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Publishers Endanger Free Speech

As PG has mentioned before, unlike many other places of online discussion, TPV is not about politics.

The cited article includes political commentary, but the portions PG is excerpting may be of significant importance to authors regardless of their personal political preferences.

From National Review:

The First Amendment has never been stronger. Yet freedom of speech is under dire threat. Both of these things can be true, and both are.

. . . .

Publishers are presenting authors with contracts containing clauses that essentially say, “We will cut you loose should a Twitter mob come after you.” It’s a revolting, shameful trend.

As Judith Shulevitz writes in the New York Times, Condé Nast, publisher of The New Yorker, Vanity Fair, and many other magazines, recently started burying in its standard writers’ contracts a landmine. If the company should unilaterally rule that the writer has become “the subject of public disrepute, contempt, complaints or scandals,” the publisher can void the contract. Shulevitz mislabels such stipulations “morality clauses.” To paraphrase Mae West, morality has nothing to do with it. “Cowardice clauses” would be nearer the mark.

. . . .

Book-publishing giants Simon & Schuster, HarperCollins, and Penguin Random House have added cowardice clauses to their standard book contracts, and Shulevitz says she’s heard that Hachette Book Group is considering doing the same. (Penguin, to its credit, allows authors to keep their advances, but others don’t, says Shulevitz.) Penguin’s clause justifies itself with a reference to anticipated adverse impacts on business, warning authors not to do anything that might cause “sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.” That rationalization won’t withstand much scrutiny. Bill O’Reilly’s latest book stands at number four on the Times’ nonfiction bestseller list, and he was not only pilloried for years but actually fired by Fox News Channel due to scandal. Ann Coulter, Dinesh D’Souza, Tucker Carlson, and many other commentators who are vilified daily on social media (and in D’Souza’s case, actually spent time behind bars) sell books by the truckload. If anything, “being the subject of public disrepute, contempt, complaints or scandals” seems to boost sales, and publishers are well aware of this. Calumny, contumely, and controversy sell. I’m On the Fence About Trump is not a title Simon and Schuster wants to publish.

. . . .

So why are book and magazine publishers putting such language in their contracts? Because they fear rebuke themselves. They don’t want to get dragged by association. “@PenguinRandom are you okay with what your author Mac McSmartypants just said to Chris Cuomo???” is not a comment a book publisher wants to see issuing from the Olympus of Alyssa Milano’s Twitter account and retweeted so many times it reaches more people than the population of France. The temperate response — “Publishing an author does not constitute an endorsement of his or her ideas” — will be ignored, laughed at, swept away in the tide of outrage, even though it’s true.

Link to the rest at National Review

Yet one more reason for authors to read their contracts very carefully.

PG hasn’t seen any political chastity clauses in contracts his clients have asked him to review. He would love to see any that visitors to TPV would like to send to him.

Although PG will not disclose the identity of those who submit such contracts to him, he would prefer that such contracts he receives omit or remove the names of the authors, book titles, or any other information that might be used to identify the author or book(s) in question.

PG will also note that just like no one knows you’re a dog on the internet, no one knows that you are a jealous rival, former spouse, partner, etc., on the internet, so the wildest accusations, well designed, can trigger internet outrage.

 

 

Big Publishing, Contracts

39 Comments to “Publishers Endanger Free Speech”

  1. Same ol same ol, a twit taken the wrong way has lost plenty of people their jobs, no surprise trad-pub is no different. And there’s not a single thing you can say or do these days that won’t ‘trigger’ some stupidly delicate snowflake (SDS (c) ). (Like I probably just did ..)

    “Yet one more reason for authors to read their contracts very carefully.”

    Or avoid them altogether and go indie.

    MYMV and the SDS types never notice you or what you have to say.

  2. Not just on the internet.
    Media lynching is a long established practice going back several centuries. Main difference now is that most anybody can play that game.

  3. Interesting element. I often think of these “new developments” as nothing more than an employer trying to have the same power it does over contractors as it does over actual employers.

    If you’re an employee, you don’t get to show up to work and serve customers in a Swastika t-shirt, but you can wear it if you like on the weekend. The employer who pays the band calls the tune.

