Simon & Schuster dropped Senator Josh Hawley’s book a day after the January 6 insurrection and his behavior and statements surrounding it. Many people jumped on social media and accused the multinational corporation of censorship and “cancel culture.” The truth is, Simon & Schuster invoked a clause in its contract known as a morals clause. The language in that clause allows a publisher to end a book contract if the author does something that is likely to seriously damage sales.
Morals clauses are common in traditional publishing. These days, when a social media post can damage a writer’s reputation (rightly or wrongly), most major publishing houses insist on having these clauses in their contracts. The clauses vary from publisher to publisher but their purpose is the same. Publishers want to prevent any activity or conduct that would create public outrage and diminish sales. The problem is that agents and authors see the clauses as dangerously subjective. Many in the Creative community are concerned that publishers will dump a project based on the publisher’s own subjective assessment of a writer’s conduct.
Celebrity chef Paula Deen is seen by many as the first author that caused publishers to seek this kind of protection. In 2013, Ms. Deen admitted to using racist language, and allowing racist, homophobic, anti-Semitic and sexist jokes in one of her restaurants. As a result, her publisher canceled a five-book contract. The #MeToo movement followed and revealed allegations of misconduct against many public figures and, as a result, more contracts were cancelled using similar morals clauses.
Today, many publishers of all sizes require morals clauses in all their contracts. Agents and attorneys are generally familiar with the variety of publisher’s clauses and see some as less problematic than others. Issues to be considered are the requirement to repay any advance money that authors already received. In other words, some publishers just want the right to end the deal in that moment and let authors keep money they’ve already received. Other publishers have clauses that demand all their money be paid back. This area of law will get more complicated if and when certain publishing giants buy and acquire their current competitors.
Clearly, for many reasons, it’s important to behave well. However, it’s also important to have an agent or attorney who is familiar with these contracts, clauses, and any caselaw interpreting them.