Free Speech

Foundation for Individual Rights in Education on the Stanford Federalist Society Satire E-Mail

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FIRE gets it right, I think; this shouldn't even have yielded a formal investigation, much less a hold on the student's diploma. (Not entirely on point, but it reminds me of my favorite political satire case, New Times, Inc. v. Isaacks (Tex. 2004), where libel law met Where the Wild Things Are.)

Law student's graduation in jeopardy as Stanford investigates satirical email lampooning Federalist Society, Sen. Hawley, and Jan. 6 [UPDATED]

UPDATE (9:36 P.M.): Stanford's Office of Community Standards informed Nicholas this evening that the investigation will be closed and the hold on his diploma released, belatedly determining that his email was protected expression. Stanford's statement says that it followed "normal procedures" and "consulted with legal counsel after we obtained the relevant facts." If "normal procedures" and review by a university attorney let an investigation into political satire proceed, something is wrong with the procedures. It should not take outrage from Twitter and a United States Senator to protect political satire at any institution of higher education of any caliber.

STANFORD, Calif., June 2, 2021 — Stanford University law student Nicholas Wallace was set to graduate this month, but his degree is now in jeopardy. After receiving a complaint about a satirical email that Wallace sent to his peers in January, Stanford launched an investigation into Wallace. His degree is now on hold while the university determines whether he violated school policies by mocking Sen. Josh Hawley, Texas Attorney General Ken Paxton, and the law school's chapter of the Federalist Society.

The Foundation for Individual Rights in Education demanded Tuesday that Stanford release the hold and refrain from further investigation into or sanctions against Wallace. FIRE also asked Stanford to commit to screening student complaints to determine whether they involve protected speech before initiating investigations into student expression.

"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," said FIRE attorney Adam Steinbaugh. "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."

On Jan. 25, Wallace sent an email to a student listserv, borrowing from previous emails advertising Federalist Society events, purporting to invite students to attend an event — to be held 19 days earlier, on Jan. 6 — at which two Federalist Society members, Sen. Josh Hawley and Texas Attorney General Ken Paxton, would be the keynote speakers. The event, the "Originalist Case for Inciting Insurrection," would discuss "doing a coup" and the "classical system of installing a government." The email further said Hawley and Paxton would discuss "violent insurrection" as "an effective approach to upholding the principle of limited government."

Two months later, an officer of Stanford Law's Federalist Society filed a complaint against Wallace, claiming that he had "defamed" Sen. Hawley, Attorney General Paxton, and the student group, because he "impersonated" the group and insinuated that they would promote violence. After the Federalist Society officer confirmed to Stanford administrators on May 22 that he wanted to proceed with his complaint, Stanford initiated an investigation into Wallace and put a hold on his diploma two weeks before his law school graduation. If the hold is not released, Wallace will not receive his degree as planned on June 12.

"The timing of all of this could not be worse," said Wallace. "Instead of focusing on my finals and celebrating graduation with my classmates, I am navigating a confusing judicial process and trying to convince Stanford to lift the hold on my degree."

In Tuesday's letter to Stanford, FIRE explained that Wallace's email was satirical, parodying Federalist Society events in order to criticize the group and its relationship with elected officials who supported then-President Trump's efforts to block certification of the election. As FIRE's letter explains, the email is protected by Stanford's own promises of free expression and by California law. Not only did Wallace send the email 19 days after the Capitol violence took place, but he also sent it to a commentary-focused listserv and not the listserv for campus announcements that is used to promote genuine Federalist Society events. Given this context, the email was clearly satire that criticized Federalist Society leadership, not a sincere claim that Sen. Hawley and Attorney General Paxton would appear at Stanford to promote a riot.

Though a private institution and thus not required by the Constitution to protect free speech, Stanford promises free expression to its students both in its formal policies and on a website specifically dedicated to promoting the school's free expression commitment. Additionally, a California law dubbed the "Leonard Law" bars most private colleges from disciplining students for any speech that would be protected by the First Amendment. Satire might hurt the feelings of its target, but it is protected speech under the First Amendment.

"Stanford is claiming that Wallace's email was not protected expression under the Leonard Law, but that is simply untrue," said Steinbaugh. "We call on Stanford to follow the law and live up to its promises of free expression so that all Stanford students, present and future, can criticize politicians and colleagues alike without fear."

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  1. Referenced this action in a Comment. The remedy? Shut down Stanford Law School.

    1. absolutely!
      Common Sense Law School Control!

