Josh Hawley's Cancelled Book Contract Is Not "Orwellian"

Simon and Schuster did not violate his First Amendment rights: the publisher has made a commitment to the political order that ensures free speech.

Jan 11, 2021

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On Wednesday, Republican Senator Josh Hawley (R-MO) was photographed on his way into the Capitol. Based on lies, which would be read into the Congressional record, he promised to delay—even halt—the Electoral College count that would confirm Joe Biden and Kamala Harris as the winners of the 2020 election.

This preppy populist pumped his fist at the insurrectionists roiling in front of the building, a photo that will forever represent his fall from grace. Fresh from a Trump rally and cloaked in millions of dollars of paraphernalia sold to them by Donald Trump, this mob would shortly invade and sack the heart of the United States government with the express purpose of preventing Biden and Harris from being inaugurated.

January 6, 2021, rally that preceded the attack on the Capitol. Photo credit: DrDanielle/Wikimedia commons

Both Hawley and the mob failed to reverse the outcome of a legal election, but they left five dead, a ruined building, and a splintered Republican party behind. The following day, Simon & Schuster canceled Josh Hawley’s book contract, citing the publishers’ “larger public responsibility as citizens,” and their unwillingness to “support Senator Hawley after his role in what became a dangerous threat.”

Hawley's response to his cancellation captures the zeitgeist of a right-wing that sees any limits to individual speech, no matter how foul the words, as a Constitutional calamity. Simon & Schuster’s action was “Orwellian,” Hawley announced. It was the act of a “woke mob” employed at the publishing house, “a direct assault on the First Amendment” and an example of“the Left looking to cancel everyone they don’t approve of.” Hawley vowed that he would “fight this cancel culture with everything I have. We’ll see you in court.”

Let me say: I have always been passionate about the First Amendment. Because of that, I am a member of PEN America. Conservatives have worked hard to curtail freedom of speech in education, a profession to which I have dedicated my entire adult life. I have watched as colleagues at public universities have, in some cases, been harassed out of their careers by internet trolls goaded on and financed by conservative groups. Limits on acceptable speech have consequences for people’s lives, but they also undermine the possibility of maintaining a robust public sphere through dissent and debate.

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Mostly, I think, the right way to handle speech that I find abhorrent is to limit my contact with it. But honestly, abhorrent speech is part of our world, and it is part of my job to make sense of the world. As a historian, the fact that abhorrent speech is not suppressed is crucial to doing my work. Anyone who has investigated my recent book's footnotes will find them full of references to carefully archived, politically godawful books, newsletters, and websites.

The freedom to speak and publish undergirds my career and the careers of others like me. Because of this, last summer, I signed a document that is now colloquially known as “The Harper’s letter,” a statement of conscience about free speech and the ways that social media, click-bait news, and popular opinion are mobilized to quash dissent. Formally titled “An Open Letter on Justice and Debate,” it affirmed the values of racial and social justice that were shaking public life out of its complacency about racial violence at that moment. But it also proposed that the passions social movements evoke have a dark side that is sometimes used to justify bullying, foment conspiracy theories, misrepresent, and shame people into silence who ought to be heard and engaged.

Naturally, of course, bullying, fomenting conspiracy theories, misrepresentation, and shaming followed the letter's publication. After all, it’s the internet, and, more importantly, you cannot stand behind the right to dissent and then rule it out of order. But the fact that a statement supporting free speech was controversial on the left in the first place highlights how anemic our conversations about freedom of expression are more generally, how little we discuss who it is available to and why, and what the consequences of this neglect are.

One of those consequences is that we are often ill-prepared to respond coherently when illiberal political figures like Josh Hawley weaponize the First Amendment. But I am going to try.

The first thing to remember is that losing a publishing contract is not the same as being bullied on the internet, not having financial support for your creativity, or being silenced by the government. A publishing contract is a legal instrument, not a social one. It contains any number of exit points for publishers if things go south.

By signing the contract and accepting money from the publisher, the author accepts a set of contingencies that protect the publisher’s investment. I went back and looked at my own recent book contract to remind myself of what they were. My publisher could have kicked me loose if the manuscript was not “of acceptable quality,” if it was “acceptable,” but I refused to make needed revisions, if I failed to meet deadlines, or if the publisher went bankrupt.

