Writers, morality and the #MeToo fallout — Revisit

I’m down with a bug this morning. So I went looking for a blast from the past and came across this post which is a year old. In light of what’s been going on with RWA, it seemed timely to remind the writers out there that our profession is full of minefields. We have those who would police us because of our sex or sexual orientation, or race or ethnic background, or because of our politics. What we’re seeing in the RWA right now is one example. Another is shown in the following post. We should be on the lookout for both. — ASG

Writers, morality and the #MeToo fallout

I’ve been pondering whether to write this post for the better part of a week. I’d been hearing rumbling from traditionally published authors about a contract clause that is as evil–their words and I agree–as the rights grabbing clauses that have become common in publishing contracts. But then, several days ago, an op-ed piece appeared in the NYT and I knew what I needed to write. The clause? A morality clause. Yes, you read that right. More and more traditional publishers are now including a morality clause in their contracts.

Judith Shulevitz penned “Must Writers Be Moral? Their Contracts May Require It” last week for the Times. The basic premise is that a growing number of publishers, book publishers are well as newspaper and magazine publishers, are including morality clauses in their contracts. On the face of it, such clauses don’t appear so onerous. Except….

There’s always an exception, isn’t there?

The clause itself should send shivers down our spines.

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.”

Even though Shulevitz “guesses” that’s reasonable, I beg to differ. This clause can be used if a tweet or an image from years ago–decades ago–comes to light that the publisher believes is “inconsistent” with the author’s reputation. Then there’s the question of who determines what the reputation happens to be. Then there’s the whole question of what”sustained, widespread public condemnation. . . that materially diminishes the sales potential of the work” means.

With the way publishers are trying to hold onto a work for the life of the copyright, this should scare all of us. It basically means as long as they continue to hold your rights, you have to worry. “Past or future conduct” is limited. You could suddenly find yourself in a Kevin Hart situation like the comic had with the Academy Awards this year. Hell, you could find yourself in an Ellen situation where she defended Hart this past week and championed him being host for the awards show, only to find herself under attack from the perpetually butt-hurt for accepting his apology for jokes Hart made years ago.

That is the sort of condemnation a publisher could use to not only cancel your contract but demand your advance back.

Yes, you read that right.

But those of you who write for magazines are facing even worse morality clauses. Although, to be honest, I expect the Big Five and other publishers to follow. After all, they do seem to move in packs when it comes to how they treat their writers.

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.

Read that again.

You don’t have to do anything wrong. All you have to do is become the target of the mob because you suffer from wrong think. Now think about the attacks people associated with Sad Puppies have undergone. If such a contract clause had been in effect in their contracts, and if the publishers had been brave enough to go up against the ILOH, Larry, Brad, Sarah and others would have found themselves out on their ears. Of course, the mob of angry fans would have been something to watch as they marched on the bastions of traditional publishing.

The thing is, we shouldn’t be surprised by this clause being found in our contracts. in 2011, Harper Collins included such a clause in a contract sent to Ursula LeGuin. Ms. LeGuin took exception to the clause and took to her blog. (You’ll need to scroll down a bit to find her letter to Rupert Murdoch.)

“It was nothing really materially damaging, only just the money and I.D. I stole from the old man with the walker and some things I said about some schoolgirls with big tits.” Please, the letter went on, don’t “make me pay back the money because I can’t because I already had to give most of it to some stupid lawyer who said I had defaulted on a loan and was behind on my child support, which is just a lie. That stupid brat was never mine.”

As the NYT piece notes, terms like “public condemnation” are so vague we, as authors, should run from the contract without hesitation. Such clauses are an out for publishers. It gives them reason to cancel a contract without real cause. Your sales can be meeting the contractual level to keep your book in print but, for whatever reason, they want to be done with you. Then you write a blog post that gets some negative Twitter attention. Or you say something on Twitter that has a handful of people reacting negatively. That is enough, under such vague language, for the publisher to cancel the contract.

Jeannie Suk Gersen, a Harvard Law professor and regular contributor to The New Yorker, wouldn’t sign a contract containing such a morality clause. “No person who is engaged in creative expressive activity should be signing one of these,” she told Shulevitz.

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.”

Anyone remember the anti-Sad Puppy crowd calling for Baen to fire the ILOH or Brad or Sarah? Now think about what could have happened had they been subject to such a contract clause.

And, if Conde Nast is doing it now, how long before book publishers start including such language–assuming a court doesn’t strike it down before then.

I hear some of you telling me I’m overreacting. After all, contracts can be negotiated. That means you can negotiate this clause. Right? Wrong. At least not unless you have enough clout, a big enough name, to make the publisher’s blink.