      (for the children)

  2. I would not mind seeing the name of the Fed. Soc. officer (who–after the first complaint–had the time to thoughtfully consider the situation and to then insist on continuing with a formal complaint). Given this student’s dubious understanding of the First Amendment and of free speech in general; he might not be qualified for most types of lawyering.
    (On the other hand; maybe he’d be perfect for in-house at a university.)

    Not Stanford’s finest hour. (But kudos to FIRE, for getting this 100% right.)

    1. My take is quite different — if the left wants to promote academic censorship, the left is going to have to live with it.

      My guess is that the person who complained had self-censored out of fears of a similar response — and what would Stanford have done with a similar email parody of Kamala Harris & BLM…. So why not take a page out of _Rules for Radicals_ and use the left’s rules against it?

      1. That’s the Trump playbook right there.

        The Left is gonna subvert the Constitution! The Left is gonna subvert the Constitution!

        So we gotta do it first.

        1. The Left has already subverted the Constitution, particularly in colleges. That’s why college campaigns like sexist investigations and persecutions of people accused of intimate misconduct have been getting thrown out by courts across the country.

          1. Ah yes, can’t forget the ‘the left long ago subverted the Constitution, as I define it!

            So we get to ignore it in order to preserve it.’

            1. Isn’t the only issue whether or not the satirical email violated Stanford’s policy (as FIRE argued, it does not)?

              This doesn’t seem like a constitutional issue at all since Stanford is a private university.

              The only legal issue I could see is if the email was defamatory, but if it was obvious satire then that question is easily answered.

              1. California has a law (the Leonard Law) that applies the First Amendment to private high schools, colleges and universities.

    2. How do the actions of a private actor reflect on any student’s understanding of the First Amendment? It doesn’t say “Universities shall not…”

      1. Claiming satire is defamatory, and therefore the basis of a potential lawsuit, shows a bad understanding of first amendment law. Also California has a Leonard law which applies first amendment principles to private colleges.

        1. Leonard law? That is a term I’ve not heard before. I’ll have to look that one up.

          1. There’s a link in the text Eugene posted from
            FIRE.

            1. We need this law in the People’s Republic of NJ. Pronto!

    3. No, I think the Fed Soc officer did the right thing. We now have Stanford Law School on record admitting that satiric messages are not grounds for academic punishment.
      Liberals do this all the time. Look at Griswald v. Connecticut. They engineered an arrest and prosecution under a law they wanted invalidated. They got the courts to do their bidding. Similar situation here.

      1. All evidence is that this was short-sighted spite, not some 3-D chess tactic.

        1. If it’s 3-D chess that makes it even worse to me. “I’m going to put someone else at huge risk on the huge assumption nothing bad will happen to them (and cause them stress in the meantime) so that my tribe might be protected in the future” is some pretty sociopathic reasoning.

          1. Helluva good point. I missed the humanity for the policy!

          2. Meh. If the “tactic” mitigates greater future harm, why not? Assuming that that’s what it was.

            1. Glad to hear you’re willing to be a test case, willing to risk it all for the greater good.

              1. No. I think somebody on the other side should be the test case. You know, their rules and all.

                1. Utilitarianism does not get more moral when you make it partisan.

                  1. I think it’s pretty obvious that this wasn’t some 3D chess move. But if the original complainer came out publicly saying that he did NOT want this student’s diploma withheld, and that the point of the complaint was to clearly establish a free speech rule that would then apply to all sides of every political issue… then I wouldn’t consider that to be immoral.

                  2. Nothing immoral about complaining. The federalist student was merely exercising his freedom of speech.

                    The bad guys here are Stanford.

      2. Terrible analogy. The defendants in Griswold knew what they were getting into. Here, the FedSoc decided to risk someone’s career and cost them money without their consent. Making test cases by risking harm to someone else is a really shitty thing to do.