    Equally, the entertainment business has “contracts” but usually they seem so one-sided that they are almost like “options” than actual contracts. Roseanne can get “fired”, but they don’t need a reason to do it, they can cancel or recast or just dump her because Scorpio was rising and the exec exec is a Capricorn.

    For me, this is just extending what employers normally have for employees and adding it for excuses to terminate contracts for book and magazine writing too.

    I wonder if all these types of contracts will become even more just “options” that just aren’t followed up rather than terminated. Kind of like the new normal for TV shows — none of them are ever announced as “cancelled” anymore, they’re “not renewed”, and some of them aren’t “announced” at all.

    P.

    • My impression from reading a number of articles on these clauses is that they go further than you imply. To use your analogy they are saying that you cannot wear your swastika tea-shirt at the weekend because as an author you are on duty 24 hours a day, 365 days a year (plus in some cases you don’t even have to own one if a twitter mob decides to say you were seen wearing it).

      • That’s what I’m thinking as well, Mike. If anyone takes a picture of you in your swastika shirt and posts it on the Internet, your publisher could fire you for violating the morality clause.

        Even if you were just taking a break outside the stage door at the little theater where you were playing a role. (Lest you wonder, my sibling was moving props from the prop shop and someone called the police because of a Nazi rally in progress. The banners had already been mounted on poles. Thanks be, this was before Insta-Twit-Book.)

        • To further the comparison to regular employees, it would be like someone on twitter claiming they saw you wearing that swastika t-shirt on the weekend, your employer firing you, and then demanding that you pay them back for all the wages you have earned while working for them.

          I’m pretty sure that it is illegal for employers to demand a fired employee pay back their wages, which means that this morality clause is so far beyond what employers demand of employees that it can’t see normal in the rear view mirror.

      • Sorry, I was a bit “abrupt” when I wrote that (or rather when I edited it back from my 12 page treatise that I normally write!). What I was trying to get at is that employers already restrict FoS when they stop you from wearing it to work. That isn’t a First Amendment issue. And iff you get shown on national TV saluting the Fuhrer, even on private time, they can still get rid of you, but only THEN does it potentially become a FoS issue, and they can still fire you…the legal threshold is so low, you’re likely gone.

        The extension to contracts really doesn’t change much to me — if you were an employee, they’d turf you, it seems to me this just tries to give that power for contractors too. And since you can’t “fire” someone who doesn’t work for you, you have to put it in as a contract term.

        Contractor or employee, it strikes me as the same issue…can you be terminated for what you do in your private life? And the case law basically seems to say yes, certainly on the employment side in private sector, if there is any risk of blowback to the employer.

        What would be interesting to know, to me at least, is if you were John Q. Public but you wrote secretly under the name Jane P. Author, could they still terminate you? Because there would be no link between the “media mob” and their selling your books. Assuming anyone can publish under a true pseudonym anymore…

        P.

        • The way these clauses are worded, what is considered a breach is decided entirely by the publishers at their own pleasure. In other words, they can terminate any contract with any author, at any time, for any reason that comes into their head. And they can demand the full advance back, which (if you followed the publisher’s instructions) you have already spent on promoting your book, because they no longer consider that to be any part of their job.

          Anyone who signs a contract with such a provision is a fool.

        • Strictly speaking, it is the publisher who is the contractor to the author. Authors create the product and license it out to the publisher for distribution. Contractors work for the owner of the finished product–owners don’t work for the contractor. An author is only a contractor if they are doing work for hire writing and doesn’t own the IP.

          The fundamental dysfunction of tradpub is the inversion of the more common business contractual relationship. The coward clause treating authors like employees only compounds the dysfunction.

          • The fundamental dysfunction of tradpub is the inversion of the more common business contractual relationship.

            In a market with a supply that dwarfs the demand at prevailing prices, it’s not a dysfunction. It’s an expected and rational economic outcome.

            Cut supply way back until demand exceeds supply at prevailing prices, and the power will shift to authors.

            We would have a dysfunction if authors had power when supply greatly exceeded demand at prevailing prices. That would indeed be at odds with economic observation of almost all other markets.

            It doesn’t matter what we name the parties to an agreement. Much more powerful forces rule them all.

