Sometime last week, I stumbled across a short story describing a man who was being publicly accused of walking -- or, more accurately, sprinting -- down a path of indecency and inappropriateness that offended "social conventions or public morals." The man was specifically condemned for committing no less than three of the Seven Deadly Sins and then breaking a commandment or two, to boot. However, unlike a biblical allegory, there was no indication of the man's proposed countermove. No metaphorical slingshot. Thus, at the end of my read, I asked myself: WWJD?
In my story, though, the "J" stands for Jon. Gosselin, to be precise. And the controversy described above refers to a recent lawsuit filed by Discovery Talent Services, LLC, a talent agency which secures the services of individuals who appear in TLC's programming, against Gosselin and his loan-out company, JKIG Inc. Although the complaint alleges that Gosselin breached certain provisions of his contract with the agency by, among other things, making unauthorized television appearances, public statements, and press releases, the more interesting -- and, hence, blog-worthy -- part of the complaint is its statement that Gosselin was contractually obligated to refrain from "inappropriate conduct," including "acts of dishonesty or public intoxication, or other conduct that offend[s] 'social conventions or public morals or decency' or that [brings]...TLC 'into public disrepute, contempt, scandal or ridicule.'" According to Discovery Talent Services, any breach of this provision by Gosselin would be grounds for the agency to seek an injunction or restraining order, as well as indemnification for legal fees and other expenses. The discernible inference from the agency's pleading is that Gosselin violated this morals provision when, in the spring of 2009, "photographs of and stories about Defendant Gosselin at bars and nightclubs, apparently intoxicated and in the company of women other than his wife, began appearing regularly in various national and local media outlets and across the internet."
Gosselin is, of course, not the first person to have a morals clause embedded somewhere in his commercial agreement. After all, these restrictive provisions, which prohibit certain (typically unethical, criminal, or otherwise reprehensible) behavior in a person's private life and allow the enforcing party to terminate if the conduct is detrimental to that party's interests, have a long history in the entertainment industry. For example, morals clauses were employed by movie studios during the McCarthy Era in order for them to "lawfully" part ways from directors, producers, actors, etc. who allegedly espoused Communist beliefs. While a studio or other entity would find it next to impossible these days to rely on a morals clause to validly terminate someone based on his or her political views, morality-based terminations are still alive and well. Just ask Kate Moss, Chris Brown or Carrie Prejean.
So to answer the question "WWJD" when faced with a claim for breach of his morals clause, well, Gosselin might start by providing the court a primer on pop culture. Specifically, it seems to me that an obvious problem for Discovery Talent -- and, in my view, a key defense for Gosselin -- is that this conduct (i.e., boozing, womanizing) is insufficiently "amoral" so as to constitute a violation of the contract. Tellingly, we live in a day and age where Hollywood marriages last about as long as the time between scheduled oil changes, where hit TV shows include names like Hung, Weeds, and Californication, and where sex tapes are the launching pad, not the nail in the coffin, of one's "celebrity." Heck, no one even bats an eye at intoxication these days -- that is, unless it yields a sensational mug shot, difficulty eating a burger, or a racist, sexist and/or anti-Semitic tirade.
Second, Gosselin should avoid attacking the morals clause as impermissibly vague. This argument was a non-starter in a case involving an actor who, after being arrested for selling coke to an undercover cop, was fired from his television role pursuant to a morals clause. In rejecting the actor's contention that the contractual language was too ambiguous to constitute an enforceable standard, the Court stated that "[m]orals clauses have long been held valid and enforceable ... "
Finally, there is seemingly little evidence that Gosselin's behavior caused any harm to TLC. More than likely, the photos and rumors served to actually benefit the network. Just look at CBS, whose ratings aftermath following David Letterman's public disclosure of multiple sexual affairs with female staff members was decisively positive.
To be clear, I'm not advocating for Gosselin or condoning his post-Kate behavior. [For all I know, Gosselin wanted out of his contract and the late nights at the local watering hole presented a preferable alternative to posing for Playgirl.] What I am saying is that, absent unlawful conduct or a situation involving sex and/or nudity (or some racy combination of all these things), it is quite challenging for a company to justify termination of a contract under its morals clause. However regressed our mores might be from years past, I think most folks know amoral conduct when they see it, and sorry, Discovery Talent, this ain't it.