On October 5, 2021, the site Above the Law ran a story by Senior editor Kathryn Rubino about what she described as a vehemently racist law student who was given a prestigious clerkship by William H. Pryor Jr., chief judge of the United States Court of Appeals for the Eleventh Circuit. Above the Law has a long history of attacking conservatives, free speech advocates, and others deemed right of center. This story (which appeared earlier on sites like Mediaite) was perfect from that perspective and lit up the liberal media. That included a column by Washington Post’s Ruth Marcus asking “Why is a prominent federal judge hiring a law clerk who said she hates Black people?” The problem is that the Second Circuit found little evidence that it is true. The question is whether the accused student, Crystal Clanton, will now sue ATL, Mediaite, and other media outlets for defamation.

For some in the media, the ATL story was like manna from progressive heaven. Pryor was on the short list for the Supreme Court under President Donald Trump. Clanton worked for Ginni Thomas, wife of Justice Clarence Thomas, and previously worked for the conservative group Turning Point USA. She later was accepted at Antonin Scalia Law School at George Mason University, a favorite target for ATL (and Rubino) and other sites for its conservative leanings. After she was subjected to attacks from Democratic members of Congress, judicial complaints, and a media firestorm, the Thomas family had the “distraught” student move into their home for a year.

THE CONTROVERSY

What is notable about these articles is that the story was presented as fact, even though Clanton said that she had no recollection of ever writing “I HATE BLACK PEOPLE. Like f**k them all . . . I hate blacks. End of story.” However, Mediaite claimed to have sources that confirmed that this was one of many such racist statements by Clanton:

Numerous sources who worked with Clanton detailed how she would exchange racist remarks regularly with other TPUSA staffers — including Alana Mastrangelo, who currently works for the group, and Timox Prax, who was allegedly forced out of TPUSA this year over “bigoted” remarks — using Snapchat.

“One such message reviewed by Mediaite features 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.” (The source who provided Mediaite with the image requested it not be published to protect their anonymity.)’

That last line will be discussed shortly, but Mediaite (a site founded by ABC Chief Legal Analyst Dan Abrams) said that it had multiple sources on the story.

ATL (which has repeatedly run pieces slamming Clanton) also declared the story as true without even mentioning that Clanton denied the story. Instead, it went on the attack against conservatives everywhere:

So we are left to believe either Judge Pryor is incapable of either the most rudimentary Google search, or he just doesn’t care that he’s putting someone with a history of racist behavior further along on the path to power. Remember federal appellate clerkships are very competitive and serve in the legal industry as bona fides of excellence. It should be shocking that someone with as controversial (and hateful) a history as Clanton finds herself with this elite opportunity, but somehow it is not. The right wing, led by the Federalist Society, has a storied history of pushing true believers that will aggressively push their agenda into clerkship positions, which, in turn, set them for bigger and better jobs down the line. And the kind of controversy Clanton seems so good at attracting is far from a detriment; it proves how committed she is to the cause.

The Washington Post also stated the allegation as fact but did acknowledge that, in the first 2017 article in the New Yorker on this allegation, Clanton did deny any knowledge of the statement. Both the New Yorker and Post noted that denial but Above the Law did not in its October 2021 article.

After the furor raised by the coverage, House Judiciary Committee Chair Jerrold Nadler, Rep. Hank Johnson and other Democrats demanded an investigation into the hiring of this clerk from Chief Justice John Roberts.  The letter stated “[t]hat these judges hired her therefore creates both the appearance of and risk of actual bias in their chambers and their decisions as well as other potential problems…”

THE SECOND CIRCUIT INVESTIGATION

Due to the conflict of interest involving its chief judge, the Eleventh Circuit asked for the Second Circuit to conduct the investigation under Chief Judge Debra Ann Livingston. Bill Rankin of the Atlanta Journal-Constitution reported the results in a piece titled “Judge Pryor cleared of allegations involving hiring of controversial clerk.” The question, however, should be the treatment of that “controversial clerk” and whether she warranted being “controversial.”

I have no “sources” so I cannot speak to Clanton’s history. Those earlier sources relied upon by sites like Mediaite could find themselves the subject of discovery if this now goes to litigation.