            • This isn’t a matter of economics.
              It is one thing for a distributor to set terms for distributing a product–walmart does it all the time–and another to effectively tell suppliers how to live their lives. Employees have to grin and bear things like drug tests but not suppliers.

              Not everything reduces to supply and demand.

              • I agree. That’s why I addressed the “inversion of the more common business contractual relationship.” As presented, we are told the coward clause compounds the dysfunction. I addressed the cited dysfunction, not the compounding effect.

                That inversion does indeed reduce to supply and demand.

                However, let’s take a look at the coward clause and its compounding effect. Publishers could not include the clause if the demand for manuscripts at prevailing prices was larger than the supply. They would not have the power to do it.

                They can do it because the supply at prevailing prices is so much larger than demand. The publishers have the power, and that power lets then include the clause.

                And that’s why authors will sign. If they don’t there is a conga line of other authors behind them who will.

                • I have it on good authority from people in the industry that the conga line you speak of is a lot shorter than it used to be. Moreover, the number of commercially valuable writers in that line has decreased alarmingly.

                  It doesn’t matter a rat’s arse how many unpublishable writers are willing to sell their souls to publishers, nor how cheaply. Publishers do not have a magical power to market the unmarketable.

                • Again: this isn’t a matter of what some people will submit to. Desperate people submit to even worse things. (Demeaning, exploitative, and even illegal activities.)
                  It is whether this kind of behavior is an acceptable business practice.

                  It is a pretty low bar to argue any behavior is acceptable as long as some (insert adjective/descriptor of choice) person is willing to submit.

                • I have it on good authority from people in the industry that the conga line you speak of is a lot shorter than it used to be.

                  Agree. I have it on good authority that the conga line now stretches from New York to Chicago. It used to go all the way to LA.

                • It is a pretty low bar to argue any behavior is acceptable as long as some (insert adjective/descriptor of choice) person is willing to submit.

                  Searching the horizon for someone who argued the behavior was acceptable…

                  Observing, recognizing, and acknowledging economic forces at work does not imply acceptance. Good analysis requires neither acceptance nor rejection. That comes later in the advocacy stage. I haven’t gone there, but it might be fun.

  4. Why do we need publishers again?

    Oh, right, prestige.

    The price for prestige is getting too high.

  5. There’s a long discussion on this topic at the Killzone (mystery writers) blog. It’s worth the read.

    https://killzoneblog.com/2019/01/morality-and-the-modern-writer.html

  6. Do the publishers really need to care about any opprobrium coming their way? Some publishing executives may take a bit of stick from their (normally) liberal friends but does it hit the conglomerates where it matters in the bottom line?

    With a few exceptions (mostly I think non fiction like Osprey) the publishers are not the brand and I expect that book buyers will mostly not even notice who is publishing the books from a favoured author let alone avoid them because of the publisher’s identity.

    The author is the brand and their reputation matters, though the examples quoted suggest that what counts as reputational damage may be rather flexible. Most fiction writers are probably best advised not to piss off all Democrats or all Republicans but on the non fiction/opinion side slagging off a political group may encourage sales (pleasing both the author and the publisher).

  7. This is very dicey territory. I’m not under a publisher contract at the moment, so (for now) I needn’t worry. But a few months back Twitter received a complaint about me because I said publicly that Star Trek: The Next Generation was my favorite of the Trek series and DS 9 was my least favorite.

    I affirm to you this is the truth. What would a publisher do with the fact a complaint was registered?

    • Obviously they would blacklist you for having the poor taste to prefer STNG over the Best. Trek. Series. Ever!

      But that is because blacklisting is what they do, not because there is anything wrong with preferring Wesley Crusher to Jadzia Dax. 😉

      • Surely Deb can prefer STNG to DS9 despite Wesley Crusher? I would admit that calling DS9 the worst is going a bit far when there are Enterprise and Voyager in the mix. Still, what do I know, my favourite SF TV show was Farscape, though it might have been Firefly if the idiots in suits hadn’t cancelled it!

        • I’m lodging a complaint with Passive Guy. Voyager was the best Trek series, hands down. Although I do admit to a massive teen crush on Wesley. Still, Voyager for the win. 😀 I didn’t like Firefly. Serenity was great though!

