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 sinema 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