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Again, Substack isn't letting me "reply"—I've already emailed support about this—but I'll post this as a new comment anyway, since it actually responds to multiple comments and emails I've received.

1. I should have said upfront that how to handle this situation is quite obviously Crystal Clanton's decision, and she should do what she feels is best for her.

I think I wanted to offer advice because (a) I'm often asked for crisis-management advice by friends, maybe because I've covered a lot of these types of controversies, cancellations, and scandals over the years; (b) I feel empathy for her, given my own past; and (c) it seemed like a good entry point into a story that I obviously have to cover.

But it goes without saying that these are her calls to make.

2. I totally understand and appreciate the "don't apologize" perspective. And I acknowledge that in many cases—and perhaps this case too—it's the wrong response.

My longtime readers know that I'm strongly committed to free speech and rational discourse, and I have deep faith in the power of persuasion and good-faith argument. This is why I'm so troubled by incidents like shoutdowns on university campuses, which are the opposite of all positive engagement.

I also generally believe that in between the ideological extremes, there's a surprisingly large number of moderates who are persuadable on a whole host of issues. And I focus on those people in public debates, as well as my own writing.

But I acknowledge that in 2024, maybe (1) my faith in the ability to bridge divides and persuade people is naive and misplaced, and (2) the moderate middle is vanishingly small (if not quite the 1% referred to by Dave F, maybe only marginally larger).

Time will tell, I guess.

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Mar 1Liked by David Lat

I consider myself in the "moderate middle," detesting both the far left and far right. I believe in redemption and forgiveness or maybe I am getting "softer" as I get older.

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Mar 2·edited Mar 2

(Replies working!)

On (2), I think there are a litany of complexities here. Your commitment to free speech and rational discourse is very much the minority position here of people who continue on this story. The overwhelming majority that do continue on this story not interested in the veracity of whether Crystal hates black people ("f**k them all"), and if they were, the relevant analysis would be "does Crystal hate black people?" and the *current* Crystal, nine years-removed from her 20 year old self, who has since literally lived with black people and by all accounts (which do not seem to be in dispute) currently treats everyone with respect would be who you should be investigating. Crystal is going through the never-ending media gauntlet because the writers hate that she's a conservative, not that they think she's currently racist (or at least, any more than they assume all conservatives are racist). So proving or disproving the facts of this story from nine years ago isn't going to address their core concerns (i.e. that she's a conservative and on track to become influential in legal circles) because they are not interested in whether or not she is racist.

And I would actually fault you for continuing this story despite everyone else's clearly bad and partisan intent around it. It isn't important and you keep breathing life into it, and you're empowering those opposed to your values by doing so. If you are "strongly committed to free speech and rational discourse" (which, let me clarify, I think you are, it's why I'm a paying subscriber, I just think you're very very wrong in this specific issue) why are you hounding someone over messages sent privately almost a decade ago? I think anyone with such values should, as a threshold matter, dismiss the materiality of the charges -- just as I think current college students who say in private extremely insensitive things about, say, Jews, for example, should not be run over the coals for a decade over such actions. People grow, they learn their opinions are wrong (especially those held at age 20), and it is not constructive nor desirable to relitigate people growing intellectually by constantly hounding them about prior opinions. And so by continuing to prod at someone over their 20-year old self's *private* speech, you're undermining your commitment to free speech.

I personally do not believe, and I get that this is somewhat controversial in the "self-flagellation is the best way to be *clap* accountable *clap*" crowd, that the broader public is owed apologies for private messages and discussions (particularly of a 20 year old) from many years back -- unless it directly harmed the public. I could not care less what my immediate coworker may have said as a sophomore in college privately to another person, and I don't think it's appropriate for me to even consider investigating that. If it came out that my immediate coworker was outed for private insensitive messages from a decade ago, I wouldn't suddenly put that person on trial "is this true? did this happen? have you apologized for saying things privately that are offensive?", I would instead, if it wasn't already transparently obvious, say, "does this reflect who you are now?". And if the person said "no this does not reflect who I am today" that is the end of it. That is exactly what Crystal has done. And some kangaroo court run by the media (and... House Democrats?) to determine the precise way those messages got in her phone, all to intentionally ridicule such person, is not how adults should behave, and I stand by that this is a blemish on our profession for continuing to breathe life into this story.

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author

Posting on behalf of a reader who emailed me (with their consent):

"Love your writing and podcast episodes. Appreciate you and the work you produce. I believe it is consistently an important perspective.

I personally go back and forth about your letter to Crystal, focusing on the part that assumes that she did NOT write those texts. Maintaining that assumption here, in short, it appears your letter, in my view and respectfully, places a lot of the effort at correcting this wrong on the victim, i.e., Crystal. I do not love this.

Were I similarly situated, working to build the reputation and career that Crystal seems to be building, I do imagine that I would want to strongly correct the record and denounce such horrible expressions. But I am not in her shoes, and I have not had to deal with the very public and stress inducing situation she currently finds herself in. So, I am tremendously reticent to say what is 'correct' or 'normal' in terms of how she should respond. The idea that Crystal MUST do something or behave a certain way is something I would caution any third party observer/commentator/advisor against when counseling a victim.