We have the results of the long investigation of the Second Circuit, below.  Pryor previously said that he had investigated these allegations and found that Clanton could not speak publicly on the details because of a non-disclosure agreement signed with Turning Point. However, the Second Circuit confirmed that Turning Point USA’s executives refuted the allegations and said that Clanton treated everyone with “kindness, respect and fairness.” This person also said “the media reports are not accurate.”

More importantly, it quoted a Turning Point executive stating that the group did its own investigation and “determined that the source of the allegations against (Clanton) was a group of former employees.” It further recounted:

One of these people held a leadership role at the nonprofit organization. That individual stated, based on first-hand knowledge, that the candidate treated everyone with kindness, respect, and fairness while at the organization and that the media accounts are not accurate. The individual explained that the organization had determined that the source of the allegations against the candidate was a group of former employees. One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not.

Despite that finding, Rep. Johnson called the decision “nothing more than a rubber stamp that gives two influential federal judges cover for hiring a law clerk with a reported history of racist conduct. … This cannot be the end of this matter.”

LIBEL OR OPINION?

The question is whether the matter is ended for Clanton or whether she will sue Above the Law and other media sites for defamation. We often discuss such possible defamation lawsuits and this one could present some interesting issues.

Clanton was not a public figure when this controversy began.  However, she later made a comment to media.  It could be claimed that she became a limited public figure subject to the higher standard of proof in New York Times v. Sullivan. That standard, written for public officials, was later extended to public figures.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).

The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.

This is a matter of public concern and political debate. Courts are understandably hesitant to delve into the super-hearted environment of political speech absent the clearest and rawest forms of defamation. A defamatory statement “must do more than cause discomfort or affront”; it must lead “reasonable minds” to “think the speech attributes odious or despicable characterizations to its subject.” Chau v. Lewis, 771 F.3d 118, 127 (2d Cir. 2014).

Of course, simply saying that something is your “opinion” does not automatically shield you from defamation actions if you are asserting facts rather than opinion. In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), an Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing, saying that it was tantamount to an allegation of perjury.  The trial judge granted summary judgment on the ground that the assertion in the newspaper column was opinion. The Court however rejected the defense in the case in a 7-2 opinion written by Chief Justice William Rehnquist. The Court noted that “expressions of ‘opinion’ may often imply an assertion of objective fact”  and may inflict “as much damage to reputation” as factual claims. Moreover, some opinions are based on assertions that are “sufficiently factual to be susceptible of being proved true or false.”

Courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’” Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation.

MALICE OR JUST A SIGNATURE STYLE?

ATL is an interesting subject for a possible defamation lawsuit. It is a site that often engages in gossip stories and does not hide its anti-conservative and ant-free speech bias. (It regularly attacks me and others who object to the erosion of free speech protections or espouse contrary views). That bias could become relevant in establishing the recklessness or malice behind the article.

The objection to the alleged statement by Clanton is notable given the racist diatribes by ATL writer and The Nation’s justice correspondent Elie Mystal who has lashed out at “white society” and how he strived to maintain a “whiteness free” life in the pandemic.

Notably, ATL continued attacks on figures like Nicholas Sandmann even after he was cleared of the false allegations of harassing a Native American activist in front of the Lincoln Memorial. We previously discussed one segment involving “Above the Law” editor Joe Patrice in his interview with The Nation’s Elie Mystal, In the interview, Mystal, the Executive Editor of “Above the Law”, attacked this 16 year old boy as a racist.  Patrice agreed with Mystal’s objections to Sandmann wearing his “racist [MAGA] hat.” They also objected to Sandmann doing interviews trying to defend himself with Mystal deriding how this “17-year-old kid makes the George Zimmerman defense for why he was allowed to deny access to a person of color.”

Putting aside the fact that Sandmann was not denying “access to a person of color,”  Mystal and Patrice were comparing this high school student to a man who was accused of murdering an unarmed African American kid and even assailing his effort to clear his name as the media continued to label him a racist. While ATL mocked the chance of recovering in the defamation actions, Sandmann has continued to secure settlements for the false statements.

WILL CLANTON SUE?

In this controversy, I believe much of the reckless rhetoric of ATL will be treated as opinion and indicative of the trash talking style of the site. The Court has previously discussed the danger to both free speech and the free press is the imposition of tort liability for political or social commentary. That is why a mere negligence standard was rejected for public officials and public figures.