        1. More accurate to say that my analogy was inaccurate and that would be fair.
          I stand with the Fed Soc officer in this case. It is fair to insist that liberals and progressives be held to the same standard that conservatives are held to. Progressives have been filing complaints and using various disciplinary systems to silence or punish conservatives. It is fair for conservatives to use the same disciplinary systems in the same way.
          This calls to mind what the Citizens United case was really about. Michael Moore released a film in 2004, FAHRENHEIT 9/11 that was created with the specific intent to harm GWB’s campaign for re-election. The film was produced and released based on a combination of charitable and non-charitable funding. When conservatives filed complaints with the FEC and the IRS arguing that release of the film was as scheduled prohibited under the then existing campaign finance reform laws, the government agencies ruled that release of the film was not prohibited.
          So Citizens United decided to test those government actions by replicating Moore’s film (both in the way it was financed and the way it was released) but targeting a Democrat. Surprise surprise, the IRS and FEC ruled that release of the conservative film WAS prohibited by the campaign finance laws. Different results under the same facts; a film targeting a Republican candidate is allowed and a functionally identical film targeting a Democratic candidate is disallowed. This was a good reason for the Supreme Court to act…either both films should be allowed or both films should be disallowed. The high court took the former position.

        2. Sometimes, the only way to clear a path for fair treatment is to force the establishment to act. That is what the Fed Soc did here. It forced the law school administration to act. Then everyone could argue whether the action was correct. In the end, we get a decision that is legally correct.

        3. Just to be clear, this was a single member of the FedSoc making the complaint, and not the FedSoc themselves taking a position on the matter, right?

          Or do I have that wrong?

          1. The last sentence on the complaint says “And we as officers of the organization, feel that our reputations have been harmed.”

            So even if one sent it, it purported to be on behalf of the group. And it does not appear that the group made any attempt to disavow it.

            1. But it’s still officers of the local chapter only I presume.

              It is unfortunate that the FedSoc itself hasn’t made their position clear. I can’t imagine they want this kind of free speech infringed on in general. The only reasons I could imagine them justifying such a complaint are:

              1) they disagree about the content of the email being obvious satire, and they believe they could suffer damage from people misinterpreting it.
              Or
              2) they want to make sure that Stanford’s policy, whatever it might be, is enforced equally regardless of political persuasion.

              I think 2 is a mistake unless they make clear what their preferred policy for universities actually is.

  3. People still think that’s a coup or an insurrection? Wow that is some serious drugs you’re taking if you think that.

    1. What else do you call the killing of an unarmed woman?

      1. In the case in question, certainly neither coup nor insurrection. I’d probably call it another case of cops getting away with murder (or at least manslaughtet).

    2. What do you think would have happened if any of the rioters were able to physically touch a congressperson?

      1. There was never much danger of that. January 6th was no more an insurrection than June 1st of last year — when violent protesters attacked a federal building, with the apparent intent of harming federal officials and officers inside, and injured hundreds of law enforcement officers trying to keep order. On both days, a robust law enforcement response was delayed significantly by not having the right resources on hand. But June 1st followed several days of similar rioting, so it was much more foreseeable.

        1. So it’s not an insurrection because it was stopped?

      2. What do you think would happen if someone didn’t just touch a congressman, but shot him? Is that a coup?

        Looking at 6Jan, let’s fill in the blanks here:

        1)Grab Pelosi, McConnell, …
        2)String them up.
        3)…
        4)…
        5)…
        6)Take over the country.

        Because what I see as the likely #3 is ‘either negotiate with the arriving SWAT teams and surrender, or die when those SWAT teams do the hostage rescue thing they practice so much’.

        What I don’t see is even a hint of the usual steps like ‘seize the radio stations’, ‘get control of the police and armed forces’, ‘announce a curfew’, ‘proclaim that the Patriotic Council (sic) will be governing by decree “pending elections”‘ etc, etc. I don’t just see even inept planning for those steps, either on 6Jan or the Scalise shooting.

        TBH, I really don’t get why people seem to think there is some political advantage in labeling it as a coup. We all know the facts.

        1. You don’t need a well thought out plan to be an insurrection. All evidence is they were organized, but not exactly strategic thinkers.

          1, and then 2 are rather bad enough.

          1. “You don’t need a well thought out plan to be an insurrection.”

            I disagree. I just stepped out on the front porch and announced that I have just appointed myself Emperor, and you are all now my subjects. If you call that a coup, you’ve devalued the term into meaningless.

            See, for example, the 1859 coup where Norton I took over the United States. He even issued his own currency, which was farther along than the 6 Jan folks got.

            “1, and then 2 are rather bad enough.”

            We’re in fervid agreement there.