I spent an all too brief time representing human-trafficking victims in the San Francisco Bay Area, and the last thing any of them needed was any sort of judgment or opinion about what they NEEDED to do. The best and only approach, in my opinion, about counseling victims is first to return the power and decision making authority to them. I believe strongly in the approach being what do THEY want to do, and how can we as counselors advise them on the avenues available to best achieve their desired outcome or path. THE DECISION IS THEIRS.

Obviously, the degree of the wrong against Crystal is perhaps categorically different from the wrong committed against my former clients, but I believe the most appropriate approach to working with and FOR victims remains applicable and true."

I responded to this reader as follows:

"I don't know that I disagree with your main point; I acknowledge that the choice of how to proceed is Crystal's.

As someone who often gets asked for crisis-management advice, I thought it would be helpful to outline what I would do if consulted. And maybe I was 'projecting' a bit, empathetically trying to imagine myself in her shoes.

But I acknowledge that I haven't been consulted, and she should do as she pleases (and she will have a great career regardless of what she does, as long as she sticks to conservative circles)."

And this reader replied:

"Certainly, I do appreciate your assumption made [for purposes of this post] that had Crystal asked you for advice, this is an example of what you would advise. However, insofar as that advice may perpetuate the all too oft-taken approach that a victim should be told what to do, I am cautious.

As shortly as I can put it, assuming Crystal did not send those texts, the only words of advice I would have are as follows: 'I work for you and am here to help you achieve your desired outcome. The decision is and will always be yours. What would you like to do?'"

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author

(For some reason Substack is not letting me "reply" to Dave F., so I'm writing this as a new comment.)

You seem to be assuming she's guilty. Let's say she's innocent. You don't think she should "engage with the cancelers" by providing detailed evidence about the person or people who framed her?

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Not engaging with the accusers is better. Why waste time and energy? Would you completely believe her if she outright denied it? Most likely not, so why bother. The person’s character will be tainted forever. Racism accusations are very special and can tank someone for life unless it’s against white people. Then the idiot racists are celebrated and often do very well. Examples-all the DEI promoting crooks.

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Mar 1Liked by David Lat

I'm sorry, but please. This is embarrassing, and the legal profession should be ashamed. Stop giving this oxygen.

This is not materially important, and the lengths to which people have gone to destroy someone for overt political reasons is reprehensible. Everyone who has continued the dialogue should splash some water on their faces and look in the mirror. It's transparently political, and gross, as the exact type of people (e.g. "House Democrats") pursuing this story to the ends of the earth are absolutely people who have not spent one millionth of the same effort of holding Joe Biden to account for his past (and more recent) racist statements -- and certainly Joe Biden has much more influence on society. (Requisite throat clearing: yes trump is more racist, that's not the point)

And as for the specific advice, no. Engaging with cancelers (which is what everyone here is) is the worst advice. No apology is ever enough, and is only ever used as a weapon to further hurt someone. Its a common thread on podcasts that discuss cancellations (e.g. Blocked and Reported). Not speaking on the issue is exactly the correct approach.

Crystal Clanton will never win over anyone seeking to ruin her. So why bother? Regardless of the truth or falsity of the story, what is to be gained? Approval from maybe the marginal 1% (of which perhaps you David consider yourself) who would actually be moved by her addressing the issue? How is that worth breathing continued life into a story that is never going to go away anyway? She has clearly personally convinced everyone for which it matters to her directly and so no, I don't think its a useful exercise to try to say something to appease House Democrats in this instance.

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Mar 1·edited Mar 1Liked by David Lat

I agree with your advice provided in the column, particularly regarding the importance of owning up to past mistakes. As a Gen Xer, I can relate to growing up in an environment where racist and homophobic sentiments were expressed. I have been the subject of racists taunts and made homophobic jokes. However, it's crucial to acknowledge the hurtful impact these words can have and to take responsibility for them.

I also believe that a sincere apology and genuine efforts to make amends can go a long way in repairing relationships and earning forgiveness. While some may still choose to "cancel" someone regardless, many are willing to forgive when they see genuine remorse and accountability. Looking forward, such a sincere apology could indeed serve as a testament to one's growth and maturity, potentially even paving the way for future leadership roles (like being a Supreme Court nominee).

Acknowledging past mistakes and taking steps to address them is important and serves as a reminder that we all have the capacity to learn, grow, and make amends for our words and actions.

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Mar 1Liked by David Lat

Crystal is free to make her own choices. As someone who holds strong liberal beliefs, I strive to maintain a hopeful view of humanity and refrain from automatically assuming the worst in others. It's important to acknowledge that this situation is already public, and attempting to deny or ignore it would not serve her well. Displaying humility and admitting when one has made a mistake takes courage, especially when faced with opposition. Maybe it's the lawyer large ego mentality causing people to suggest that she should not apologize, but I admire individuals who can let down their guard and show vulnerability. Offering a sincere apology is a vulnerable act, but it also allows others to see the human side of a person."

