PEN America on “Morality Clauses”
As an organization of writers, editors, agents, translators, publishers, and devotees of literature dedicated to the celebration of the written word and defense of free expression, PEN America is concerned about the growing trend of publishing companies embedding “morality clauses” in book contracts.
Morality clauses are contract provisions that vary widely by publisher and by contract but are generally intended to permit publishers to cancel a book contract if the publisher determines its sales would be harmed if it becomes known that the author has engaged in or is accused of controversial speech or behavior, or is accused or convicted of illegal activity. Sometimes, these clauses include provisions that mandate an author repay the publishing company some or all of the advance payment they have already received. Such clauses can give wide latitude to publishers to determine the speech and conduct that merits invocation of these clauses. This level of ambiguity poses the risk of chilling writers’ speech on any controversial subject.
While the necessity of such clauses may be understandable where an author with a signed book contract is convicted of a crime or publicly admits to immoral behavior, PEN America is concerned that some clauses pave the way for publishers to cancel publication on the basis of speech that is controversial, offensive, or provocative, but legally protected. If writers are on notice that a provocative comment, quote, or social media post that stokes uproar may prompt the cancellation of a book contract, they may constrain their expression for fear of harming their careers. Morality clauses thus risk chilling speech and narrowing discourse among writers who fear a loss of livelihood based on their publisher’s response.
As an organization devoted to celebrating and defending the freedom to write, PEN America has serious concerns about measures that could penalize writers for their speech. While no writer is required to agree to a morality clause, the challenge of launching and sustaining a career as a writer dependent upon payments from publishers means that publishers have substantial negotiating leverage to secure the terms they seek. We recognize that there are situations in which it is appropriate for a publisher to cease publication based on an author’s actions, but overly broad and restrictive morality clauses may seriously dampen the free expression of writers—and limit the public’s ability to access their viewpoints.