After generations of ironclad hush agreements, the stakes of silence have gotten too big for the payouts to provide a compelling incentive. And when one goes, they all do. It’s going to get a lot harder for abusers to cover up their indiscretions.
The humble non-disclosure agreement has fallen on hard times. Pacts that Kevin Spacey thought would protect his career have melted down, taking his reputation along with the “gifts” he paid.
And as Harvey Weinstein’s grotesque downfall ripples through Hollywood, payouts made 20-30 years ago just aren’t big enough to overcome the relief of spilling the secret in an increasingly grateful public.
That leaves celebrities with skeletons to hide in an incredibly vulnerable position.
From Harvey to Spacey
Weinstein’s downfall keeps accelerating, with rape charges now likely in New York. It started when a former assistant broke her NDA to confirm a pattern behind the latest allegations.
Her hush settlement for staying quiet about harassment on the job and the way Harvey treated up-and-coming actresses held for almost two decades.
She’s beyond career threats now. By the time she came forward, Harvey was largely finished in Hollywood anyway.
And the settlement maybe earned her $15,000 per year of silence, which isn’t exactly a life-changing windfall these days.
Harvey’s probably lucky none of his victims turned down the settlement and gave up a movie career in order to blackmail him. So is Spacey, who apparently handed out luxury watches to buy silence from bartenders he groped.
Spacey didn’t even send the lawyers with paperwork to give his deals legal teeth. For one of the biggest — and most rigorously closeted — stars on the planet, that’s incredibly foolhardy.
Any of his young targets could have taken the payout and decided he wanted more. Those young enough to make a case Spacey molested them could have easily broken his career.
Of course it’s tough to enforce any kind of contract with kids, so he was literally flirting with disaster either way. The fact that it took 30 years for the “informal” hush deals to blow up in his face is probably the most remarkable thing of all here.
Even if he’d sent the lawyers, enforcing an NDA in these scenarios would have been tricky business. The biggest reason to uphold the agreement is to keep the payout from being taken back in a breach — the threat of getting sued for non-compliance is secondary.
That’s a calculus of pure math versus the intangibles. If resentment and revenge outweigh the dollar signs, you’re going to need a bigger dollar sign or the agreement is going to fail.
Harvey Weinstein occasionally bid the price of silence up to $1 million. By Hollywood standards, that’s not always going to be a big number any more. Again, Spacey’s paltry payouts add up to nothing short of a miracle that he wasn’t outed previously.
Making victims complicit in the crime
There’s also courage in numbers that means that if any of a serial harasser’s agreements breaks down, the others run the risk of evaporating along with it.
If you feel like you’re the only one keeping the secret, any leaks are obviously your fault. But when you see other people in the same position going public, the guilt is distributed and so the load feels lighter.
And if you’ve witnessed a crime, breaching the agreement is less serious than failing to come forward. Breaking a contract is generally a civil offense. Failing to report workplace harassment or worse is at least as bad — and if you take money to keep your mouth shut, it’s a crime.
Despite the Weinstein lawyers’ best efforts, NDAs that put people in that kind of double blind are only vaguely enforceable. In general, forbidding someone from making required disclosure to the authorities isn’t a great move.
Harvey’s assistant originally broke her professional cover when she watched him assault her friend. Speaking up then got her a cash settlement and a non-disclosure form.
Since the friend also signed, taking the case to court was vanishingly unlikely. But if she had pressed charges, the NDA wouldn’t have protected anyone if the lawyers compelled testimony.
The worse the crimes, the more critical this principle is. If anyone saw Kevin Spacey cavort with 14- to 16-year-olds, they were complicit in sexual rape, solicitation of a minor or whatever charge fit the situation, NDA be damned. You’ve got to say something.
And even if for some reason the abusers control themselves enough to respect all laws and workplace regulations, the agreement only buys the level of silence its accompanying incentives pay for.
Think of the risk-return calculations that drive a successful prenuptial contract. The spouse who signs away freedom of action is more likely to follow the terms if he or she gets a significant reward for compliance.
For a big Hollywood wheel, writing checks for $1 million is probably a good place to start, especially when you consider the career earnings at stake. Anything less may work once or twice, but pushing your luck too often adds up to professional suicide sooner or later.
Spacey beat the odds and kept his secrets for decades. Now his luck may have run out. Netflix has canceled his projects and the movie studios are reluctant to work with him again.
As far as anyone knows, the statute of limitations on his activities has run out. At least he’s not going to jail. For all his NDAs, Harvey Weinstein may not be able to say that now.
