Opinions Gone Stale: Some Thoughts on Editors’ Duty to Authors of Unsolicited Op-Eds
By Ken K. Gourdin
I’ve had quite a few Op-Ed columns published in about four newspapers in the last three-plus years. I have submitted others that haven’t run. I’ve waited; editors have “sat” on them; and after I figure enough time has passed that they’re not going to run, I post them here – for whatever that might be worth. That has prompted the questions, “Do editors have any duty to people who submit Op-Eds – even unsolicited ones? If they don’t have a duty to those who submit unsolicited Op-Eds, should they?” I think I can make a reasonable argument that they should.
My usual practice is to tell an editor (usually in an e-mail), “Please advise me if you do not intend to run this, so I may submit it elsewhere while it is still timely.” I’ve had varying levels of success with this tactic. For example, one editor of whom I have made that request has never communicated with me, yet he has run both of the pieces I have submitted to him. (Yes, given a choice, I would rather an editor run my submissions rather than tell me he’s not going to.)
Sometimes it takes an electronic, post-submission “tickle” via e-mail, but the editor of my local semiweekly usually is pretty good about communicating with me regarding the odds (and often the timetable) of having my work published. This is usually so, but not always; he’s a busy man. Another editor once told me, flat-out, in response to a subsequent inquiry regarding one of my submissions, “We’re not going to run it.” Hats off, sir: kudos to you. Thank you very much for your honesty. If only other editors would follow your lead – bluntness and all!
While I’m no expert in contract law (I’m not even a lawyer), I do vaguely remember the three elements necessary for the formation of a valid contract: an offer, acceptance of that offer, and consideration (usually something of value) exchanged between the parties. My submission constitutes an offer, and the periodical’s publication constitutes acceptance of that offer. The thing of value exchanged between us is my copyright: in exchange for the opportunity having my work published, I transfer publication, reproduction, and dissemination rights to the publication.
“So what’s the problem?” you might ask. The problem is that I’m not really surrendering my copyright in exchange for having something published. I’m surrendering my copyright in exchange for the possibility – however remote – of having it published. Essentially, it gives editors the power to sit on something until it grows stale and a writer’s chances of having it published elsewhere grow remoter by the day.
“So what’s the big deal?” you might ask. “Millions of letters to the editor are submitted to thousands of newspapers every year, most of which are not published.” True enough, but letters to the editor usually are submitted in response to something else that has appeared in that particular publication, while this may or may not be true of op-eds.
One may, for example, submit an op-ed in response to happenings on the world or national scene generally, rather than in response to something (whether it be a reporter’s coverage of such happenings or another op-ed or letter to the editor about such happenings) that has appeared in that particular publication. Thus, op-eds may have a wider geographic appeal than letters to the editor, many of which concern issues in the local area where their writers live or where the periodical is published.
Yes, editors are busy; yes, they do get an enormous volume of submissions; yes, in light of those facts, perhaps my desire for two-way, pre-publication communication between us is unrealistic in some ways. I do wonder, however, how an argument that the mere possibility of having something published isn’t sufficient consideration to form a valid contract between a writer and an editor would fare in court.
Yes, a regime which better preserves a writer’s timely right to seek to have his work published elsewhere if the first publication to which he submits it declines to do so would require editors to keep better track of submissions. Yes, it would require them to communicate with writers who submit their work. But such a system largely could be automated. The publication could say, in essence, “You may assume, if you have not heard from us by a certain date, that we are not going to publish your work, whereupon you retain the copyright and may seek to have it published elsewhere.”
On the editor’s end, he could have an electronic “tickler” system that provides periodic updates. For example, the system could say, “We received this writer’s work on [date]. We agreed, if he did not hear from us by [date], that he would be free to submit his work elsewhere. There are [x] days remaining until that deadline.” Once the deadline arrived without word that the publication intended to run the writer’s work, the system could send an automated e-mail to the writer informing him that he is now free to seek to have his work published elsewhere.
Unrealistic? Perhaps. Is such a change likely to occur anytime soon? Perhaps not. But the debate over whether the mere possibility of publication (however remote) ought to bind a writer such that he cannot submit his work elsewhere before it grows stale, and over whether it’s possible to change such an unfortunate state of affairs, is one worth having.