What to Do About Morals?

I will often get questions about the “moral turpitude” clause found in many of the contracts we receive. It’s not a description often heard in daily conversation. “Have you turpituded today?”

Many faith-based publishers have had a “moral turpitude” clause in their contracts for a long time. Moral turpitude is well defined in this post on Wikipedia. It is understood in the legal community as actions or activities that can get you fired from your job, deported if you are only in this country on a visa, or have your contract cancelled if you are an author.

Here is a typical version of the clause found in many of the contracts our agency negotiates:

MORAL TURPITUDE. In the event Author is publicly accused of an act of moral turpitude (substantiated by the preponderance of evidence, a court decision, or Author’s own admission), a violation of any Federal law or any other conduct which subjects or could be reasonably anticipated to subject Author or Publisher to public ridicule, contempt, scorn, hatred or censure, or could materially diminish the potential sales of the Work, Publisher will have the right to terminate this Agreement upon written notice to Author of the public disclosure of such conduct or alleged conduct. In the event of such termination of this Agreement, Publisher will have the right to demand from Author and receive payment within thirty (30) days of the demand, a sum equal to all advances paid to Author under terms of this Agreement that have not been recouped by Publisher prior to said termination. Upon such payment all rights granted to Publisher in the Work will terminate and vest exclusively in Author, provided that Publisher will have the right to sell or otherwise dispose of all remaining copies of the Work in any manner Publisher deems appropriate.

I do not begrudge a publisher for including this clause in a contract. It makes perfect sense. There any many cases, and a few currently pending, where a very public Christian figure has had to step down for immoral behavior. When that happens, the publisher is left holding a bag full of books and no place to sell them. (Conversely, a few agents have jokingly asked why there isn’t a moral turpitude clause that applies the same standards for the publisher!)

Recently, we did a contract with two co-authors. This moral turpitude clause had to be carefully written so that if one of the authors went off the rails the co-author would not be held liable for those actions.

The bottom line is “Don’t do bad things!” and then you won’t ever have to worry about a clause like this being misinterpreted or misapplied.

Does having such a clause create extra caution on the part of an author? I don’t think you can keep someone from doing bad things just because there is a penalty clause in a contract. It is like the issue of trying to legislate morality. I edited a book by that title many years ago: Legislating Morality: Is it Wise? Is it Legal? Is it Possible? by Norm Geisler and Frank Turek.

A professional basketball (NBA) player will still shout at a referee despite the fact they will get fined if they receive a technical foul. It doesn’t stop them. However, the threat of being ejected for their second technical does noticeably keep their tempers at bay.

The simple answer is that no I don’t think it will change an author’s behavior. But it will save publishers a penny or two some day.

Some people think a clause like this is terrible. An invasion of privacy and intrusive into the life of the author. Back in 2011 Ursula LeGuin, author of some legendary science fiction and fantasy, posted a riff satirizing the morality clause that had recently begun appearing in the HarperCollins contract. Read her satirical article called “12. A Riff on the Harper Contract” for a example of that thinking.

In the last ten years since I first wrote on this topic here, we’ve seen very public moral failures by any number of well-known people. (Athletes like Lance Armstrong, for example. Plus a number of well-known faith leaders.) The #MeToo movement brought more significant stories to light. While some may not have had books withdrawn, many have had corporate sponsorships removed.

I’m going to risk saying it again. If you dislike the morality clause in your contract, don’t do bad things and it won’t be an issue. If you don’t like the warranty or indemnifcation clauses in your contract, don’t make it an issue by writing bad things!

15 Responses to What to Do About Morals?

  1. Andrew Budek-Schmeisser November 8, 2021 at 5:18 am #

    In a world that’s going mad
    dark forces are far bolder,
    and things used in defining bad
    are in the eye of the beholder.
    If porn in classrooms ain’t OK,
    and at school board meetings you resist,
    in the view, now, of the DOJ
    you’re a domestic terrorist.
    Keep your message pale and bland,
    keep opinions on the shelf;
    times have changed, you understand,
    and you can badly hurt yourself
    by speaking from the depth of soul
    against culture that is in control.

    • Andra M. November 8, 2021 at 6:17 am #

      I was about to say something similar, too. What was moral yesterday is immoral today, and it’s only going to get worse from here.

