Why Did It Take Stanford So Long To Recognize This Satirical Flyer As Protected Speech?

The university investigated a law school student for mocking the Federalist Society, putting his diploma on hold until yesterday.

In 1983, Hustler magazine ran a Campari ad parody featuring Moral Majority leader Jerry Falwell's description of his "first time"—a "drunken incestuous rendezvous with his mother in an outhouse," as the Supreme Court would later describe it. After Falwell sued Hustler for libel and intentional infliction of emotional distress, the Court unanimously ruled that the magazine's obviously facetious description of the televangelist's sex life was protected by the First Amendment.

Although Hustler Magazine v. Falwell, decided in 1988, is a famous free speech case, it did not prevent the leaders of Stanford Law School's Federalist Society chapter from complaining that third-year student Nicholas Wallace had defamed them, their organization, and two Republican politicians by distributing a satirical flyer that mocked the group's ties to lawyers who participated in former President Donald Trump's vain attempt to stop Joe Biden from taking office. Nor did it prevent university officials from launching an investigation of Wallace, who was scheduled to graduate on June 12, and jeopardizing his career by putting his diploma on hold in the meantime.

The university reconsidered that decision after Wallace's predicament attracted national attention, drew bipartisan criticism, and provoked a detailed rebuke from the Foundation for Individual Rights in Education (FIRE). "In cases where the complaint is filed in proximity to graduation, our normal procedure includes placing a graduation diploma hold on the respondent," a university spokesman told The New York Times last night. "The complaint was resolved as expeditiously as possible, and the respondent and complainant have been informed that case law supports that the email is protected speech."

It took the university more than two months to reach that conclusion, which FIRE thinks should have been obvious from the outset. "If 'normal procedures' and review by a university attorney let an investigation into political satire proceed, something is wrong with the procedures," it says. "It should not take outrage from Twitter and a United States Senator to protect political satire at any institution of higher education."

FIRE is referring to Sen. Brian Schatz (D–Hawaii), who called attention to the case on Twitter yesterday. "How is this taking any longer than 15 minutes for them to reverse and apologize?" he wondered. It's a good question.

Wallace's ersatz Federalist Society announcement, which he shared with other students via Stanford Law School's "law-talk" listserv on January 25, described an event featuring Sen. Josh Hawley (R–Mo.), who played a leading role in the challenges to Biden's electoral votes on the day of the January 6 Capitol riot, and Texas Attorney General Ken Paxton, who filed a quixotic lawsuit seeking to overturn the election results and addressed Trump's supporters at the "Save America" rally that preceded the riot. The subject line of the email was "The Originalist Case for Insurrection," which was the first clue that it was a joke.

There were others. The Federalist Society event supposedly was scheduled for January 6, 19 days before Wallace distributed the flyer. Although Wallace used the group's logo (just as the Hustler ad parody featured a photo of Falwell), the email was not sent from a Stanford Federalist Society address, and it was not distributed on the "law-announce" listserv used to promote actual events. The flyer featured a picture of Paxton speaking at the January 6 rally and a notorious photo of Hawley raising his fist in support of pro-Trump demonstrators as he entered the Capitol that day. It said "riot information will be emailed the morning of the event," and "the first thirty students to RSVP will receive a $10 Grubhub coupon to be used the day of the event."

Here is how Wallace described the event:

Please join the Stanford Federalist Society as we welcome Senator Joshua Hawley and Texas Attorney General Ken Paxton to discuss violent insurrection. Violent insurrection, also known as doing a coup, is a classical system of installing a government. Although widely believed to conflict in every way with the rule of law, violent insurrection can be an effective approach to upholding the principle of limited government. Senator Hawley will argue that the ends justify the means. Attorney General Paxton will explain that when the Supreme Court refuses to exercise its Article III authority to overturn the results of a free and fair election, calling on a violent mob to storm the Capitol represents an appropriate alternative remedy.

The main premise of the Stanford Federalist Society's complaint about Wallace's phony flyer was that recipients would think this was a real event, an assumption that hardly reflects well on the organization's reputation or the intelligence of Stanford law students. "Wallace defamed the student group, its officers, Senator Josh Hawley, and Texas Attorney General Ken Paxton," one of the group's officers (whose name is obscured in the copy of the email posted by FIRE) said in a March 27 complaint accusing Wallace of violating Stanford University's "Fundamental Standard," a code of conduct established in 1896. "Wallace, impersonating the Stanford Federalist Society, wrote on the flyer that 'Riot information will be emailed the morning of the event,' insinuating that the student group was encouraging and hosting a riot. He also wrote that Attorney General Paxton advocates for 'overturn[ing] the results of a free and fair election' by 'calling on a violent mob to storm the Capitol.' And he wrote that Senator Hawley believes that violent insurrections are justified."

The author of the complaint seemed to have a weak grasp of how parodies work. "Wallace clearly impersonated the Stanford Federalist Society through his event flyer," the complaint says. "First, he included a line at the top of the flyer saying that 'The Stanford Federalist Society presents' the advertised event. Second, he included the Stanford Federalist Society's logo near the bottom of the flyer. Third, the body of the event flyer identified the Stanford Federalist Society as the host. Moreover, he used the same distinctive template that the organization uses to advertise its other (real) events. This template is easily recognizable to other students. Nowhere in his email, nor on his flyer, did Wallace explain that these representations of identity were false."

It is bad enough that a law school student representing an organization that believes "the state exists to preserve freedom" and supports "open debate about the need to enhance individual freedom" thought Wallace's political satire qualified as defamation, meaning it was illegal and a justification for court-awarded damages. It is worse that Stanford officials, who notified Wallace on May 27 that his diploma was on hold, took that claim seriously at all, let alone for more than two months.

In his June 1 letter to Assistant Dean Tiffany Gabrielson, associate director of Stanford's Office of Community Standards, Adam Steinbaugh, director of FIRE's Individual Rights Defense Program, notes that the university, as a private institution, is not bound by the First Amendment. But he argues that its unjustified investigation of Wallace violated Stanford's "commitment to freedom of expression."

The university's Fundamental Standard says "students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens." It adds that "students are expected to respect and uphold the rights and dignity of others regardless of race, color, national or ethnic origin, sex, age, disability, religion, sexual orientation, gender identity, or socio-economic status." But it also says "students are expected to uphold the integrity of the university as a community of scholars in which free speech is available to all and intellectual honesty is demanded of all."

As Stanford's Office of Community Standards explains, the university's commitment to free speech means that students cannot be punished merely for posting "something hurtful and offensive." Although "we sincerely hope that members of our community will express themselves in a respectful manner that does not cause harm to others," it says, "a commitment to academic and personal freedom means that many statements that may conflict with our ideals cannot be subject to discipline under the Fundamental Standard."

Even if the university's own policies allowed such punishment, the office notes, a California statute known as the Leonard Law "restricts Stanford's ability to discipline students for engaging in protected speech." That law, which Steinbaugh also mentions in his letter to Gabrielson, "holds private universities to the same [free speech] standard" as public universities.

In short, it should have been clear from the beginning that Wallace's satirical flyer was protected speech and that punishing him for it would violate both the university's promises and state law (whatever one might think of that law's merits). "That Stanford would initiate an investigation into a student for sending a satirical email to his peers would be laughable if the stakes weren't so high for a student on the cusp of graduation," Steinbaugh says. "Stanford's investigation into satire doesn't pass the laugh test. Satire is not defamation, and no university of any caliber should investigate whether it should be allowed."