Morals clauses are despised by many authors and agents, but big publishers insist that they need a way out if a writer’s reputation takes a nosedive.
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 principal 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.
Publishing executives insist that in an era when social media can unravel a reputation overnight, their ability to market a book can evaporate just as quickly. Many agents and authors, on the other hand, see the clauses as dangerously subjective, allowing publishers to dump a project based on their own assessment of a writer’s conduct.
“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.
A representative for Mr. Hawley did not respond to requests for comment.
Other businesses, particularly in media, entertainment and sports, have long used morals clauses. Stuart Brotman, a professor at the University of Tennessee, Knoxville, who has studied these clauses, said they were in old Hollywood movie contracts — he said a morals clause was what allowed Paramount Pictures to drop the comedian Roscoe “Fatty” Arbuckle during the silent film era, after he was accused of sexually assaulting a woman and accidentally killing her. He was eventually found not guilty. In the 1970s, the actor Wayne Rogers left the show “M*A*S*H” because he didn’t want to sign a morals clause.
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.
Agents and executives say high-profile implosions, like that of the celebrity chef Paula Deen in 2013, prompted mainstream publishers to protect themselves. Ms. Deen admitted in a legal deposition that she had previously used racist language and allowed racist, homophobic, anti-Semitic and sexist jokes in one of her restaurants, and in the span of about a week, companies including Sears, Kmart, the Food Network and Walmart said they were suspending or cutting ties with her. Her publisher, Ballantine Books, canceled a five-book contract.
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. Even some smaller publishing houses, like Abrams, demand them, but the clauses are unusual among independent publishers, according to Dan Simon, a founder of the Independent Publishers Caucus.
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.)
While some in the industry fear that the decision to cancel Mr. Hawley’s book sets a dangerous precedent, many publishing professionals — even agents and authors opposed to morals clauses — said they thought Simon & Schuster made the right call.
Mr. Spence, his new publisher, hopes that the attention, and even the condemnation, might mean more buyers for Mr. Hawley’s book.
“That’s our assumption and hope,” he said. “We’ll see.”
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