            1. No one really had a plan when they stormed the Bastille either.

              1. The pre-Napoleon French Revolution isn’t something I have studied much, but from the wiki article: “On the morning of 13 July, the electors of Paris met and agreed to the recruitment of a “bourgeois militia” of 48,000 men … The partisans of the Third Estate in France, now under the control of the Bourgeois Militia of Paris (soon to become Revolutionary France’s National Guard), had earlier stormed the Hôtel des Invalides without meeting significant opposition.[25] Their intention had been to gather the weapons held there (29,000 to 32,000 muskets, but without powder or shot). The commandant at the Invalides had in the previous few days taken the precaution of transferring 250 barrels of gunpowder to the Bastille for safer storage”

                So, organized groups forming, numbering in the thousands of troops, seizing thousands of muskets at one location then going to another location to get the powder to match the muskets … seems more organized than shaman-man in the fur headdress.

            2. The idea that all insurrections are well-situated strategically doesn’t track to me.

              Your examples are all individuals speaking, which I think is telling.

              1. I know that defining “coup” in this context usually just turns into a partisan argument. But I think it’s kind of interesting if we really try to conduct the conversation objectively in order to reach the best definition of the term.

                My instinct is that it does probably have more to do with intent than effective strategy. But from the point of view of the “insurrectionists” were they trying to institute a coup or prevent one? Does that version of intent matter?

                Is it still a coup if you’re (perhaps totally mistakenly) trying to preserve democracy FROM a coup?

                Just for the purpose of the debate, what if at some point we discover that the Trumpists were totally right and the election results were fraudulent… was it still a coup, because they were still trying to change the “official” results that the current government was presenting?

                Perhaps so. But then the topic shifts to whether or not it was a justifiable attempted coup.

              2. “Your examples are all individuals speaking,”

                OK, CHAZ/CHOP in Seattle last summer. They seized more territory and held it a lot longer than the 6 Jan types, yes?

          2. 1, and then 2 are rather bad enough.

            He’s also ignoring what their “plan” (more of a notion than a plan) was: to force the Congress-hostages to declare the electoral college for Trump, or at least to delay the counting in favor of Biden to give Trump a chance to overturn the results. No, that’s not the way it works, but they didn’t know that.

            1. No, not really ignoring. Let me put it like this: imagine ranking insurrections along an axis of seriousness, with me announcing that I’m in charge from my porch at the low end, and a successful revolution at the other (Castro rides into Havana, Cornwallis surrenders to Washington, Chiang flees to Taiwan, …). In the middle there are things that weren’t successful but were clearly insurrections – the Confederacy, the Mau Mau, the Malay insurrection, etc. Those were long lived, widespread, and organized, and very definitely had a plan for taking over. Farther toward the low end we might find John Brown’s raid at Harper’s Ferry[1], or when the Weathermen bombed the Capitol, the Pentagon, etc. All of those had a persistent group of plotters and a plan for taking over – they weren’t an inchoate mob temporarily running amok. They also had zero chance of success.

              And on that axis, I don’t think that the 6Jan wackos had long term plan, they weren’t a cabal trying to organize a campaign to take over, etc. They were more spontaneous lynch mob than KKK. In that sense, it was less of an attempt at fomenting an insurrection than, say, the Weathermen. And I don’t think it’s useful to label something that de minimis as an insurrection, because then you end up calling the Weathermen (the various Bundy affairs, Montana Freemen, CHAZ/CHOP, …) insurrections, and the term has been devalued into irrelevance.

              YMMV, of course!

              [1]if I have the story right, his plan was to seize guns, arm slaves, and have a slave rebellion sweep the south.

      3. Nothing of consequence to the holy Congresscritter. The rioter would have likely be charged with assault…even for incidental contact … ’cause that’s the type of thing that powerful people make happen.

        But beyond that, nothing.

    3. What do you call a violent attempt to prevent the results of an election from being certified?

      I know. Tourism. Right?

      1. Participatory Tourism? 🙂

      2. Mostly peaceful tourism.

        1. Plenty of protests in DC on the 6th were peaceful.

          What happened at the Capitol was not peaceful, one picture taken in the Statue Hall does not prove otherwise.

          1. I heard it was a festival-like atmosphere.

  4. I wonder if this was someone parodying a “woke” organization if there would have been nearly universal support for telling the university it was stupid…

    1. Completely hypothetical hypocrisy is one of the most egregious kinds.

  5. Satire should be a little less dry.

    1. Satire should be bone dry, and written in a recognizably credible style. Facts asserted, and norms relied upon, ought to start out credible, but gradually get out of control—eventually, wildly out of control. It should all be presented deadpan. When the author gets calls asking, “Is it really true?,” the author should reply, “I recommend you re-read it carefully.” Or, “Did you look at the accompanying photographs?”—which should be blurry, badly underexposed, and no more informative than an ink blot.

