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.