From The New York Times:
When Simon & Schuster dropped Senator Josh Hawley’s book a day after the Jan. 6 riot at the Capitol, the news caused an explosion of attention, condemnation and praise.
Amid the cries of censorship and cancel culture, however, the way the publisher backed out of the deal got relatively little attention. Simon & Schuster invoked part of its contract typically referred to as a morals clause, which allows a publisher to drop a book if the author does something that is likely to seriously damage sales.
Widely detested by agents and authors, these clauses have become commonplace in mainstream publishing over the last few years. The clauses are rarely used to sever a relationship, but at a time when an online posting can wreak havoc on a writer’s reputation, most major publishing houses have come to insist upon them.
“They’re just something you have to deal with now,” said Gail Ross, a media lawyer and the president of the Ross Yoon Agency, whose clients include Senator Sherrod Brown, former Attorney General Eric Holder and the CNN contributor Van Jones, among dozens of other political figures and journalists. “Because you’re not going to be able to sign a contract without them in some form.”
. . . .
Morals clauses do not require authors to be upstanding citizens. Used in contracts across many industries, such clauses are designed to protect companies’ financial interests if somebody they’ve invested in — be it a chief executive or a football star being paid to wear a logo — does something that harms their reputation. But since the point of these clauses is to protect a company from damaging behavior it doesn’t yet know about, morals clauses are, by their nature, vague.
. . . .
“They’re squishy,” Ms. Ross said. “An agent’s job or a lawyer’s job is to make them as objective as possible.”
The clauses vary from publisher to publisher, and even from one literary agency to the next — every agency strikes its own deal with each publishing house — but the general principle is that they take aim at conduct that would invite widespread public condemnation or significantly diminish sales among the book’s intended audience, and that the publisher didn’t previously know about when it signed the deal. If an author has a propensity for getting in fistfights, for example, the book cannot be dropped because he or she gets in another one.
. . . .
“It diametrically changes the premise between a publisher and an author, which traditionally always meant that the author’s words in the book were what was promised to the publisher, not the behavior beyond it,” said the literary agent Janis Donnaud. “The fact that the publisher can be judge, jury, executioner and, in fact, beneficiary of these clauses seems incredibly outlandish.”
. . . .
Regnery, the conservative publisher that signed Mr. Hawley after Simon & Schuster dropped his book, also has a morals clause — what Thomas Spence, its president and publisher, described as the “infamous 5F of our contract.” Regnery will not take it out.
“This is the one thing in our contract that I have virtually no discretion over,” he said. “I’ve been told it’s got to be in there.” The morals clause in Mr. Hawley’s new contract was not a contentious issue, Mr. Spence added.
. . . .
In the book world, executives say these clauses were a part of Christian publishing agreements before they became fixtures in mainstream deals. The televangelist Benny Hinn was dropped by his publisher, Strang Communications, for violating its “moral turpitude provision” in 2010, after he was caught in a relationship with another minister before his divorce was finalized.
. . . .
The clauses began proliferating more quickly after the #MeToo movement revealed allegations of misconduct against many public figures, including Mark Halperin, a journalist and author whose book contract was canceled by Penguin Random House in 2017 under its conduct clause.
Today, Penguin Random House requires conduct clauses in all its contracts — that way, according to the company, the publisher isn’t implying that it trusts author A but not author B.
. . . .
Agents generally consider Penguin Random House’s clause to be less onerous than others, in part because the company states that authors will not have to repay any money they’ve already received; the publisher just wants the right to walk away. Simon & Schuster, on the other hand, typically includes a clause that says it can demand its money back. (Penguin Random House said last year that it plans to buy Simon & Schuster.)
Link to the rest at The New York Times
PG will observe that morals clauses are massively squishy sorts of things wherever they’re used.
As the OP suggested, some of them are effectively punitive damages clauses when they require an author to repay all the money she/he has received from the publisher, regardless of whether a publisher could prove to a judge or jury that it actually suffered any financial damages due to the author’s misbehavior. As a general proposition, courts tend to look askance at contract provisions that are unduly punitive, but that involves spending the money to get the matter before a judge.
In an era when Woke culture apparently has the power to turn business executives of all sorts into quivering and spineless pools of goo, a morals clause can be dangerous to a traditionally-published author’s financial and emotional health, both presently and in the future.
PG’s three potential responses for an author:
- Provide in the publishing agreement that, if the publisher invokes the morals clause to terminate the publishing agreement, neither the publisher nor any of its employees, agents or representatives will make any public announcement or other disclosure that states or implies that the publishing agreement was terminated due to the author’s alleged violation of the Morals Clause. “The parties have agreed to an amicable termination of their publishing agreement” or something boringly similar announcement of the termination of the publishing contract might be specified in the publishing agreement. The purpose is to make certain that the termination of the publishing contract doesn’t bring any attention to the author or publisher. This gives the publisher the protections it seeks via the Morals Clause without publicly tarring the author’s reputation.
2. Write under a pen name, then live in meatspace and politically under your real name. Demand a clause in your publishing contract that requires the publisher never to disclose your real name and include a substantial financial penalty if they do – 3X the amount of money they have already paid you plus any unpaid portion of your advance if the publisher or any past or present employee ever connects your pen name with your real name. Require that a model be used if the publisher wants an author photo and an agreement that any media interviews be conducted remotely without video. Make certain the publisher’s obligations and penalty for failing to maintain your anonymity continue for the full term of the publishing agreement, e.g., the full term of your copyright.
3. Require that the Morals Clause be reciprocal. Under the publishing agreement, the publisher together with its executives, employees and representatives, will be held the same standards of behavior that apply to the author pursuant to the Morals Clause. In the event of the publisher, etc., violates the morals clause, the author is entitled to exact similar penalties as the publisher can exact if the author violates the morals clause.