Yet, the column does not include Clanton’s denial in both prior and later coverage on other sites. Moreover, it is not stating opinion in asserting that Clanton has a racist history. That is a fact that could be subject to a lawsuit.

There are also questions about some of the other coverage.  Mediaite cited numerous sources, which could be cited as due diligence rather than reckless disregard of the truth. However, that depends on the sources. The Second Circuit found that Turning Point identified a group of disgruntled former employees who made the allegedly false allegation (and may have fabricated text messages). Due diligence requires some inquiry into the motivations or relationship of such sources.

Clanton would face some challenges in pursuing any litigation. First, it is not clear that she asked for corrections under the common “retraction statutes” in various states. That can limit or bar some actions.

Second, the New Yorker article is outside of the statute of limitations absent some tolling argument. She notably did not sue the suspected former employees who may have fabricated the text. However, given the later references to sources, there is a good-faith belief that, if the text was fabricated, that individual (or others) may have repeated the false statements about her within the statute of limitations.

Third, statements by the members of Congress are generally protected under the Speech and Debate Clause. However, the privilege protects legislative proceedings and generally does not apply to news releases, speeches and other public comments. This was the holding in Hutchinson v. Proxmire, when Sen. Proxmire was found to be acting outside of the clause in making media comments regarding his golden fleece award.

It is not clear if Clanton is inclined to sue, as did Sandmann. Such lawsuits can expose every aspect of your life and prior statements. Even if the lawsuit is narrowly crafted to the specific text message that led to this coverage, the defendants would likely try to prove that Clanton has engaged in other racist statements.

Conversely, she could pursue these sources and any internal communications linked to the story. The identity of these other former employees is obviously known to Turning Point and others. They could be deposed on the basis for their disparaging accounts of Clanton.

In response to the Second Circuit report, Above the Law ran a second column by Rubino that may have made matters worse. The column titled, “Federal Judges That Hired The ‘I HATE BLACK PEOPLE’ Law School Student Cleared Of Misconduct,” is dripping with the signature sarcasm of the site. However, it effectively repeats the accusations against Clanton while casting doubt over the report, even though it was done by a different circuit.

ATL continues to refer to Clanton’s “rather notorious history” and said, as Rubino predicted, “not much has come of the investigation.” She simply dismisses the results of the investigation and adds “So, the federal judiciary has better investigative resources than the New Yorker now?”

Under that standard, no investigation or trial would seem sufficient to challenge the inviolate conclusions of a publication. (It also ignores that ATL was relying on facts from 2017 and raises the question of whether it sought confirmation or more recent information) Moreover, Rubino did not simply report “as alleged by the New Yorker” or other sites. She wrote that the allegation was fact — and that Clanton is a little more than a raging racist.

The column goes on to emphasize that “the language in the decision falls short of explicitly saying that Judges Pryor and Maze determined the allegations were based on falsified documents” and then adds gratuitously that

Perhaps what the judges feel comfortable saying is “not true” are the allegations Clanton is a racist. That whatever happened while she was at Turning Point USA, the most important thing is that she treats folks with respect now. Maybe they truly believe Clanton has done the soul searching needed to overcome even unconscious biases.

The column does not explicitly correct its earlier statements and effectively repeats the allegations against Clanton. In the very definition of yellow journalism, it simply refuses to accept that the failure to find that Clanton wrote the texts does not mean that she is not still guilty of something, including other snapchats referenced in the Mediaite article. The column showed the same refusal to accept an earlier error that was evident in the Patrice/Mystal discussion of Sandmann.

The Second Circuit report casts considerable doubt over the original reporting. It certainly shows that no responsible publication would have stated the alleged text message as a fact as opposed to an allegation denied by Clanton. Ironically, the greatest defense for ATL could prove its reputation for gossip and ad hominem attacks. However, that “no-one-takes-us-seriously” defense did not work out for Dominick Dunne.

Given its relentless attacks, ATL has shown that it will continue to hound Clanton in her career. The question is whether Clanton wants to sue and whether ATL and these other outlets could prove either truth or other defenses to libel.

Here is the report: Second Circuit Report