          • Wesley’s negative impact was as great as Q’s positive. He and JarJarBinks are in a class of their own.

            • Careful, JarJar’s fan will launch a tweetstorm at you! 🙂

              • No matter what PG asks, politics always rears its head…

                I would note that one candidate self-identifying as “Star Trek” is apparently not even worth consideration for either an up vote or a down vote.

                • Actually two series have not been mentioned but I guess that TOS is sui generis and stands above the conflict.

                  Dare I mention that I did not really mind JarJar – though I’m definitely not his one fan that Felix is threatening us with – and quite enjoyed the three prequels: so much star ship porn, though the romance was just embarrassing to watch.

                  And speaking of Romance, Voyager did at least have the best romance of any ST series, though the competition is not high.

                • Nobody dares criticize TOS, nobody dares defend STD.
                  It’s dangerous in Star Trek land these days. The natives are restless…

            • Oh how desperately I hate Q. It wasn’t the actor’s fault but I just couldn’t stand him. I avoid those episodes every time I rewatch.

      • Ahem, more seriously, under the coward clause, this star MLB pitcher would’ve been cut loose yesterday over a tweetstorm:

        https://www.usatoday.com/story/sports/mlb/2019/01/09/trevor-bauer-cleveland-indians-twitter/2529398002/

        • Surely only if he was performing badly and the team was looking for an excuse to get out of his contract cheaply? Isn’t that one of the great benefits of coward clauses?

          Like many twitter storms it doesn’t really deserve to escape its proverbial teacup, though he does seem to have been a bit of a jerk. Lets hope that the people involved – particularly the young lady – have learnt that, even is a law seems silly and more honoured in the breach than the observance, it is still not a good idea to post evidence of your crime on social media (and even more so if you have ambitions to be a traditionally published author).

          • Bauer is:
            – 27 years old
            – extremely talented
            – extremely hard working
            – extremely self-assured
            – totally fearless and outspoken
            – a perfectionist
            – financially set for life, with prospective future earnings in the 9-figure range. He earned $6.5M in 2018, is looking at a 2019 salary in the $11M range, and a multiyear contract in the $200-300m range.

            Snowflake meets jerk.

            Thought experiment: would a publisher apply the coward clause to Patterson or King? Not likely.

            • Answer to your thought experiment: hell no! No more than his team is going to get rid of an “extremely talented” player.

              • Some animals are more equal.

                As the snowflake discovered by inserting herself into the not-so-friendly ribbing between two of the best young players in MLB. (There is history between the teams and the players.)

                She just discovered Real Life 101: some people don’t care whether you like them or not.

                Also sports life 101: fan is short for fanatic.

                Teachable moment.

            • Thought experiment: would a publisher apply the coward clause to Patterson or King? Not likely.

              No. The demand for King and Patterson manuscripts far exceeds the demand. Many publishers want them. King and Patterson have the economic power, not the publisher. Publishers are happy to compete for them.

              Alternatively, zillions of authors compete for publishers, giving publishers the economic power.

              • King has become so political over the past few years that I stopped reading his books, can’t enjoy them anymore. Sadly the first novel I remember reading was Pet Semetary(sp). Has he been dropped by his publisher? Of course not.

                Do you think he would have been dropped if he came out on the opposite political side with as much venom? Wouldn’t happen of course as birds of a feather, etc. But still an interesting thought, for me at least.

                My point is you can be politically radical and a big mouth in public as long as your politics are in line with those of your ‘bosses’.

                Actor James Woods has been suspended from Twitter periodically for being as political as King, but in the other direction. And likely blacklisted to some extent in Hwood too.

                Not apples to apples, but still a hint that if Patterson or King attacked the last president as much as King attacks this one, there would be some consequences – and they would shut up/reverse course immediately.

                • Orson Scott Card is vilified for his religious beliefs and personal positions. But he’s a big seller: no coward clause for him.

                  Money trumps “Morality”.
                  Coward clauses don’t apply to big sellers.
                  Some animals are more equal.

                • My point is you can be politically radical and a big mouth in public as long as your politics are in line with those of your ‘bosses’.

                  You can also be politically radical, a big mouth in public, and oppose publishers’ political views as long as you make a pile of money for them.

                  Follow the money.

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