Masha Gessen, like Gersen, received a contract with one of those damned clauses in it. She also refused to sign. Here agent, as well as Gersen’s, managed to negotiate the language of the contract into something a bit more palatable. In Gessen’s case, the contract clause was amended to state that the morality clause can’t be invoked as the result of her professional work, important since she often writes about controversial subjects. Conde Nast had to acknowledge that she had “expressed controversial views” and that “professional work” included “public events or posts on social media in addition to her writing.”

But Gessen admitted her case, like Gersen’s, was the exception and not the rule. She knows she was able to stand up to Conde Nast because she “has clout” and she worries about lesser known writers who don’t.

The problem with letting publishers back out of contracts with noncelebrity, nonreligious, non-children’s book authors on the grounds of immorality is that immorality is a slippery concept. Publishers have little incentive to clarify what they mean by it, and the public is fickle in what it takes umbrage at.

Gawd almighty, ain’t that the truth, especially that last part?

I don’t know about you, but I want more than a nebulous, “you must be good, and we’ll decide what that means–but we don’t have to tell you–or we will cancel your contract and demand our money back.”

Here is a key:

Times change; norms change with them. Morality clauses hand the power to censor to publishers, not the government, so they don’t violate the constitutional right to free speech. But that power is still dangerous.

It gives the power of censorship to the publishers. Think about it. When they say they want to be the gatekeepers, it isn’t the gatekeepers of quality. It is the gatekeepers of point of view on issues, on what is the right way to think about things, etc. They want to “educate” us to be “better”.

Riiiight.

While I disagree with the author’s comment that this clause will have a more chilling effect on women and minority authors than it does on white males–I especially disagree in the climate of the #MeToo movement–she is right that these clauses are chilling.

This is yet another reason why you MUST read any contract a publisher or agent sends you for your work. Not only that, you MUST have an IP attorney look it over. Otherwise, I suggest you put your advance in an escrow or other interest bearing account and not touch it for the life of your contract. If you don’t and if at some point in the future, you’d better be prepared to return that advance, probably with interest, to the publisher if you were foolish enough to do or say anything that someone might have taken offense to.

37 comments

  1. But the sort of people who would not stop trying to work with a traditional publishing firm after it adds woke morality clauses are all hate filled monsters who we must not tolerate in society, or else it will become a hellscape like in Batteries Not Included.

      1. The liberal intellectuals who don’t simply tell the SJW mob to go f*^$ themselves are hyper-conservative alt right neo-nazis. Proposing that these Neo-Nazis are going to try to finish the holocaust unless they are stopped is too much like mainstream political discourse. Much better to make an absurd comparison to a sci-fi dystopian movie. But I could not think of one obviously absurd enough, so I picked a movie that wasn’t a dystopia.

        1. Look, I don’t know what set you off, but leave the politics out of it. I’m sick and not in the mood to deal with it.

          1. Didn’t mean to be political, meant only to be sarcastic.

            Apologies. Dropping.

            Feel free to delete if it would improve things.

  2. I don’t have an issue with the idea of a publisher being able to cancel a contract because someone has become a liability– BUT it should be a case where the publisher has to pay the person for ending the contract.

    A simple protection– not “give us our money back,” but “you keep that money, and here’s the we’re breaking the contract payout.”

    1. Absolutely. Unless the publisher can prove misrepresentation, fraud, etc., then there should be remuneration to the author.

    2. And frankly, copyright should revert to the author–since clearly they’re too controversial for the publisher to work with. Therefore, they should not also be able to continue profiting from their previous works. If they’re gonna punish someone for–potentially–something stupid they said on Twitter when they were a teenager, then they don’t get to keep making money off that person.

    3. Especially given that, on the face of it, astroturfing attacks on an author you want to get rid of is perfectly feasible.

    4. Yeah. The idea that you pay them for their decision to breach the contract starts pushing into “unconscionable adhesion clause.”

  3. Oh, darn. The link to LeGuin’s blog doesn’t work so I can’t read the whole thing. Still the excerpts are wonderful and make me feel insecure as a writer. 😉

    And of course, in a sense, publishers are always censors in the moment they choose not to publish someone and it may well be for ideological reasons. It’s the take-back-sies in response to some noise that’s the problem. Well, that and the sin-seekers and inquisitionists who research your childhood for excuses who are making the noise.

  4. The thing is, most of these online lynch mobs are *tiny*. You might get what, a few dozen people mad at you? A few hundred? So what? They wield power disproportionate to their size because people are afraid of going against the herd. But all most of them can do is howl.

    1. Yep. This is why I keep shaking my head and wondering why big companies are so scared of the “vocal minority”, many of whom don’t actually buy what the company sells.

