The Moral Hole

Morals clauses aren’t exactly new when it comes to contracts. They’ve been the norm in entertainment and top executive contracts for a long time, just in case the person you bankrolled and relied upon gets caught in flagrante delecto. But not so much in the pedestrian contracts of ordinary writers. As Judith Shulevitz notes, they are now.

Authors are people, often flawed. Sometimes they behave badly. How, for instance, should publishers deal with the #MeToo era, when accusations of sexual impropriety can lead to books being pulled from shelves and syllabuses, as happened last year with the novelists Junot Díaz and Sherman Alexie?

“Often” may be an understatement, not so much that it’s exclusive to writers, but that “to err is human,” and most authors are, arguably, human (Christopher Hitchens excepted, obviously).

One answer is the increasingly widespread “morality clause.” Over the past few years, Simon & Schuster, HarperCollins and Penguin Random House have added such clauses to their standard book contracts. I’ve heard that Hachette Book Group is debating putting one in its trade book contracts, though the publisher wouldn’t confirm it. These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”

As should be obvious, this doesn’t come about because authors have changed. Rather, times have changed, as has the “public condemnation” of anybody who catches the mob’s attention. When that happens, a writer goes from acceptance, if not adoration, to pariah in a flash. More importantly, the publisher’s investment goes down the toilet.

This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.

Did the writer do it? What did they do? What if they didn’t actually do anything, or whatever they did (and whenever they did it) was entirely acceptable and ordinary at the time, but now, in the light of outrage, the writers becomes the “subject of public disrepute”? At least the Condé Nast version has the integrity to leave in the company’s “sole judgment,” making it plain that there is no connection between the writer, the mob and the termination.

But how, you might ask, could anyone be antagonistic to morality? Are we not moral? Isn’t being moral a good thing? Much as “morality” makes for great discussions among philosophers and academics, it’s one of those wonderful words that means everything and nothing. Most of us have a “moral compass,” but it’s our own and, even when similar to others, usually differs in the particulars. There is no Board of Morality, establishing the morality norms to which every individual is compelled to adhere. Even when we agree on the big picture, the details rarely coincide.

Agents hate morality clauses because terms like “public condemnation” are vague and open to abuse, especially if a publisher is looking for an excuse to back out of its contractual obligations.

But that’s exactly why morals clauses are included in contracts, to give publishers a back door, an escape hatch, when a popular writer becomes an overnight outcast. For writers, the problem is that they make a living writing, and if they write something controversial, thoughtful but not in conformity with what the mob wants to read, they stop making money. Even writers have to eat.

Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”

But Gerson gets a paycheck that says “Harvard” on it, so if she rejects a contract with a morals clause, she won’t miss a meal. What about writers who rely on their writing to eat?

It’s not that a company should have to keep on staff a murderer or rapist, she added. But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”

That first sentence includes some serious Gertruding. If someone on staff was a “murderer or rapist,” wouldn’t they be prosecuted, convicted, sentenced, and hence unavailable for writing for life plus cancer? Because if they aren’t convicted, how does one assert that the staff member is a “murderer or rapist”? These are crimes, and the way we know a crime occurred and someone committed it is through a system that results in a conviction.

So if an author’s meal ticket is subject to being pulled based on a twitstorm, and if a twitstorm can arise for good reason or no reason, subject to the whims of the unduly passionate, would a writer be inclined to express any opinion that might inflame the mob?

Regardless of how certain you are as to what is, or isn’t, moral, is the new morality expressing no thought that might bring you into “public disrepute” for being literally awful? Or is your flavor of morality defined by whatever your followers on twitter tell you it is?

22 thoughts on “The Moral Hole

    1. SHG Post author

      If not moot, at least we can take comfort in knowing she won’t be gored by a bull in Pamplona. Also, I’m aging out of being the next Hitchens despite my best efforts.

      Reply
  1. Guitardave

    I hope this isn’t too rabbit-holeish, but it appears to be an end run on 1A, using job security as the impetus for self-censoring.

    Reply
    1. SHG Post author

      Yet again, 1A is a govt prohibition, and these are private publishers. But the influence, between online and dead tree, is certainly limiting the options so that the govt won’t have to.

      Reply
  2. Keith

    The Title IX model has worked so well, perhaps it’s time for Condé Nast to incorporate it into their contracts.

    All terminations would be subject to the Utilitarian tenets of Jeremy Bentham and a Harvard philosophy prof will defend the accused.

    Who would lose their head over that?

    Reply
  3. B. McLeod

    This is really more a “popularity” or “political correctness” clause than a “morals clause.”

    Last year, I saw on the news that the book award that had originally been named after Laura Ingalls Wilder (of “Little House on the Prairie” fame) was renamed because of Wilder’s offensive references to Native Americans. This is just an occupational risk of writers and publishers now.

    Lord only knows what will happen when the NYT finds out Roxane Gay was in “Playboy.”

    Reply
  4. JMK

    I know how much you love tangental anecdotes so please don’t hurt me.

    Morality clauses also seem to have started showing up in contest rules (example, Ford’s current “win an f150” contest states in the fine print that in the event you win the drawing, they have to right to run a background check and if (“in our sole descretion”) they don’t like what they see, you don’t win (cue Gene Wilder: “You lose, sir! Good day!”)

    Reply
    1. SHG Post author

      Contests have also included morals clauses historically, but when you realize they exist for promotion, and the winner gets a gift, it just isn’t that offensive.

      Reply
  5. J. L. S.

    Poor old Mark Twain, O Henry, Henry Miller, J. D. Salinger, Philip Roth, and Valerie Solanas: Shunned by the publishers.

    Reply
  6. Aaron G.

    Pardon my naivety as I’ve only ever signed a dozen contracts in my life but, doesn’t almost every contract end with “Additionally [[company]] reserves the right to terminate parts or all of this contract for any reason not explicitly stated above at [[company]]’s discretion. [[Company]] may also modify the terms outlined above at any time without prior notice.”?

    Essentially isn’t every contract already “we’ll do whatever we want with you, you might get paid”? An explicit morality clause isn’t really a big deal if previous contracts had an anything-else-we-see-fit clause.

    Reply
    1. LocoYokel

      If they did this what would be the point of the contract? It wouldn’t be a contract at that point, just an invitation to bend over.

      My bank and credit cards have sent out notices of terms of service changes, but you have to accept those or close the accounts and go elsewhere by a certain date and they are only forward acting not retro.

      Reply
      1. SHG Post author

        For there to be a contract, there must be something called “consideration,” which means that both sides are required to do/pay something. If only one side is, and the other can simply choose not to without justification, there’s no contract. With credit cards, the usually provide that they can modify terms on notice, so if they do, they send notice (usually 30 days) and you can terminate the card if the new terms are unacceptable to you.

        Reply
        1. Skink

          An explanation straight from the first day of contracts class? Who are you and in what rabbit hole are you hiding the real SHG?

          Reply
        2. LocoYokel

          Yes, that is where I was trying to go but without the detail. Sorry for not being explicit enough but I was going for more of a head-smack rather than a complete explanation.

          Reply
  7. Turk

    The speed by which phony evidence can be digitally manufactured, the speed by which I t can be spread, and the absolute discretion to terminate, make for a particularly diabolical opportunity for dirty tricksters.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.