U.S. First Amendment

The U.S. First Amendment is presented as a boundary against stopping a news organization from publishing through an injunction, but not as a simple answer to the wider culture of silence surrounding harassment allegations. In the book’s account, the principle is invoked during a confrontation over a possible article about settlements paid to Zelda Perkins and Rowena Chiu: the legal obstacle to blocking publication was clear, while the women’s ability to speak remained constrained by private agreements and the conditions under which such cases were handled.

The First Amendment in the New Yorker meeting

In 2002, writer Ken Auletta and other representatives of The New Yorker met with Harvey Weinstein, Bob Weinstein, and David Boies to discuss the settlements involving Perkins and Chiu. When Weinstein threatened to seek an injunction against the magazine, Boies initially appeared to act as a referee. He patted Weinstein’s arm and pointed out that “there was something called the First Amendment that he couldn’t get around.” The exchange made the amendment a practical limit on Weinstein’s proposed response to reporting: a threat of legal action did not itself give him a way to prevent the magazine from publishing.

Boies then turned from Weinstein to the journalists and warned that running the story would be a grave mistake. The shift matters. The First Amendment was acknowledged, but the meeting did not become a straightforward defense of publication. Legal limits on an injunction sat alongside warnings about the consequences of proceeding, in a discussion shaped by disputed accounts of the incident and the absence of an on-the-record allegation.

The difference between publication and private silence

The magazine’s editors ultimately decided that Auletta could not write about the settlements without an on-the-record allegation of assault or proof that company funds had been misused. Bob Weinstein had supplied copies of personal checks he said he had written to the women on his brother’s behalf, presenting them as evidence that company money was not involved. The reporting was therefore stopped not by an injunction, but by the evidentiary limits the journalists believed they faced.

That distinction contrasts with the restrictions Perkins and Chiu had accepted in their settlements. Their agreements limited what they could disclose about the events and their time at Miramax; Perkins was not even permitted to keep a complete copy of her paperwork. The account does not describe a First Amendment challenge to those clauses. Instead, it places the amendment’s protection against a threatened government-backed barrier to publication beside contractual arrangements that narrowed the women’s ability to speak.

The legal and institutional setting

The settlements were not portrayed as unusual solutions. Attorneys told Jodi Kantor that women often signed because they needed money, wanted privacy, saw no better option, or hoped to move on without being branded as liars or habitual litigators. The alternative of going to court could be punishing: the account notes that federal harassment law excluded some workers, that the filing period could be as short as 180 days, and that federal damages were capped at $300,000. These constraints help explain why settlements could seem more attainable than litigation, even when they imposed silence.

The book also describes public agencies as limited sources of information. The Equal Employment Opportunity Commission often kept settlements confidential and could not publicly identify employers with high numbers of charges, leaving prospective employees unable to check an employer’s record through the agency. Those practices are not presented as First Amendment rulings. They show the wider setting in which speech and information were restricted or withheld through legal, contractual, and institutional processes.

Significance in the account

The amendment’s importance here is specific rather than doctrinal: it marks a limit on Weinstein’s threatened effort to stop a magazine from publishing. Yet the episode also resists treating press freedom as equivalent to the freedom of every person involved to tell her story. The journalists’ publication decision turned on corroboration and available evidence; the women’s silence had been shaped by settlements and the risks of pursuing legal claims. The contrast makes the First Amendment visible as one protection within a larger system, not a remedy for every mechanism that kept allegations out of public view.