Friday, January 8, 2021
Senator Josh Hawley's Contract with Simon & Schuster
As the New York Times reports, Simon & Schuster has decided not to publish Senator Josh Hawley's book "The Tyranny of Big Tech." According to the Times, Simon & Schuster explained that, while it likes to present different viewpoints, "we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat.” Simon & Schuster regularly publishes books by and about political figures, including books critical of the current President by Bob Woodward, Mary L. Trump, and John Bolton, and books supporting the current President by Sean Hannity and Tucker Carlson.
In 2017, Simon & Schuster similarly withdrew from its commitment to publish a book by right-wing provocateur Milo Yiannopoulos. Yiannopoulos sued, but later dropped the suit. Senator Hawley (above, right) seems to be headed down the same path. He Tweeted out his response to the "woke mob" at Simon & Schuster as follows:
Josh Hawley is a graduate of Yale Law School. That should mean that he is off-the-charts smart in testable ways. And perhaps this is a very smart thing for a politician to say in order to appeal to people on Twitter who don't know the difference between contractual rights and First Amendment rights. This blog is not the Senator's target audience, but for what it's worth we are not impressed.
Shall we start with "Orwellian?" There is nothing Orwellian about what Simon & Schuster has done. It is not conflating black and white, day and night, lies and truth, war and peace. It's not clear why Senator Hawley accuses Simon & Schuster of having "redefined" Hawley's conduct as "sedition." The company's statement doesn't mention sedition. But you can check out 18 U.S.C. § 2834 and decide for yourself whether the shoe fits.
Simon & Schuster has decided to withdraw from a contractual obligation because it disapproves of the Senator's actions. It's a private corporation; it knows that a contract entails a promise to perform or to pay damages. It apparently stands ready to do the latter. Of course, it may not be necessary for Simon & Schuster to pay damages, because Senator Hawley may be able to mitigate his damages by publishing with another publisher.
But there is something Orwellian about Senator Hawley's claim that he was "representing his constituents" by challenging the results of elections in other states. Senator Hawley's senior colleague, Roy Blunt, did not think his senatorial duties required him to challenge the certification of ballots in the Presidential election. Knowing everything Senator Hawley knows and sharing his political perspective, Senator Blunt, siding with 90 judges who had reviewed the claims, concluded that there was insufficient evidence to sustain objections to the ballots. The Kansas City Star has concluded that Senator Hawley has "blood on his hands" and calls for him to resign.
Senator Hawley next says that this is no mere contract dispute; it's an assault on the First Amendment. It's not clear that it is a contract dispute. It likely is a breach of contract, but Simon & Schuster may not dispute that it has breached. It may allow Senator Hawley to retain his advance, and both parties will move on.
Simon & Schuster has not assaulted the First Amendment because the First Amendment only protects us against government infringements of our free speech rights. Simon & Schuster is not the government. It doesn't have to publish speech of which it disapproves. It can "cancel" Senator Hawley, if by "cancel" Senator Hawley means shun and disapprove of on moral or political grounds.
I very much doubt that Senator Hawley will see Simon & Schuster in court. He does not mean that literally. He does not mean it figuratively. This is all just theater. Fortunately, this variety of theater is not likely to result in bloodshed. For Senator Hawley, it's just a fundraising opportunity.
Smart guy.
https://lawprofessors.typepad.com/contractsprof_blog/2021/01/as-the-new-york-times-reports-simon-and-schuster-has-decided-not-to-publish-senator-josh-hawleys-book-the-tyranny-of-big-tec.html
Comments
This is a great point. Guy Rub also made it on Twitter. I didn't want to speculate on the contents of the contract, but I also didn't know that morals clauses had found their way into publishing contracts.
Posted by: Jeremy Telman | Jan 8, 2021 9:21:34 AM
The contract also may include a limitation of liability clause which allows him to keep his advance but nothing else in the event of breach by the publisher. But, as previously noted, there is probably no breach since there is likely a clause that lets the publisher get out of publishing his book if it would harm the publisher's reputation.
Posted by: Nancy Kim | Jan 8, 2021 1:41:07 PM
If S&S based its decision on Senator Hawley's challenge of the state elector count, why? He was engaged in a legitimate democratic process.
Posted by: rob konduros | Jan 9, 2021 8:43:09 AM
If S&S is convinced Hawley was wrong because S&S believes there was nothing irregular or fraudulent about the presidential election, they should check their news sources. Was it the NY Times or WashPost that won a Pulitzer for reporting Trump colluded with Russia. I would not trust their reporting on the legitimacy of the recent election anymore than I trusted their reporting of Russian collusion and their failure to verify their information.
Posted by: rob konduros | Jan 9, 2021 8:48:44 AM
Final point: regarding 'siding with 90 judges' who dismissed claims of election impropriety, the 4-3 majority in Wisconsin relied on latches but as the minority explained, the sole statutory authority for election challenges only permits candidates for whom votes have been cast [past tense] making a challenge. Ergo, latches is irrelevant. You can only challenge the result once the election is over. Generally, I suspect 90 judges took a pass for alterior reasons. The failure of the judiciary was a disservice to the country as a whole. Personally I will boycott S&S publications going forward.
Posted by: rob konduros | Jan 9, 2021 9:03:24 AM
Thanks for commenting Rob. S&S is s business, and I have no doubt that responses like yours factored into their decision not to publish with Hawley. They will lose some business, but they thought it worth the expense to prevent a potentially more weighty harm to their brand. Time will tell.
As to the Wisconsin Supreme Court, that's one decision. The lower courts in Wisconsin reached the merits and found no evidence of fraud. Other courts that addressed the merits reached the same conclusion. No court has found evidence of fraud and many other fact finders, such as the Republican officials responsible for overseeing elections in Georgia, have combed the allegations and found them unsubstantiated. As others have pointed out, Hawley himself does not really allege fraud; he only alleges that there are allegations of fraud. I'm not sure why you treat that political theater as though it were a principled stand.
Posted by: Jeremy Telman | Jan 9, 2021 9:50:54 AM
The contract may well have a clause that permits termination where the author commits 'moral turpitude' or something similar - so there may not be much exposure to damages for the publisher.
Posted by: Neil Guthrie | Jan 8, 2021 8:55:59 AM