Contracts aren’t always canceled when the terms are not met. In fact, I did miss several deadlines. Still, it didn’t cause the press to act harshly: it caused everyone to work harder to meet the publishing deadline, especially me, but also others who had to accommodate my tardiness by rearranging their own schedules and priorities. The most interesting cancellation clause I found in my contract was the “Force Majeure” clause, an event “beyond the Publisher’s control” such as “War, Terrorism,” and the “inability to obtain materials necessary for the manufacture of the Work.”

My point is: contracts don’t get canceled just because the publishing interns have a bird about someone’s politics or sexual misconduct. This is a lie.

Yet what happened to Josh Hawley is not entirely uncontroversial, even outside conservative circles. What may have tripped him up is something that has become a more frequent component of a book contract in recent years: the “morals clause.” According to the Authors Guild, which opposes them, the morals clause allows

publishers to terminate a book contract, and in many cases even require the author to repay portions of the advance already received, if the author is accused of immoral, illegal, or publicly condemned behavior. Publishers insist they need the clauses to protect themselves in the event an author’s reputation becomes so tarnished after the book contract is signed that it will hurt sales. But most of these clauses are too broad and allow a publisher to terminate based on individual accusations or the vague notion of “public condemnation”—which can occur all too easily in these days of viral social media.

Morals clauses have a nasty history, particularly in television and film, as a way to control artists’ private lives. They are also why celebrities and athletes lose endorsement deals when they behave badly.

In a smaller way, authors represent the publisher: you have been chosen to build their brand somehow. Not insignificantly, celebrity book deals support a range of authors who publishers want to support but who won’t, in some cases, even earn out what it cost to publish them. In contemporary publishing, morals clauses function more to avoid financial losses associated with someone who has ruined their reputation o lost their audience by doing something skeevy. In 2017, Simon and Schuster canceled Milo Yiannopoulos’s contract amid a furor over a story he told about himself, as a teenager, consenting to oral sex with a priest.

What was vile about this, in my view, was not Yiannopoulos’s views about himself, but rather that it was a deliberate troll of the many thousands of people around the world who have been abused by predatory clergy. Of course, the publisher had signed Yiannopoulos, knowing that he was an alt-right troll and was likely to say outrageous and ugly things. But pedophilia does tend to be a red line. I suspect that what also changed was not that Simon and Schuster had learned something new about Yiannopoulos, but that the alt-right audience who was supposed to buy the book (but, as we know, is particularly zealous about policing pedophilia, real and imagined) abandoned him.

It should be said that morals clauses affect very few authors, many of whom aren’t even writing their own books. And yet, it is important to remember that all contracts establish industry norms. They trickle down to affect authors who are only moderately well-known or have not yet begun to make a reputation. As the Writers Guild argues, today, morals clauses have a disproportionate impact on writers from the marginalized groups because they are more likely to be targeted by trolling and internet violence. Thus, they have “a chilling effect on free speech. A writer at risk of losing a book deal is likely to refrain from voicing a controversial opinion or taking an unusual stand on an important issue.”

Clearly, however, the morals clause didn’t chill Hawley’s speech: he went right ahead and, with his words and deeds, tried to destroy our democracy anyway. Arguably, he aided and abetted an act of terrorism. A publisher withdrawing support from such a person does not constitute a violation of free speech, but rather, a commitment to the political order supporting free speech. "As a publisher, it will always be our mission to amplify a variety of voices and viewpoints,” Simon and Schuster said when they announced the canceled contract. “At the same time, we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat."

Would that Hawley and his dozens of congressional collaborators had decided to take their responsibilities as citizens as seriously.

Political Junkie

Josh Hawley's Cancelled Book Contract Is Not "Orwellian"

Simon and Schuster did not violate his First Amendment rights: the publisher has made a commitment to the political order that ensures free speech.

January 6, 2021, rally that preceded the attack on the Capitol. Photo credit: DrDanielle/Wikimedia commons

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