• by January 8, 2019

More publishers are updating writing and editing contracts with wording that once was reserved for artistic performers or professional athletes.

The agreements are more likely to contain a “morals clause” that holds an individual to a standard of personal conduct. The #Metoo era that ended the careers of media moguls such as Harvey Weinstein is likely to make morals clauses even more common.

CBS may have invoked a morals clause among its reasons for determining former CEO Les Moonves was ineligible to receive a $120 million severance payout in the wake of a sexual misconduct scandal. It remains to be seen how Moonves will contest CBS’ allegations, either in arbitration or in court.

Condé Nast added a paragraph to its yearly contracts with regular contributors that author Judith Shulevitz describes as a “doozy” in an opinion piece for The New York Times. The publishing giant can terminate the agreement if the writer “becomes the subject of public disrepute, contempt, complaints or scandals.”

It’s understandable that Condé Nast -- publisher of Vogue, Vanity Fair and The New Yorker -- wants to protect its business interests in creating a “brand-safe” environment for advertisers. The company also wants employees, especially editors, to uphold a reputation for tastefulness, refinement, class and enlightenment.

But those qualities aren’t always associated with writers, as anyone familiar with literary history can attest. Some of the most important published works have expressed controversial views that led to public outcry, government condemnation or complaints.

It’s not clear how many publishers and journalists have lost jobs because of morality clauses. In many cases, it appears they were fired or suspended over claims of sexual misconduct. Vox has a running list of the publicly accused, including 57 from the media industry.

The lack of due process in terminating a writer's contract for violating a morals clause may have unintended consequences, such as a chilling effect on important journalism.

“Times change; norms change with them,” Shulevitz writes in the Times. “Morality clauses hand the power to censor to publishers, not the government, so they don’t violate the constitutional right to free speech. But that power is still dangerous.”