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Are morality clauses the best way to deal with writers who breach public standards?


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A new legal phenomenon is arriving to the UK via the US, the so called 'morality clause' within publishing contracts. Historically, the moral behavior of writers has managed to stay separate from their ability to publish and sell their work.

For many this meant their personal indiscretions, from peccadillo to outright crime, have been subject to posthumous review rather than public scrutiny during their life. One such example from the modern English canon is Phillip Larkin, whose poetry and prose are essential reading, but had expressed blatantly racist and misogynistic views that were downplayed for many years.

Publishers are considering implementing morals clauses

A serviceable general legal definition for morality clauses (since they differ in each contract) is "a contractual provision that gives one contracting party the unilateral right to terminate the agreement in the event that such other party engages in reprehensible behavior or conduct that may negatively impact the public image of the contracting company." The emphasis is placed on corporate image and future profits, not the protection of public moral standards. It would be more honest to call them reputation or profit protection clauses. Regardless of the terminology, moral clauses have had a contentious history. 

They began to be used following the arrest in 1921 of comedian Roscoe "Fatty" Arbuckle in connection with rape and murder charges of a female guest at his party. The damage done to his contractual partners, Universal Studios, was enough for them to institute moral clauses to protect themselves in the future. This spread to other forms of 'talent' based contracts including athletes, newscasters, and advertising endorsers. However in the 1940s and 1950s moral clauses hit controversial ground with the movie studios using them to  fire ten Hollywood employees. The Hollywood Ten, as they were named, publicly denounced the anti-communist investigations of the McCarthy era as violations of their civil rights; using moral clauses as justification they were fired shortly after. 

Moral clauses have seemed to reestablish themselves today based on the original sin of "Fatty" Arbuckle, reemerging with the #MeToo movement. Today, concerns over the distinction between professional and private lives of talent are finding their way into publishing, with publishers moving towards morality clauses that write standards of conduct into contracts. Most recently the poet and novelist Sherman Alexie, and the novelist Junot Díaz have stepped away from public commitments as a result of accusations of sexual harassment. Another example outside of sexual harassment was found when Simon & Schuster pulled Milo Yiannopoulos's book deal when he made positive comments about pederasty. 

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While such examples seem against obvious and common principles of decency, a due sense of caution towards allowing publishers to interpret moral behavior is important. Beyond the political example of the Hollywood Ten, the changing and complex nature of common morality means such legal instruments can be abused. Returning to the 40s, when Gore Vidal published his seminal gay novel The City and the Pillar in 1948, an editor at his publishing company told him "You will never be forgiven for this book". Thankfully he was wrong, but not for a while because the New York Times refused to advertise the book, and Vidal was blacklisted from being reviewed in major newspapers and magazines for six years. Not a great record for an industry wishing to act as gatekeepers of morality. 

At this point, the question of reciprocity pushes its way forward: should companies be accountable to talent when the company breaches public norms? When CEO of Penguin international David Davidar is accused of sexual harassment and fired by Penguin in 2010, are authors entitled to recompense for being tarred by the company's scandal? Fashion companies such as Dior will rightly fire creative directors for their abhorrent views, but fail to hold themselves responsible for the more than 1,000 deaths caused when factory workers in Bangladesh were ordered back into a building that collapsed on them. To this day high fashion companies such as Dior refuse to open their supply chain to examination; privacy remains a privilege for company, not the employee. 

All these nuances become seemingly more complex with added legal instruments such as moral clauses. It may be easier to rely on the judgement and discernment of that rabble too often referred to as the 'target market', 'customer base', and 'consumer population'. Maybe readers of books, watchers of movies, and buyers of clothes—in other words people—can decide for themselves whether what they hear about an individual is enough to stop them buying their product. Public decency can be decided by a decent public. Perhaps companies should become more comfortable bearing the risk of competitive talent based industries rather than shifting it entirely on individuals. The price for a thriving and intellectually free literary and media culture would be better placed at the expense of corporate income, not at the expense of open culture. 

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