Jurisprudence

Update: Law Student Who Made Fun of the Federalist Society Will Be Allowed to Graduate After All

Stanford University campus Law School.
Stanford Law School. Mx. Granger/Wikipedia

Update, June 2, 2021, at 9: 30 p.m.:  Stanford has concluded that Nicholas Wallace engaged in protected speech, dropped its investigation, and lifted the hold on his diploma. Wallace has confirmed that he will be allowed to graduate.

On Jan. 25, Nicholas Wallace, a third-year student at Stanford Law School, sent a satirical flyer to a student listserv reserved for debate and political commentary. The flyer promoted a fake event, “The Originalist Case for Inciting Insurrection,” ostensibly sponsored by the Stanford Federalist Society. It advertised the participation of two politicians who tried to overturn the 2020 election, Missouri Sen. Joshua Hawley and Texas Attorney General Ken Paxton. “Violent insurrection, also known as doing a coup, is a classical system of installing a government,” the flyer read, adding that insurrection “can be an effective approach to upholding the principle of limited government.”

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Wallace’s email was designed to mock the Stanford Federalist Society for refusing to disavow the many Federalist Society luminaries who fomented the storming of the U.S. Capitol on Jan. 6, including Hawley and Paxton. It worked: The flyer went viral, prompting USA Today to confirm that it was, indeed, satire. But the Stanford Federalist Society was not amused. In March, one of the group’s top officers filed a complaint against Wallace with Stanford’s Office of Community Standards. (This person’s name has been redacted from all documents.) The student alleged that Wallace’s satire “defamed” the Stanford Federalist Society, causing “harm” to the student group and to the “individual reputations” of the officers.

Then, on May 22, with graduation looming, the Stanford Federalist Society officer pushed the school to initiate a formal investigation. Wallace did not receive the complaint against him until May 27, his last day of classes. Stanford then placed a hold on his degree, prohibiting him from receiving his actual diploma at graduation on June 12. It has continued to investigate him for “a possible violation of the Fundamental Standard,” the school’s code of conduct, subjecting him to the same procedures that suspected plagiarists must undergo. The hold on his diploma has jeopardized Wallace’s plans to take the Michigan bar exam this summer; the state bar requires applicants to send their diplomas immediately upon graduation, which he will not be able to do.

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On Tuesday, the Foundation for Individual Rights in Education sent a letter to Stanford urging the school to “immediately abandon its investigation and commit to procedural reforms to protect the expressive rights Stanford promises to its students.” FIRE pointed out that California’s Leonard Law requires private universities to comply with the First Amendment, and there is no real question that Wallace’s email is shielded by the First Amendment. The Supreme Court has held that satire, including offensive and hurtful expression, constitutes protected speech, and Wallace’s email is obviously satirical. “No reasonable person familiar with the email’s context would understand it to be sincere,” FIRE wrote, noting that it advertises an event that occurred 19 days earlier and is “laden with figurative language intended to impugn national political figures.”

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Because Wallace’s email is free speech shielded by the First Amendment, Stanford has no authority to punish him. In fact, Wallace can sue in state court to prevent the school from taking any adverse action against him, and collect attorneys’ fees if he prevails. While Stanford has not yet issued any formal punishment, FIRE alleges that “Stanford’s investigation itself” creates a chilling effect in violation of the law. (The school did not return my requests for comment on Wednesday.)

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Indeed, the Federalist Society’s complaint has already imposed a severe burden, forcing Wallace to navigate a complex disciplinary process in the midst of finals. On Wednesday, Wallace told me that the Stanford Federalist Society’s complaint “feels retaliatory” in light of his public opposition to the group. In March, Wallace helped to plan a virtual event at which I spoke about the Federalist Society’s many links to the insurrection. The Stanford chapter’s officer filed the complaint several weeks later—at which point two months had passed since Wallace created the satirical flyer.

This retaliation against Wallace’s speech marks the height of hypocrisy for a member of the Federalist Society, which regularly champions free speech on campus—though usually for conservatives. In November, for instance, Justice Samuel Alito delivered a speech to the organization’s annual convention railing against campus censorship as well as the alleged effort “to hobble the debate that the Federalist Society fosters.” Alito also claimed that law school students who are members of the Federalist Society tell him they “face harassment and retaliation if they say anything that departs from the law school orthodoxy.”

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Now, however, it is Wallace who faces harassment and retaliation. A leader of his own school’s Federalist Society chapter has responded to political commentary by imperiling the speaker’s ability to graduate and take the bar. And rather than reject the complaint outright, Stanford is investigating his legally protected speech as a possible violation of the university’s rules.

“It has been a pretty awful way to close out my career at Stanford,” Wallace told me. “Instead of studying for finals, I’m trying to figure this out. I just sent an email to my family trying to reassure them that I haven’t blown it in my last few days at Stanford.”

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