    2. These companies still haven’t clued into the fact that a.) these are actually a very small group, and b.) don’t buy the product.

      Publishers are even worse–I’m not sure that they don’t KNOW these are tiny groups, but they don’t care.

      1. “These companies still haven’t clued into the fact that a.) these are actually a very small group, and b.) don’t buy the product.”

        Sara, two words: Memories Pizza.

        You can also look at labor unions, Jesse Jackson, or community organizer Barak Obama and the Chicago mortgage banks.

        In each case, as long as that business had a physical location, bored wokescolds / professional protesters could show up, obstruct the actual customers and employees of the business, tarnish the business’ reputation for everyone who passed by / saw it on the news, and otherwise cost the business a lot of money and goodwill.

        And if the businesses had them arrested for trespassing? Now they have actual examples of the business “oppressing minorities” for their allies in the media, the legal headaches, etc. And that assumes that the mayor/chief of police will do it.

        They can avoid all that by throwing one person under the bus? Done. And that assumes the business/CEO doesn’t want an excuse to show it’s woke too.

        They may be small, but they have an outsize megaphone, and enough allies in our legal system to give them outsize clout. And they have enough known success with it that companies don’t want to risk it.

        Oh, and virtual businesses? All that means is that the capability for obstruction moves one level down, to the infrastructure and hosting level, including banking / payment processing. I mean, how much does the RWA represent of their hosting company’s business? Cheaper to drop them.

  5. Not only are the lynch mobs tiny, the lynch mobs are dumb. They’re ill-informed, they’re poor thinkers about what little facts they do possess, and they are dishonest in their claims. Courtney Milan and her minions have amply demonstrated that.

    I agree that everyone of every race and both sexes are in danger with such clauses. Someone posted here that Milan & Minions were angry that a writer was being a disabled black woman the wrong way. Par for the course with that ilk. And of course, your average white guy is evil by default. With a twirly mustache of evil, one assumes.

    The clause is just icing on the cake. Here are my amendments and/or poison pills because I’m just cheeky today:

    1 – The “morality” violation must be consistent with what the Bible says is immoral. These people have their own third-rate religion where there is neither forgiveness nor redemption, but they claim to be tolerant of other cultures, so let them tolerate my religion. After all, it brought them civilization as they know it.

    2 – The publisher and editor must be able to prove that no one on their staff is guilty of immorality themselves, particularly whatever immorality I’m being accused of. We know the “reporter” digging up dirt on Carson King would fail this requirement, and Tor’s Irene Gallo spoke false witness against authors she accused of being Nazis. I want to see purity reports indicating the publisher’s fitness to cast the first stone, before I permit them to stand in judgement over me.

    3 – Twitter and Facebook mobs are inadmissible as evidence and witnesses, as they are stupid, deceitful, and easily led. Rules of testimony should be consistent with the U.S. Constitution: no hearsay, no fruit of the poisoned tree, the accused shall face the accuser, and the accuser has the burden of proof, and so forth. Oh, and of course this leaves out “hate speech,” as it is protected by default, which any sixth grader could have worked that out in 30 seconds flat.

    4 – There has to be an actual act. While Samuel Delaney apparently loves him some NAMBLA, as far as I know he hasn’t acted on this perversion. But Marion Zimmer Bradley: drop her like she’s hot.

    5 – If the accusation is proved to be false based on the above, let it be that whatever punishment would have been meted out to me, be meted out to the accuser: If I were going to lose $$$ money from the contract, the accuser must pay me $$$ money in the amount I would have lost. That’s Old Testament justice, without the smiting. Which is probably just as well. Bonus is to have the publisher double the advance, to teach them not to jump on mob wagons.

    1. Eh. On that last bit, I would want the accuser proven wrong to pay only if they had acted with deliberate intent to harm or with willful negligence.

      In the event that they were simply misguided, I would only want a public “As it turned out, I was wrong.”

    2. Pity. I actually rather enjoyed Milan’s stuff, which was good so far as bodice-rippers go. But I doubt I’ll be buying her stuff anymore if she’s leading an outrage mob.

      1. I know. I’d enjoyed the few things by her I’d read. I’d also supported her and applauded her championing of author’s rights in the plagiarism fight. But this ended it for me.

        1. I haven’t been following the whole kerfluffle, but if I understand what I’ve heard right: she’s leading a mob against someone for something they wrote a couple of DECADES ago? That she has decided is racist.

          1. We infer that she is leading a mob, mainly because we don’t tend to draw these many idiots independently deciding to come here and be annoying.

            She had served on a RWA ethics board.

