What Conan O'Brien can and can't say at the Emmys

By Matthew Belloni

EXCLUSIVE: Memo to Conan O'Brien: Watch your mouth at the Emmys.

If O'Brien wins Sunday in the outstanding variety, music or comedy series category for his aborted "Tonight Show" -- a distinct possibility, given the strong Hollywood and populist sentiment behind him in his public separation from NBC -- the host is legally prohibited from saying whatever he wants about his former bosses during an acceptance speech. 

That's because O'Brien's settlement deal with the network contains strict rules against making "disparaging" comments about NBC or NBC Studios, Jay Leno and NBC executives Jeff Zucker, Dick Ebersol, Jeff Gaspin and Marc Graboff.

Those limitations end Sept 1, but the Emmys, which air on NBC, take place three days before the deadline. The event marks one of the first times that O'Brien and his former bosses will be together in the same room. A win for "The Tonight Show With Conan O'Brien" and an O'Brien acceptance speech would present a rare moment of drama at the Emmys.

So what can Conan say? More than you might think.

We've learned that Conan's settlement deal defines disparaging comments as those that are "false" and would be viewed by a reasonable person to be "insulting or defamatory."

The key word is "false." O'Brien can poke fun at his former bosses or even take a shot at Leno as long as his remarks are not both inaccurate and scornful.

"He can still have a field day," says attorney Pierce O'Donnell, who has handled employment settlements in Hollywood cases but was not involved in the O'Brien deal. "He can make fun of NBC's ratings, its shows, as long as he's not saying anything false."

O'Brien left NBC in January after a wild turn of events that saw the network announcing that his "Tonight Show" would be bumped from 11:35 p.m. to 12:05 a.m. to make room for Jay Leno, O'Brien publicly refusing to comply, and NBC and O'Brien's reps working out a $45 million deal for O'Brien and staff to leave -- all while the host continued to slam NBC on his show each night. 

Since the separation, O'Brien and NBC have been careful to honor the terms of the settlement. Conan was prevented from making any media appearances until May 1, so he sat down with CBS' "60 Minutes" for an interview that aired May 2. He is not allowed to host another TV program until Sept. 1, so he took his act on the road for a 30-city live tour.

The "non-disparagement" clause in the deal was heavily negotiated and also prohibits top NBC executives from making false and insulting remarks about O'Brien until Sept. 1.  

O'Donnell said that the specific end date and the "false" requirement are somewhat unusual for high-profile settlements and probably reflect leverage O'Brien had in negotiations. Because O'Brien's settlement allows him to host another show after Sept. 1, his reps -- led by agent Rick Rosen, manager Gavin Polone and lawyers Leigh Brecheen and Patty Glaser -- likely wanted to make sure he could say what he wanted on a new show without fear of interference from NBC. O'Brien's still-untitled TBS show is set to bow in November.  

Regardless, sources in the Conan camp said he has no plans to say anything negative about NBC or anyone else at the Emmys on Sunday. If he did, of course, NBC could always hit the censor button on the live telecast. NBC and O'Brien reps declined to comment.