Say you’re a writer and your publisher asks you to sign a “morality clause” as part of your publishing contract. Should you? Should your publisher ask you to? Are they legal? If so, are morality clauses ethical?
Seems a fit question to ask in a blog about the ethics of writing, eh?
Not an easy question. Needs more context, right? A morals clause is often included in private and public contracts. It prohibits certain behavior in your private life, such as immoral behavior, sexual misconduct, or drug use. While their use is still uncommon in the writer’s world, they are popular in the entertainment industry. Contracts between actors and film studios sometimes include morality clauses designed to support the studio’s so-called public image. From that apt source, they seem to have spread to public figure contracts in the sports world. And of course, you can find morals clauses as part of divorce or marital dissolution cases. They take a stab at preventing unmarried cohabitation or overnight guests of the opposite sex while the children are present.
Morality clauses have been around ever since Universal Studios added them after Fatty Arbuckle was arrested on accusations of rape and murder in 1921. Recently, they are getting hot and heavy because of large sums paid or claimed in sexual harassment and assault cases in the entertainment sphere. The first morals clause for a professional athlete may have been Babe Ruth’s 1922 contract. “It is understood and agreed by and between the parties hereto that . . . the player shall at all times during the term of this contract and throughout the years 1922, 1923 and 1924 . . . refrain and abstain entirely from the use of intoxicating liquors and that he shall not during the training and playing season in each year stay up later than 1 o’clock A.M. on any day without the permission and consent of the Club’s manager, and it is understood and agreed that if at any time during the period of this contract, whether in the playing season or not, the player shall indulge in intoxicating liquors or be guilty of any action or misbehavior which may render him unfit to perform the services to be performed by him hereunder, the Club may cancel and terminate this contract and retain as the property of the Club, any sums of money withheld from the player’s salary as above provided.”
Babe Ruth’s morality clause prohibited excessive drinking, not his other off-the-field fun time. Colonel Jake Ruppert, then owner of the Yankees, hoped to curtail the Babe’s notorious womanizing. But the Babe would have none of it. “I’ll promise to go easier on drinking, and to get to bed earlier, but not for you, fifty thousand dollars, or two-hundred and fifty thousand dollars, will I give up women. They’re too much fun.”
But this blog focuses on writers, not actors or athletes. Fast forward from the 1920s to 2019. The NY Times entered the fray on January 4, 2019. “In reality, [writers and publishers] interests are at odds. Publishers are marketers. They don’t like scandals that might threaten their bottom line—or the bottom lines of the multinational media conglomerates of which most form a small part. Authors are people, often flawed. Sometimes they behave badly. How, for instance, should publishers deal with the #MeToo era, when accusations of sexual impropriety can lead to books being pulled from shelves and syllabuses, as happened last year with the novelists Junot Díaz and Sherman Alexie?”
Writers often deal with publishers through literary agents. Often it is the agent, not the writer, who negotiates the terms of a publishing contract. Understandably, agents oppose morality clauses. They focus on things like “public condemnation,” which is vague, hard to prove, and scary. The NY Times article included a satirical article from a writer confessing sins to her publisher. “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.” The moral of this retort might be never pick a fight with a writer about morals. They write back.
An ethical question is buried in morality clauses. Most writers self-censor what they write. The question is should they also agree to censor in the particular way publishers want. The morality clause gives publishers censoring rights by contract. That’s legal. But is it ethical? The clause is only invoked when the publisher decides the text is immoral, scandalous, or likely to negatively affect the publisher’s bottom line. Publishers should ask. Writers should decline.
I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.
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 Pinguelo, Fernando M.; Cedrone, Timothy D. (2009). “Morals? Who Cares About Morals? An Examination Of Morals Clauses In Talent Contracts And What Talent Needs To Know” (PDF). Seton Hall Journal of Sports and Entertainment Law. Seton Hall School of Law. 19 (2). Retrieved November 22, 2013
 Ibid. “Must Writers Be Moral? Their Contracts May Require It.” Judith Shulevitz. Contributing Opinion Writer