            She was reported for allegedly harassing an editor and a writer. Allegedly twitter mobbing for a) not having published enough writers of color, despite the business in question not publishing anyone yet b) a twenty year old book by the writer.

            (Being provided a case that, based on the genetics, their argument for anti-Chinese racism was bullshit, they apparently moved on to complaints about different book’s depiction of the Salish people. Some academic from a Southwest tribe is upset about a Northwest population being depicted as fundamentally different (perhaps due to environment) from that Southwest tribal population.)

            RWA did not immediately consult a lawyer, their process recommended disciplining Milan, but the twitter mob has apparently gotten this version of the RWA board to back down and punt to the next board.

            The level of idiots we had show up here with weak arguments in favor of Milan is a case that Milan is not carefully litigating her side of this in an ethical way.

            It may be going too far to suggest that Milan has gained her understanding of a lawyer’s professional ethics from the example of a certain 1973 Yale law graduate.

            1. Aha. That explains why the new president of the RWA–who sanctioned Milan because of an ethics complaint (which is how the sentence more or less read, so it wasn’t clear if the complaint was against HER, or if she had lodged the complaint and was being punished for it because it was unethical/wrong/inconvenient/whatever) is ignoring the calls for him to step down.

              I see in the update Amanda linked that Nora Roberts has joined in on Milan’s side–which unfortunately lends a TON of weight to that nasty little mob, in that case, because Roberts is one of the, if not THE, heavy hitter in the romance writing world, surely?

              Ugh. Internecine fighting of petty, petty people.

            2. Bob, chill and reconsider your “all the idiots” comment. Yes, we had a very few show up and dispute what was being said. But the vast majority of our commenters have been anything but “idiots”. Don’t like what they say, then debate the issue. But stop with the name calling.

              1. Yeah, I should found the time to make a better word choice. If the qualities of the arguments are really important to a reader understanding, the archives are there. If they were a little important, I could have summarized. If they are not important, I could have found a more neutral wording.

                Three different handles touting weak pro-Milan arguments is unusual for here. A similar pattern to what we saw with Sad Puppies, where there probably was some outsider talking up the discussion. I don’t recall recall seeing so many new handles with arguments not prepared for here on the other controversies covered here. Those other controversies probably did not have twitter mobs pointed this way.

                We also had a bunch of new handles making arguments against Milan. One I recall disagreeing with, but they presented a solid enough counterargument. Another one was interesting from an outside coordinated discussion angle, Stefen’s comment about Kozinski. Lots of curious choice of details.

                Hmm. I’m going to have to downgrade my confidence that I’ve figured this situation out.

                If one explanation is correct, I’ve badly misjudged those three handles.

                I would like to apologize to them and to everyone else for calling them idiots. I was wrong.

                1. Thank you. Where your comment hit me, and why I responded as I did, was that those three comments were small in number compared to the other comments from new visitors to the blog. I want to make sure those others know they are welcome here. Heck, the three are as well, as long as they are willing to stand up for their arguments and debate them.

                  1. Thank you for bringing the problem to my attention.

                    I’ve been letting problems managing my own headspace hurt the quality of my writing. If I don’t fix my issues when they spill out over other people, I will ultimately make myself very miserable.

    3. IIRC, there’s a section in the Bible that states restitution must be seven-fold. Publisher pays you back seven times what you initially paid, whatever the value was measured in..

  6. Sadly this is doesn’t surprise me at all. My friend heard from her agent that publishers are so desperate to avoid scandal that one particular publisher has stopped buying Young Adult all together because the drama in the YA Twitterverse is career killing. It’s shocking how destructive a small vocal mob can be.

  7. Frederik Pohl, in an essay about the process of getting a novel published, was at pains to emphasize two all-important things:

    1. Everything in a contract, including the names of the participants, and the date at the top, is negotiable.

    2. The way to negotiate a contract is to assume that you and the wonderful people who’ve agreed to publish your book will drop dead tomorrow morning, and your heirs and theirs will hate each other’s guts.

    Never, ever sign a contract without reading and understanding every last thing in it. Never, ever allow the party sitting across the table to say “Oh, you know we wouldn’t use it like that!” about some contractual provision. And never, ever allow a clause filled with terms like “reasonable” and “appropriate,” that could be interpreted to your detriment, to remain in a contract. Remember those mutually-detesting heirs.

  8. I just said this to Bob above but I’m going to say it to everyone. If you don’t agree with something someone says, debate the issue. Don’t call names just because you don’t agree with their position. This goes for all of us. I’m tired. I’m cranky and I’m fighting a bug. Don’t make me fight you guys as well because it is easier to stoop to calling names than to frame a cogent debate on a topic.

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