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I'm skeptical of the validity of your advice if she did send the texts. Indeed, this seems to go against what we've seen in cases of cancellation and attempted cancellation where apologies tend to make things worse.

All admitting it and apologizing will do is reignite the discussion. Ironically, the **better** her excuse is [1] for sending the texts the more an explanation will backfire because it will make it an interesting issue for people to debate. A large segment of the online public is going to be out to get her now for no other reason than she's Thomas's clerk and they won't accept an apology (when apologies do work it's usually by convincing the people who raise racism accusations your on their side).

On top of this any apology raises the issue of whether she was lying before. Right now, she can hope people don't really remember it that much and hope that if people do they'll be some reluctance to deny her a job on this kind of vague scandal. I think many people who might be uncomfortable holding the situation against her now would find the "ohh she must have been lying before" argument a comfortable way to avoid a disagreement without having to confront the underlying dispute.

1: I can imagine all sorts of ways the text could have been sent that merely show poor judgement not any personal animus towards people of a given skin Cor. For instance, let's say she was young and drunk/stoned/whatever and was making some hyperbolic attempted joke that fell flat. Or perhaps it was meant to critisize something that culturally black people do more frequently the way someone might say, "I fucking hate white people they're always asking to speak to the manager and nakinh everyone else just trying to get our coffee at Starbucks late for work". Though there are good reasons we have norms that treat such talk about whites and blacks differently that suggests that one can end up saying those things because of a poor grip on those norms rather than deep animus.

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Also (since for some reason I can't edit my initial comment) I think the underlying issue with your suggestion is that the threat to her career isn't that normal reasonable people will assume she's a racist (in the traditional sense). I agree reasonable sane people would understand such an explanation but for the most part I expect they already think she's probably not a racist.

Rather, I expect the concern she faces is that people will worry she's likely to draw too much negative publicity. Hence why her best move is to stay quite and keep her head down.

Maybe even if she didn't send the texts.

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Mar 1Liked by David Lat

(At risk of hyper-cluttering the comment section here, since I am also having issues replying to David's or my own comment below, this is in response to David's separate comment sent around 1:25 pm est)

I think the analysis is easiest if she's guilty. If she is, does it materially matter? No, so let's move on. Also I doubt any of the people pursuing her would ever be convinced she isn't, so it is easiest to operate from the guilty framework.

And no, if she is innocent, I don't think she should engage by "providing evidence about the person or people who framed her". How is that going to work out well? Connecting people who are currently actively trying to destroy her life publicly/online with... someone who previously tried to destroy her life who was willing to go to extreme lengths to do so? The people currently trying to, and intending to, destroy her life are going to be very credulous with someone who would be more than happy to lie to help facilitate that.

If innocent, the only people she should connect around these issues are people expressly *not* trying to ruin her life, who would investigate the issues and reach their own conclusions. She has done precisely that with Judge Pryor and Justice Thomas, at minimum. She has their approval, I don't see the benefit in trying to get House Democrat's approval or Above the Law's approval.

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Mar 1Liked by David Lat

I am having issues editing as well. I clicked the edit button but can't make edits. This must be a Substack issue.

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author

I ran this by Substack support, and here's what they said:

"Edits can only be made shortly after posting a comment. If you do not see the 'edit comment' option, the window to make changes has passed."

I just tested editing with another comment; it seems to work. (I don't know how long the window is.)

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Mar 1Liked by David Lat

I eventually was able to edit my comment but then was having problems responding to threads like you were. Looks like both issues have been resolved.

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author
Mar 1·edited Mar 1Author

Testing the editing function. Okay, it works.

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Good for you, David, for not saying nothing. I'm with you about Clanton's bizarre non-denial. I would not be at all surprised to learn it was written by a judge. Speaking of judges, is it worth mentioning that what we're really speaking about is judges? The issue here isn't merely a mean-spirited twenty-something-year-old who apparently doesn't respect the principles in the First and Fourteenth Amendments. We're talking about somebody whose career path indicates a high likelihood she will become a judge on a fairly high court. We're also talking about multiple judges choosing whose careers they want to promote (and why).

So I'm with the illustrious champions of the freedom of speech and press in the First Continental Congress (and the SCOTUS justices who have quoted them): “the freedom of the press” is one of our “great rights” especially because it serves the “advancement of truth” about public officials and affairs, including so that “oppressive officers” can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” We definitely don't need more purported public servants (including judges) who care more about their own pride, their own prejudices or their own politics than the Constitution.

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Wow. First time I’ve been disappointed reading this column.

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author

I guess I will take that as a compliment? ;-)

I'm assuming the issues you have with the post are similar to the ones already raised, but if you have different reasons for disappointment, please feel free to share them!

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I thought the column was, like your comment- snarky, and condescending.

But you are right, it is a bit of a compliment. You are almost always excellent and when you aren’t excellent you are good.

Everyone has a bad day occasionally.

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author

I didn't intend it to be "snarky and condescending"; my goal was more "playful," which is why I added the winking emoji. Tone can be hard to convey in comments.

As my readers know, I really strive for civility. So I apologize if my comment came across as anything other than that.

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