Who are the groups subjected to the most public vitriol for their published work?
Judith Shulevitz at the Times points out that publishers are starting to add morality clauses to their contracts.
This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.
Here’s one problem with that: not all strident tweeters are reasonable. We wouldn’t want Adrian Harrop having a veto over what gets published, for instance.
Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”
It’s not that a company should have to keep on staff a murderer or rapist, she added. But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”
Twitter being what it is. Would we want Jordan Peterson shutting us down? He’s suing those university inquisitors who said hostile things about him in their meeting with Lindsay Shepherd, after all.
Masha Gessen, another New Yorker writer, also said she wouldn’t sign her new contract, at least not as it was originally worded. Ms. Gessen, a Russian-American journalist who won the 2017 National Book Award for “The Future Is History,” about the return of totalitarianism in post-Communist Russia, has spent her career challenging prevailing nostrums.
Last year, as prominent men fell like bowling pins after being accused of sexual misconduct, Ms. Gessen published columns on the New Yorker website describing the #MeToo movement as an out-of-control “moral panic” bent on policing sexual behavior by mob justice. Needless to say, many readers did not agree.
“I’m extremely uncomfortable with it,” Ms. Gessen said about the contract, “because I have in the past been vilified on social media.” Having once been fired from a job as the director of Radio Liberty in Russia after what she called a disinformation campaign, she added, “I know what it’s like to lose institutional support when you most need it.”
It’s not as if disinformation campaigns are unknown to Twitter and Facebook.
Over the past four years, I’ve published articles criticizing the concept of safe spaces and deploring the lack of due process in campus rape hearings. I’ve been called transphobic for an essay I wrote in 2016 about the tension between transgender rights and the right to privacy, and I’m still being called that. If I’d had a book contract with a morality clause when I wrote those, I might have thought twice before indulging my fondness for picking fights.
It’s remarkably easy to get called (and labeled and forever convicted as) transphobic.
After our conversation, Ms. Gersen sent me an email pointing out a possible unintended consequence of the Condé Nast clause. Who are the groups subjected to the most public vitriol for their published work, she asked? Who is most viciously trolled? Women and members of minorities. “That is one of the realities of publishing while a woman or minority in this age,” she wrote. “The clause is perversely posing more career risk to women and minorities than to white males.”
Funny how that works.
Well, hey, if you have the bargaining power to object to such a clause, sure. People whose job it is to express opinions publicly, or who make decisions that are likely to attract public attention and disapproval should rightly be concerned about being targeted and make it at least somewhat painful for their publisher/employer/institution to dump them.
If I were a publisher/employer/institution though, I’m not so sure I’d be willing to relinquish such a provision. We’ve seen how men like Weinstein and O’Reilly were able to negotiate provisions that basically required nothing short of a court judgment to fire them for sexual harassment.
Of course, most people in the U.S. don’t even have employment contracts, and can be terminated at will
@Screechy Monkey #1
Weinstein is a good counter-example, but it’s in the organisation’s “sole judgement” that they “can” (not “must”) terminate the contract. With a lot of leeway, I would not be surprised if this sort of clause ended up being used against people who don’t have much power (e.g. women, people of color, people in poverty, LGBT+, basically any oppressed person trying to stand up for themselves) more than against those that do (i.e. rich white men with lawyers).
And as you point out, the people who already have power are the ones in the best position to negotiate away the clause to begin with.
Wienstein, O’Reilley and similar used their influence to give themselves clauses that protected them; rather the opposite of a clause that can be used as a weapon against them as in the case of this Conde Nast contract.
Holms,
That’s semantics. You’re still ultimately talking about contract rights, and specifically the circumstances under which you can be fired. The average American can be fired for any reason other than the specific few that are barred by law (e.g. because of race, gender, religion, and — depending on your state — sexual orientation, etc.). People with power are able to negotiate better deals, in which certain conditions have to be met in order for them to be fired “with cause.” (Even then, you can usually always be fired without cause, it’s just that you would then be entitled to compensation.)
And in fact, the article expressly links the history of morality clauses to sexual misconduct:
So do you think film producers should have to follow through on a star’s multi-picture deal if he’s been credibly accused (but not yet convicted) of rape? If HBO wanted to invoke a morals clause to get out of a deal with Louis C.K., is that a bad thing?
Ophelia isn’t wrong to point out that these things — who is asked to sign them, who is able to resist, and who they get enforced against — is about power, and as usual women (especially those who stand up for other women) have less power and are more likely to have that power used against them. As the article points out:
So yeah, some women can push back against this, and others can’t. One thing noted in the article, which may explain why publishers have added this provision, is that Milo Yiannopolous sued his publisher for yanking his book. Milo’s suit failed, but unsurprisingly many publishers want to protect themselves from future suits by less incompetent and douchey plaintiffs.
The right that publishers are asking for here — and, depending on the wording of their prior contracts, it may not even really be a NEW right, just a clarification of rights they had all along — is not inherently bad or inherently good.
If you want publishers to be free to dump Milo’s book because he got caught doing Hitler salutes with white supremacists, then you have to give them the right to dump someone else’s book because it has become toxic for some reason you disagree with. Just as if you want to give employers the right to fire people who march with neo-Nazis in Charlottesville, then you have to give them right to fire people who say things you do like (or at least, things you don’t think they should be fired for). You can still criticize the individual decisions, of course, just like I can criticize how you vote without wanting to take away your right to vote.
To put it another way: if you have a problem with these clauses, then do you also have a problem with, say, Twitter, having Terms of Service? Not with the exact provisions, or with how they’re spottily enforced, but the mere existence of them? Should Twitter be allowed to ban racists, or is it stuck with them? I’m just not seeing how you can reconcile indignation at these book publishers without signing on to the rather radical notions of the Freeze Peach crowd that everybody is entitled to use someone else’s megaphone.
This is largely a consequence of monopolies or near monopolies, as I’ve been droning on about for ages. I entirely agree that platforms like Twitter and Facebook shouldn’t be over-regulated and that governments shouldn’t get to tell them what content they can host other than through local laws. One problem is that I’m assuming that local laws are going to be somewhat sensible and that isn’t the case, blasphemy laws being an example.
So protect free speech (in its limited form) by all means….. But then you have the likes of Facebook and Twitter deciding what can be said on their platform. That would be OK if there were real alternatives to these platforms, but there are not. We all know of important but unpopular views that have been erased by the likes of Facebook and Twitter. There’s nowhere else for such people to go. I’m all for shutting down nazis and the like, but when that decision lies in the hands of companies, we get…..well, exactly what we’ve got.
Publishers have a similar sort of dominance. No publisher is a monopoly, but if they all adopt similar contract terms, they might as well be. If one publisher doesn’t comply, there will be an inevitable, expensive smear campaign.
This is because publishers know that people are more capable than ever of self-publishing. The industry is going to change, quite fundamentally, over the next few years and while I’m sure publishers are ready to adapt, they don’t want to lose their grip on the chain until they have to. It’s why they lobbied so hard for such awful things as the Digital Millennium Copyright Act. Unless we’re careful, we’ll end up with a lot of ostensibly distributed publishing-related services which are in truth owned by the same company with the same interests and the same marketing budget.
The fact that we all tend to sleepwalk into monopolies is perhaps the biggest part of the problem. We like to know that someone else is sorting shit out. We need to be better at deeply distrusting de facto monopolies and making them stop. It’s more important than ever now that the commodity is truth.