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?