  2. Cole Powell November 8, 2021 at 6:14 am #

    Andrew, I was about to express the same sentiment, though not as cleverly poetic, of course! My concern with this type of clause would be the shifting definition of “morality” in today’s culture, and, yes, even in Christianity. I don’t think it’s as simple as “don’t do bad things” any more. An author may do or say something Biblically moral, but if society has deemed it immoral, that clause seems to give the publisher the authority to put that author out of job without leaving a legal recourse for the author. I’m reminded of Isaiah talking of those “who call evil good and good evil.”

  3. Tiffany Price November 8, 2021 at 6:28 am #

    Hi Steve,
    I remember sitting in one of your courses on contracts and what to look for several years ago at the Blue Ridge Mountain Christian Writers Conference. I’m not sure if this specific topic was brought to our attention, but I certainly remember learning many important things to be aware of while reviewing a contract.

    I personally believe this clause is a critical one; we are called to a higher moral standard, and that much is evidenced in the Bible, but as public figures in the industry, we should be held accountable for our actions. As always, thanks for sharing this insight!

  4. Wendy November 8, 2021 at 8:23 am #

    My mind is swirling… “or alleged conduct.” I apologize if what I’m about to say comes off like a pitch–it isn’t. This subject is related to false accusations I endured because I chose to do right. Corrupt people and institutions come against those who choose to do right.

    I’m a healthcare whistleblower. Whistleblowers speak up to protect the public. When my supervisor gave orders that endangered patient lives, I said I was afraid someone would be injured or die. The things I endured as a result of caring about the safety of my patients are things no one should be subjected to. In the midst of setups and bullying, the hospital falsely accused me of doing wrong, when I was actually doing exactly what I was supposed to be doing. When someone says right is wrong, what do you do? You keep doing right. They fired me on bogus charges after nearly five months of trying to drive me out. They ruined my career in an effort to discredit me and cover up the fact that they were knowingly and needlessly endangering patient lives. Through a series of events, I eventually made it to trial in a wrongful termination case. And I won. Unanimously. On all six counts. The hospital was found guilty of malice towards me. I was vindicated, but the damage they did to my career, in the meantime, was irreparable.

    Speaking up for right makes us a target in this corrupt world. Should we then be silent? And who’s to stop someone from making a false accusation against us? The “moral turpitude” clause is unjust–it is geared 100% in favor of the publisher, and 100% against the author, because, as others have noted, we live in a world where right is called wrong, and wrong is called right.

    • Andra M November 8, 2021 at 7:15 pm #

      Thanks for sharing your story and your perspective. It does give one food for thought before signing such an agreement.

      • Wendy November 9, 2021 at 8:01 am #

        You’re welcome, Andra.

  5. Rachelle L Gardner November 8, 2021 at 9:41 am #

    Good post, Steve. Things get sticky when “doing bad things” is not clear-cut. For some publishers, an author using social media to express support for their own LGBTQ+ child would be cause for canceling a contract under the moral turpitude clause. In fact, it’s not only about what an author does but often it’s about what they publicly say they think or believe that can get them into trouble. So it’s worth considering carefully, on an individual basis for each author.

    • Elliott Slaughter November 8, 2021 at 9:54 am #

      I agree. I think it’s eminently reasonable to put limits on behavior. That’s just a matter of maintaining good boundaries. Where I’d be concerned is in the lack of clarity in exactly what constitutes “doing bad things”. This could even change over time, either with changes in public sentiment, or with changes in leadership at the publisher. So it’s not even necessarily the case that you could stay in the clear by having an upfront discussion with your publisher, because the rules could change later in the game.

      Having said that, I get why they do it, and why they might not want to put a hard line on what “bad” is. It’s just a hard situation all around.

  6. Kristen Joy Wilks November 8, 2021 at 9:55 am #

    A very interesting topic. Things certainly can get confusing. I think that it is interesting how folks want to talk about the exceptions, when for the most part, this part of the contract must come into play when a well-know figure harms others in a public way. Of course publishers would not want to be part of a situation that was morally questionable. Exceptions will always occur, but I think what our actions need to be remains the same, regardless of publishing contracts and their wording. We commit to honor the Lord in what we do and how we do it.

  7. Carol Ashby November 8, 2021 at 10:09 am #

    Having “any other conduct which subjects or could be reasonably anticipated to subject Author or Publisher to public ridicule, contempt, scorn, hatred or censure” be the basis for triggering the moral turpitude clause puts every author who recognizes God as sovereign and Biblical standards for living at risk.

