by  | Jul 11, 2017 |

According to the lawsuit he filed on Friday, July 7, 2017, Simon & Schuster refused to publish his most recent book, Dangerous, because of allegations that public statements he made condoned pedophilia[1].

 What’s a “Morals Clause”

It’s a provision routinely included in contracts for celebrity endorsers, professional athletes, newscasters, TV actors, and various other people whose effectiveness and/or salability depends upon the public’s perception of them. Going back to 1972, Marilyn Chambers, the fresh faced young mother holding the infant on the Ivory Snow detergent box  starred in Behind the Green Door, which was considered extremely hard core pornography at that time. This was obviously at odds with the pure and wholesome image Proctor & Gamble wanted the public to associate with its product. Typically, morals clauses allow the company to cancel the contract if the individual is charged with or convicted of a serious crime or conduct which is immoral or widely viewed by the public as reprehensible.Can’t Simon & Schuster Refuse to Publish any Book? Read More

 What Will the Main Issues be in Milo’s Case?

From Fatty Arbuckle to The House Un-American Activities Committee to Charlie Sheen to Brian Williams – How did Morals Clauses Come About and How Have They Been Used[3]?

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Morals Clauses started in 1921 when Roscoe “Fatty” Arbuckle, a very famous silent film star at that time, was arrested and charged with the rape and murder of a young starlet who had been found in his hotel room.  Although the evidence against him was slim and he was found not guilty of all charges, the sensational “yellow journalism” of the day convicted him in the court of public opinion. Widespread outrage at “Hollywood Immorality” prompted the entertainment industry to use Morals Clauses in every contract to protect them from having to continue to pay stars who stepped in scandal, as well as to appease their audiences.

Thirty years later, the House Un-American Activities Committee, at the height of the Cold War in the early 1950s, investigated alleged Communist infiltration of the motion picture industry.

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The next big splash in this area was Charlie Sheen’s contract for Two and a Half Men, which had a very weak Morals Clause,requiring commision of a felony offense involving moral turpitude. This put Warner Bros. TV on shaky legal ground for firing him despite his clearly outrageous behavior, and they had to fall back on the argument that his cocaine use impaired his ability to adequately perform. Sheen sued for $100M, and although the settlement was confidential, it was clearly substantial.

Fast forward to 2015, when Brian Williams, who had just signed a $10M contract with NBC, publicly gave several variations of a false account of a March 2003 helicopter ride during the U.S. invasion of Iraq which he was forced to take back and apologize. His credibility with the public plummeted, and NBC, which could clearly have terminated his contract based on an ironclad Morals Clause in his contract, decided on a six month unpaid suspension instead.

The long and short of this is that every contract is different, and the outcome in each situation is, and will continue to be, determined based on the wording the parties agreed upon when they sat down with their lawyers and made their deal.

[1] As everyone who follows Milo Yiannopoulos knows, he is openly gay, vigorously denies that he has ever advocated pedophilia, and claims that his widely publicized remarks which led to his departure from Breitbart News referred favorably to a relationship he had with a man who was 29 when he was 17. 16 was the legal age of consent in the UK, where this took place. Milo also posted a statement on his Facebook page (which is attached to his complaint as Ex. “I”) denying that his public remarks ever condoned pedophilia. Whether Milo’s remarks expressed approval of pedophilia or not is a question which is not addressed here; it is merely assumed that Milo made public statements which were very heavily criticized.

[2] The NFL contract, for example, allows the club to terminate the player, “if, at any time, in the sole judgment of the Club,….[the] player has engaged in personal conduct reasonably judged by the Club to adversely affect or reflect on the Club.” , http://static.nfl.com/static/content/public/image/cba/nfl-cba-2006-2012.pdf ¶ 11, p. 252.

[3] For an excellent history of the law in this area, see, Morals Clauses, Past, Present and Future, Caroline Epstein, NYU Journal of Intellectual Property and Entertainment Law, Vol. 5, No. 1.

[4] Twentieth Century-Fox Film Corp. v. Lardner, 216 F.2d 844, (9th Cir. 1954); Scott v. RKO Radio Pictures, Inc., 240 F.2d 87, (9th Cir. 1957)

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