. Even though the New York Attorney General claimed that TWC’s plunge into bankruptcy was a “watershed moment” because the board of directors lifted employee Non Disclosure Agreements, it looks from here like the situation is potentially terrible for employees who are leaving, and potentially devastating for victims who are left with less protection than they would have had if that $500 million deal where Yucaipa, Maria Contreras-Sweet and Lantern Capital had closed. That deal was all but done when the AG filed the civil rights lawsuit that brought the transaction to a halt and introduced a moral referendum. The AG tried to patch up the deal, but the lost momentum was never fully recovered, and bankruptcy followed. Is the lifting of the NDAs worth all this? People there told me that employees interviewed by the AG’s staff already told what they knew.
The NDAs that accompanied decades of hush money payments from Weinstein were not impacted, so what really was gained? Victims who might have tapped into a fund carved out in the original deal now have to hope the new owners of TWC assets feel a moral obligation to do the right thing and set money aside. Bankruptcy will absolve them of legal obligation. The goal in bankruptcy is first and foremost to recover the highest amount of money for creditors. Some close to the situation believe the company could be split into pieces, despite Lantern’s attempt to buy it all as stalking horse bidder. Beyond the $30M insurance policy – we all thought it was closer to $60M, with that amount bolstered by a victims’ fund of nearly $40M that the AG helped negotiate before that deal fell apart – you wonder if the plaintiffs will even have time to get in that line, since the assets are expected to washed clean by bankruptcy within 60 days from when the clock started on March 19. It is possible that the victims can fall through the cracks here, and would have been better served had that original deal closed before it got hamstrung by well-meaning people, riding around on moral high horses.
BART: Back to Bailey. So the Academy investigated – a probe led by David Rubin, a casting director by trade who is an Academy governor. Under the Academy’s newly adopted code of conduct, a grievance of this sort was given a “fair and methodical” investigation. At the end of it, Bailey, an accomplished cinematographer, was cleared. I myself have no knowledge of the Bailey case, but I have one big question: Even though he has been cleared, will Bailey effectively ever be cleared? Or will he fade into the Ryan Seacrest-like grey zone where charges are vehemently denied, and yet tacitly believed? Or the Charlie Rose zone when, despite denials, a career is terminated by heavily publicized accusers.
FLEMING: In the court of public opinion, Bailey will always be tainted just as Seacrest was in pre-Oscar stories that followed his exoneration by the E! Network. We’re not privy to those internal reports, and have no way of knowing how much scrutiny went into either investigation. Peter, you’ve been on the studio side and the journalist side as the editor of Variety for two decades. Would you have jumped on the John Bailey story as aggressively as Variety did?
BART: Having worked at three studios, there were several instances in which I observed harassment and irresponsible behavior — sometimes at the highest executive levels. And there were at least three situations in which I participated in terminating those individuals. At that time ‘cover stories’ were always used; a company didn’t announce harassment charges. When I decided to return to journalism as editor in chief of Variety and Daily Variety, I attempted to ‘break’ stories on the harassment issue. At that moment in time, however, actresses and other figures in the business did not want to run the risk of telling their stories. And I did not want to run pieces without specific names and places. Nor did I believe it was appropriate to publish allegations without the proper responses and investigations.
FLEMING: Were any of these incidents the ones that have been exposed in the last six months?
FLEMING: This feels similar to the Sony hack where editors made their own moral decisions in the moment. There is no playbook here to tell you how to balance the public’s right to know and the urge to expose wrongdoing, with empathy and fairness. I’m still not sure what the right move was, here. But Variety has done some good and aggressive reporting on this track. I’m not sure any editor could have ducked these stories. The fact is, the Academy did investigate Bailey; an angry victim came forward to tell her version of the Seacrest story after he foolishly wrote a victory lap column about being wrongly accused because he’d been cleared in an internal investigation. And there are dozens of examples where abusive men deserved to be taken down a few notches or worse, and they sure have. But as this toxic tidal wave begins to ebb, you see the limits of this trial-by-media cycle, with no criminal justice behind it to enforce consequences. The trail is marked with heartbreaking victim stories, and the suicide of Jill Messick. But the men disgraced in these press stories learned that embarrassment isn’t fatal. Will Kevin Spacey, indisputably one of the great living actors, reclaim his career? Will Louis C.K. be back doing stand up comedy, and Matt Lauer and Charlie Rose back doing TV? Is there any reason to think that John Lasseter won’t return to the top of Pixar when his six-month sabbatical ends May 21? Even though corporations reacted swiftly to kick out these guys in the scandal cloud, neither Harvey Weinstein nor anyone else in these scandals has felt the cold pinch of handcuffs.
BART: Look, things got out of control on many levels in Hollywood in the ‘70s and ‘80s. One often found oneself in difficult situations, both on the playing field and as an editor. There are many positive portents that I observe today that would indicate that, to put it bluntly, people are behaving themselves. It’s about time.