    You don’t have to look far to see that simply being a Christian leads to ridicule, contempt, scorn, censure, and even hatred among the liberal media and those who want to believe what they publish.

    As more and more of the Christian publishers are swallowed up by larger secular entities, this becomes a more serious concern.

  8. Steve Laube November 8, 2021 at 12:02 pm #

    To all,

    Seems I’ve waded into what is being perceived as murky waters.

    What must be understood first is this. With or without a “moral turpitude” clause, any publisher can cancel the existing book contract for any reason. It is in their power to do so. And has always been that way. They simply declare a book no longer in publication (out-of-print) and at some point all the publication rights revert to the author.

    In my opinion, the purpose of the moral turpitude clause is intended to give the publisher protections against a lawsuit by the author for terminating the contract “without cause.”

    Where it gets messy is if the contract is for multiple books and not all have been written or published yet. This clause could claw back monies left unpaid to the author. It can also be a protection if the author disagrees with the decision to unpublish or “cancel” publication of a book and sues the publisher. Of course if the author is willing to pay the legal fees for such a suit the amount of recovery for winning would have to be significant.

    Of course it gets messy in interpreting what constitutes “moral” and “turpitude.” Publishers have long controlled this part of the process, often for good reason. Unfortunately there are situations on both sides of the political and theological spectrum that have drawn various lines depending on the nature of the organization drawing the line.

    • Steve Laube November 8, 2021 at 12:07 pm #

      Also…
      Note that the moral turpitude clause did not come from the secular publishers. This has been a part of Christian publisher contracts since forever.

      It was when the clause started appearing in secular contracts that many agents and authors began to object. Basically saying, “I can do whatever I want and you cannot contractually control my behavior.”

      But in Christian circles it was originally placed as a protection against the celebrity pastor, writer, teacher, etc who “went off the rails.”

      So, please don’t see this as something “new” added by secular publishers to “cancel” Christians. I suppose it can be read that way, but it was not a part of its origins.

      • Andra M. November 8, 2021 at 7:19 pm #

        Thanks for the clarification, Steve. I think in a clause like that—especially from a Christian publisher—it needs more concrete definitions of moral behavior, such as adding something to the effect of, “moral behavior consistent with scripture.”

        • Steve Laube November 8, 2021 at 7:39 pm #

          Andra,

          The problem is that defining exactly what “moral behavior consistent with scripture” would be nearly impossible to do…

          Think of prohibition…at that time alcohol was illegal…and then it wasn’t anymore. But the Bible never prohibited it as being illegal. It speaks against drunkenness. Thus in some circles any consumption is wrong but in others it is perfectly okay.

          Or dancing. In some circles that activity would be considered immoral. But in other it is celebrated and even becomes a part of a church service.

          Or smoking. Growing up I knew of a church deacon who snuck outside to a corner of the churchyard to smoke. Would that be defined as “moral behavior defined by scripture”? Probably not, but it does raise the specter doesn’t it? D.L. Moody disapproved of Charles Spurgeon smoking cigars. And C.S. Lewis smoke a pipe!

          Therefore “contractual” definitions matter.

          The moral turpitude clause is not there to define what is moral and what isn’t but is carefully crafted to be related to behavior that could be deleterious to the sales of the books. The intent is to be related to the “obvious” moral failures.

          And it would be rare for it to be used as a contractual weapon for anything other than the “obvious” moral failures.

          I go back to my earlier comment that a publisher can terminate the publication of a book at any time for any reason. The issue becomes an issue of money…what is owed to the author or is contractually owed BY the author? That is the ultimate issue.

          If you want to see how a publisher can cancel a book contract read about the Milo Yiannopoulos case in February 2017 where his contract was canceled before publication by his publisher after old social media posts surfaced that were quite offensive. Whether one agrees with Mr. Yiannopoulos or agrees with Simon & Schuster is immaterial in this discussion. Instead, it is a case where a publisher cancels a contract and had as their basis a moral conflict. And this was a contract WITHOUT a morality clause. Below is the link to the filing of Yiannopoulos’ lawsuit against Simon & Schuster. Starting on page 40 (of 83) is the actual book contract.
          https://www.courthousenews.com/wp-content/uploads/2017/07/milo-yiannopoulos.pdf
          The publisher canceled based on the clause that the author must submit an “Acceptable” manuscript. The publisher declared the author did not do so.

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