Free Speech in Crisis at Stanford Law School

By Dan McLaughlin

Saturday, June 05, 2021

 

Stanford University recently threatened a liberal law student’s ability to graduate over a satirical post to an email listserv aimed at the campus chapter of the Federalist Society. Fortunately, the school has now backed down. This is yet another story of academic disciplinary systems run amok against free speech. The hero of this tale is the indispensable Foundation for Individual Rights in Education (FIRE), which fights for student rights to free speech, religious liberty, due process, and freedom of conscience on campuses across the country. Given the political climate on today’s campuses, that means that a lot of FIRE’s work is on behalf of conservative students, but as this case illustrates, FIRE will take on the campus censors to protect speech from all different perspectives.

 

The chief villain in the story is the university’s cowardly, brain-dead complaint system, the staff of which acted so unreasonably in this case that they even came under fire from the dean of Stanford Law School. The press, interested primarily in score-settling against the Federalist Society, has focused mainly on the involvement of the three law-student officers of the Stanford Federalists in triggering the disciplinary process. Those students did, in fact, have a legitimate reason to be aggrieved — but they crossed a line by invoking the disciplinary machinery of the university. There are lessons all around about how we should go about protecting free speech on campus.

 

The Riot Act

 

The controversy began on January 25, a few weeks after the January 6 Capitol Riot. Nicholas Wallace, a third-year student at Stanford Law, created a satirical poster purporting to be a Federalist Society event on “The Originalist Case for Inciting Insurrection.” The event claimed to feature Missouri senator Joshua Hawley (a Stanford Law alumnus) and Texas attorney general Ken Paxton, hosted by the Stanford Law student chapter of the Federalist Society.

The flyer promised to hand out “riot information” and give out Grubhub coupons, and explained, “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.” The flyer took pains to imitate the design and cadence of a Stanford Federalist Society event, down to the logo and formatting. You can see it below:

A modestly careful reader would notice that the event was dated January 6, the date of the riot, rather than a date in the future. Sadly, many people these days are not modestly careful readers.

 

In a saner time, the flyers would have been posted around the campus. Instead, Wallace posted them to a Stanford email listserv, and the drama escalated from there. Judging from the negative comments he received that day, the people who were immediately offended were thin-skinned left-leaning law students triggered both by the satire and by the very existence of Federalist Society debates on the campus. One wrote, “If cannibalism were a real, widespread fear among people in your society, then I think A Modest Proposal would be inappropriate to email to everyone en masse, under the guise of a legitimate organizational proposal.” There was also discussion of “*why* so many students believed this was a real event.” Another: “To those of you made to feel unsafe by this fictional event, I invite you to likewise reflect on the actual events hosted by the Federalist Society that have threatened our classmates’ wellbeing,” citing speakers critical of DACA and DAPA:

 

For the sake of “academic freedom,” our undocumented classmates must bear the trauma of attending an institution that welcomes speakers actively working to remove their right to remain in the country…I hesitate to draw the line of what is acceptable discourse at pointing out the Federalist Society’s complicity in this issue, even if done so satirically and at our discomfort. Our policy, as recently reaffirmed by Dean Martinez, is to promote discussion despite discomfort. I ask only that you reflect on the momentary dread you felt as an example of the cost of “academic freedom” we impose on our BIPOC and undocumented classmates.

 

The scare quotes around academic freedom are a nice touch. Clearly, a good deal of the initial blowback that Wallace faced was from people who read his parody and thought, at least at first glance, that this was a real event, and did not think they should be subjected to that brief moment of witnessing an advertisement for disagreeable speech.

 

It did not end there. Someone posted the flyer to a national Facebook group of law-student memes. Someone else shared a screenshot on Twitter. That made the thing go viral among gullible left-wingers who assumed that there was actually a pro-insurrection event hosted by the Stanford Federalist Society, to the point where it made national news within days. On January 27, Chelsey Cox, USA Today’s famously humorless fact-checker, delved into the flyer, framing “The claim” as “The insurrection at the U.S. Capitol was an event hosted by the Stanford Federalist Society.” Cox concluded: “We rate this claim SATIRE, based on our research.” Ya think?

 

In March, three officers of the Stanford Federalist Society filed a formal complaint with the university’s Office of Community Standards. It is unclear whether they were acting on their own, or with the support of other members of their group (the Stanford Federalist Society did not respond to my request for comment). If you read the complaint, it is clearly concerned not with mockery but with impersonation, as evidenced by the number of people who actually believed it advertised a real event. It noted that “other student groups have asked to cancel joint events planned with the Federalist Society as a result of the controversy created by this email.”

 

That is a legitimate concern, given that the students are not public figures; the problem is with the disproportionate nature of the response. If their complaint had, say, asked the law school to issue a statement that the flyer was satire and did not reflect the views of the Stanford Federalist Society, it would have been an entirely fair way to address the problem — meet speech with more, louder speech.

 

Instead, the complaint entirely bypassed the law school, and instead engaged the university-wide disciplinary system, which — apparently after some further prodding from the three complainants two months later — ended up acting with the blind, ham-fisted inhumanity so characteristic of university disciplinary authorities and the mostly left-wing petty tyrants who run them. Wallace, hearing for the first time in late May that there had been a complaint filed against him, was abruptly informed that a hold had been placed on his diploma, which in turn would jeopardize his ability to take the bar exam over the summer.

 

There is no justification for that. Legal systems that give complainants an open-ended power to impose grinding processes without any human review to distinguish harassing complaints from real ones are a menace. The Stanford system is a standing invitation to abuse, and it was abused here in ways that it was designed to be abused, just by people with different views from traditional complainants. And satirists are not responsible for the fact that some of their audience is just too dumb or too hasty to tell the difference between news and a joke.

