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Morals Clause in Spotlight in Smiley/PBS Litigation
A lawsuit involving the Public Broadcasting Service and former TV host Tavis Smiley has created the kind of drama that would make the cast of Downton Abbey blush. This is because the litigation centers on an alleged breach of the "morals clause" included in the agreement that gave rise to the Tavis Smiley talk show, which PBS used to air nightly beginning in 2004. TS Media Inc. v. Public Broadcasting Service, 2018 CA 001247 B. While the case has proceeded to trial (still in progress when this article was published), a judicial ruling several weeks prior, relating to the interpretation of that morals clause provided some very useful lessons — but first, a bit of background.
Through his company TS Media, Smiley initially contracted with PBS in 2002 to produce and distribute the program. That agreement was renegotiated and extended each November thereafter — and for the last time in 2017, which contemplated production and distribution of the talk show for its 15th season, commencing in 2018.
But in late 2017, PBS received an anonymous complaint regarding alleged sexual misconduct by Smiley, triggering an investigation by PBS's outside legal counsel. Consequently, PBS suspended the Tavis Smiley show in December 2017, which led TS Media to file its complaint against PBS for breach of contract. The lawsuit asserted that the investigation was a "sham" and that Smiley's dismissal was racially biased. In response, PBS terminated its 2015, 2016 and 2017 contracts with TS Media and countersued, in part pursuant to a morals clause in the agreements, which read:
"Producer [TS Media] shall not commit any act or do anything which might tend to bring Producer into public disrepute, contempt, scandal or ridicule, or which might tend to reflect unfavorably on PBS, any station broadcasting or scheduled to broadcast a program, any licensee of PBS, any sponsor of the program, or to injure the success or any use of the Program. Producer agrees that these same 'morals' standards shall apply to all talent hired, retained or utilized by Producer to work on, or in connection with, the Program ('Program Personnel'), including but not limited to the talent to be featured in the Program."
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