  6. What are the odds we see Josh Blackman post about this?

    1. My general custom is not to post about a news story that a co-blogger has already posted about, unless I have something really new to say. (Sometimes two people compose posts at the same time, not knowing that the other is doing so, and we leave both up; but that’s not optimal, especially since it tends to break up the discussion among the commenters.) I expect most of my co-bloggers take a similar view.

      1. With respect, I don’t think that’s ever been Josh’s custom. Nor has it ever been the case that he doesn’t have something new to say about pretty much any topic.

        1. “Hey, look at me” isn’t really “something new.”

      2. Great, now Orin won’t post about the Van Buren decision because you beat him to it.

        🙂

      3. “I expect most of my co-bloggers take a similar view.”

        Even if true, how is that assertion relevant to a question about Prof. Blackman?

  7. “Sauce for the goose, Mr. Saavik. The odds will be even.”

    I don’t fault the Federalist Society for filing the complaint. I agree with the professor that the university did not have reason to conduct an investigation. But now there is a precedent so that if conservative students post a satiric email or message they will not be punished. Or at least, one can hope.

    1. I am definitely going to fault someone for attempting to derail a classmate’s career and possibly costing them thousands of dollars (missing the scheduled bar exam is not a cheap thing to have happen to you). That’s a garbage thing to do. Using it as a method to insure conservative students are protected might be even worse. People, aren’t objects to be experimented without their consent.

      1. Bleh that got mixed up. People aren’t objects to be experimented with without their consent.

    2. ” I don’t fault the Federalist Society for filing the complaint. ”

      Principle-deprived, partisan clingers are among my favorite culture war casualties.

      Open wider, Darth.

  8. Seems peculiar that nobody has mentioned the names of the people who complained to Stanford about the satire. Who were they? Why aren’t they mentioned?

    1. Outing and doxxing for thee, not for me.

      These are the same people who righteously look up those who sign petitions for voting propositions, so they can harrass them.

      But it’s righteous harrassment, not evil harrassment.

  9. It would be nice if the powers that be could dismiss a complaint without even looking into it. Or would it? The school’s procedures required at least some preliminary investigation, and the school quickly came to the right conclusion. So why the criticism of the school instead of the snowflakes?

    1. Because we don’t know the actual text and goal of the complaint.

      Filing a complaint requesting that someone take down a post pretending that you are calling for murder isn’t unreasonable. Free speech or no free speech, that’s outside of civil discourse. Add to it the fact that it could easily be taken out of context in the future. For the people involved, an official “this is wrong” statement or apology could be useful in the future.

      However, if they requested that their opponent have their graduation held up or called for his expulsion, then I would find the criticism reasonable.

      It wouldn’t be the first time an official took a complaint far beyond what the original complainant wanted to happen.

    2. “So why the criticism of the school instead of the snowflakes?”

      Because the school’s the one that put a hold on his diploma.

  10. https://www.thefire.org/stanford-federalist-society-complaint-re-nicholas-wallace/

    We actually do have the complaint. They didn’t say they only wanted it deleted or for him to retract. They just sent it knowing that anything could happen. They also probably knew that the process itself would be stressful in the last year as you’re getting ready for finals and the bar.

    More importantly, unless I’m mistaken, they didn’t appear to speak up that this form of punishment was overblown.

    1. Meant as a reply to Ben of Houston

    2. Okay, so FIRE redacted the names of the Federalist Society complainants. That is terrible reporting practice. Some readers will have a bit of knowledge about who they might be. Some may suppose they know—and thus mistakenly attribute the demand to someone who had nothing to do with it.

      When you know the name of someone involved in newsworthy activity, report the name, and spell it right.

      1. FIRE is a right-wing operation that masquerades about in unconvincing libertarian and nonpartisan drag. Its redaction of the identity of the conservative crybaby at Stanford was predictable, consistent with the pass it provides to right-wing campuses whose censorship is cloaked in childish superstition.

        1. That’s completely false, and even you ought to know better than to tell such brazen lies.

          FIRE publishes its actual case docket. You will see them defend plenty of liberals.

          1. FIRE is one of the most principled organizations out there.

          2. even you ought to know better than to tell such brazen lies

            I refer you to the fable of The Scorpion and the Frog.

      2. Is it lost on them the idiocy of calling out someone and naming them publicly, for something they said, while maintaining you, yourself, should not be called out publicly for something you said?

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