 

That is when FIRE got involved, sending a detailed letter to the university on June 1, laying out why the flyer was speech protected by California law and the university’s own stated policies (the First Amendment does not apply to private colleges), and issuing a press release on June 2 about the case. Media coverage followed from Mark Joseph Stern of Slate, who focused on using the story as a club against the Federalist Society as a national organization. As the Stanford newspaper noted:

 

Later that day, a petition calling for the University to immediately drop the investigation and stand in solidarity with Wallace garnered more than 400 signatures and many critical messages from students, alumni and faculty members from both within and outside the law school. A number of students and faculty members threatened to boycott the law school graduation, place holds on their Stanford law degrees or resign from their faculty posts if the hold on Wallace’s diploma was not lifted.

 

Hawaii Senator Brian Schatz (D.) amped up the pressure on Stanford in the evening of June 2, solely because he felt that the target of the disciplinary proceedings had righteously attacked the Federalist Society.

 

Two hours later, Stanford told Stern it was folding, and FIRE declared victory the next day. The story then took off in the New York Times and the Washington Post. Legal-industry blog Above the Law kicked up a side controversy by naming the three students who filed the complaint and targeting the judges for whom they are clerking after graduation, plainly in the hopes of turning this back into a more conventional cancel-culture story.

 

Stanford Law Dean Jenny Martinez, in a mass email to the Stanford Law community, went out of her way to distance herself from the university, noting that she had been cut completely out of the loop of an issue affecting her own students and pledging to change the system:

 

I personally first learned about this complaint on Tuesday, June 1 and the university resolved the matter on Wednesday, June 2 concluding that this was constitutionally protected speech and ending the complaint process. Unfortunately, some of the media coverage yesterday and today mistakenly attributes the university process to Stanford Law School. No one in the SLS administration had any role in placing the graduation hold, and we were shocked when we learned about it. I would never have approved such a thing. . . . I think it is imperative that we take action to ensure that something like this does not happen again and will be working with faculty colleagues at the law school and around the university to do that.

 

Martinez, to her credit, argued that free, open, raucous, and quarrelsome speech should be protected for everyone on the law school’s campus:

 

I also want to say how upsetting this is to me personally. A commitment to First Amendment rights is part of why I became a lawyer. My first experience with the law was as a high school student when my high school censored the school yearbook and as a mock trial student, I started a protest in support of the speech rights of the yearbook (and had my pamphlets on the First Amendment confiscated by the vice principal). In college, as a student journalist, I worked for a summer at the Student Press Law Center defending the free speech rights of students. And through my service on the board of an NGO, I spent substantial time over the past decade working on freedom of expression issues globally. It is crystal clear to me that, as the university concluded yesterday, the satirical flyer is constitutionally protected speech.

 

I have received many requests this year to condemn, punish, or otherwise suppress speech, from all sides of the political spectrum. I want to reiterate that I will not be entertaining any such requests. Experience shows us the costs of policing speech are too high, and that vigorous and open debate of ideas is essential to a free society. While I urge thoughtfulness as people choose how to exercise their First Amendment rights in a community dedicated to learning, ultimately individuals must be guaranteed a broad range of freedoms to decide what their conscience and values dictate. I will continue to work to ensure that this is the case at Stanford Law School.

 

Fighting Fire with Fire, or FIRE?

 

Why was there such an uproar about this case? Because, for once, Stanford conservatives were using the left’s own tactics against its own — acting like progressives instead of conservatives. As the Stanford paper noted:

 

Community members’ criticisms of the investigation come nearly two weeks after a social media campaign orchestrated by the Stanford College Republicans (SCR) precipitated the firing of Associated Press news associate Emily Wilder ’20. The incident ignited a new round of discussions over the University’s responsibility to discipline student organizations that threaten the safety of community members. . . . The University’s investigation of Wallace came during a period of heightened scrutiny of the bounds of protected speech within the Stanford community. In recent weeks, hundreds of Stanford faculty members and students have urged the University to initiate a Fundamental Standard investigation into SCR’s attacks on Wilder, which some have labeled as harassment.

 

While the Stanford College Republicans had made news by dredging up Wilder’s record as a pro-Palestinian activist on campus before her graduation in 2020, the Wilder case involves a distinct set of issues involving a reporter who tweeted, while working for the AP, an attack on the very idea of news objectivity.

 

What the Stanford Federalist Society officers did was wrong. But it was wrong because it invoked an abusive process designed by the Left, for the Left, using the tactics of the Left. If there is any defense for their actions, it is that they were following Saul Alinsky’s dictum of making the enemy live up to its own rulebook. And they may have accomplished some backhanded good for free speech at Stanford. There is zero chance that the Times, the Post, or Slate would have been interested in this story if the roles were reversed and Federalist Society students were facing suspension of their diplomas for satirizing campus liberals. I’d like to think that Dean Martinez’s commitment to free speech would have been the same, but we can’t know that, either. Wallace, for his part, came away vowing to fight for freedom of expression and a fairer process on the Stanford campus — a win for conservative values.

 

Free speech is a social value as well as a legal right. Speech that crosses lines should be criticized and rebutted, not suppressed or sanctioned. Liberals have failed, catastrophically, to impart that value to the next generation. Conservatives should not make the same mistake; the Federalist Society law students in this case ought to learn the lesson that this is not the right way to respond to satire. But if it took a case such as this to teach Stanford University that it can actually be bad to punish people for speech, maybe there is a lesson there, too.