Thursday, October 21, 2021

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall

There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available. 

The term "trap house," according to Eugene Volokh, "originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, 'since been abused by high-school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a 'traphouse.'" Although the reports are somewhat conflicting, it appears Yale administrators strongly encouraged the student to apologize and suggested not doing so might hurt his career.  

Virtually every other day on the Volokh Conspiracy website one can find stories of people being criticized, harassed, or even fired or punished for some form of speech some people find offensive. It is my view that the general remedy for such behavior is more speech, not official sanctions, depending, of course, on the specific behavior at issue.

But while all of this is going on, there has been awful conduct by the Chief Judge of the Eleventh Circuit Court of Appeals Bill Pryor who, because of life tenure, is not subject to official punitive sanctions, but reveals in an awful way how racist our society continues to be. Although the Washington Post, Above the Law, and a few other outlets have covered the story, the attention has not been serious enough, and I fear the passage of time will remove this debacle from the news cycle. That would be a terrible mistake.

As reported in the Post, in 2017, the well-respected reporter Jane Mayer reported in the New Yorker that Crystal Clanton, who worked for the far-right group Turning Point, USA, had sent the following text message to a friendI hate black people. Like f--- them all … I hate blacks. End of story,” 

Mayer said she had screen shots of the messages. The only statements Clanton made about this text were, “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” There was no denial of the statements, and there was no apology.

Clanton was fired from her job but shortly thereafter hired by Ginny Thomas, which could be the subject of an entire other blog post, but I will not go into that here. Clanton eventually enrolled in the Antonin Scalia Law School (formerly George Mason), and recently was hired by Judge Pryor as a law clerk upon graduation. Judge Pryor has sent thirteen clerks to Justice Clarence Thomas--more than he has sent to all the other Justices combined. As of this writing, despite efforts by reporters, neither Clanton nor Judge Pryor has commented on this story.

This hateful text message does not appear to be an isolated incident. The Post reported that one "year after the New Yorker story, the website Mediaite, reporting on Clanton’s hiring by Ginni Thomas, described a Snapchat message featuring 'a photo of a man who appears to be Arab and a caption written by Clanton that reads, ‘Just thinking about ways to do another 9/11.’”

This sorry episode is not about cancel culture or political correctness. All federal judges other than Supreme Court Justices are bound by an ethics code that requires them to avoid the appearance of impropriety. A Black lawyer or an attorney with a Black client would be justifiably worried about receiving a fair hearing from Judge Pryor, who has a mixed history when it comes to matters of race. On the one hand, when Pryor was nominated he was supported by some civil rights leaders from his own state of Alabama for his good works. On the other hand, in 1997, long before Shelby County v. Holder struck down a key section of the Voting Rights Act (VRA), Pryor encouraged Congress to repeal the Act, saying it was overbroad, an affront to states' rights, and was no longer needed. These statements coming from a politician from Alabama where Blacks were denied the right to vote for a century after the Reconstruction Amendments were enacted display a horrific insensitivity to the plight of Blacks in this country generally and Alabama specifically.

It is hard to imagine that Judge Pryor did not know of Clanton's statements before he hired her. given his close connections to the Thomases, but even if he didn't then, he surely does now. Reporters have called his office. He has had no comment. I am told by people more attuned than I am to news cycles that Pryor likely knows that eventually this story will go away. That would be a terrible shame. How in 2021 can the Chief Judge (or any judge) of a court tied for the second most powerful in the land hire a law clerk who said she "hates Black people...End of story."?  

If there had been a serious denial or a complete mea culpa by Clanton, this would be a very different situation. As the reporter for the Post said so well:

We all do stupid things when we are young, and some of us do terrible things. We should allow some space for repentance and forgiveness. But there is no evidence of repentance here, and her reported comments are astonishing in their savagery. This is not a case of a racial slur directed in anger at a single individual-not that such conduct would be acceptable. This is even worse: animus expressed towards an entire race.

Judge Pryor needs to account for his behavior. Anything less is a travesty, and until he does, national reporters should keep this sordid hiring in the news.

And one more thing. Every day the Volokh Conspiracy website publishes thoughtful blog posts by various excellent scholars on a wide variety of subjects. As I noted above, these include a good number of posts calling attention to and criticizing instances of what the authors deem over-reactions to speech. To my knowledge, no analysis of the Pryor/clerk situation has appeared on the VC website yet. Perhaps one is in the works. If not, it should be. In order to be able to say that one has overreacted to speech, it's important to be able to say when speech has gone too far--or at least far enough to warrant a public statement.