BY HANK REICHMAN
Last week I posted to this blog a statement from Stanford University students, faculty and alums that called out the Stanford College Republicans (SCR) for instigating the widely publicized and controversial firing of a recent Stanford graduate by the Associated Press because of social media posts she had made that were pro-Palestinian. The statement called on the private university to reaffirm its community standards of behavior and initiate an investigation into whether the SCR had violated those standards and, if so, that it be issued “a strong warning explaining expectations for future activities.” The post generated a good deal of controversy in the comments, where critics suggested that the statement was itself an assault on the free expression of the SCR and, in that sense, equivalent to the SCR’s own actions. While I was careful in response to stress that my posting the statement “indicated neither approval nor disapproval of its content,” I essentially argued in response that this was largely a false equivalency and that an investigation might suggest that the SCR had gone beyond expression and, by effectively harassing the young alum, moved into a sphere of action that might well be impermissible in a private university, free speech principles notwithstanding. Nonetheless, I am happy to agree that, especially in today’s polarized climate, colleges and universities must be extremely careful not to threaten or silence expression even where such expression may be perceived by others, even by most, as hostile or potentially hurtful.
Of course, in a sense the debate was moot since Stanford has, to my knowledge, taken no action at all in response to the statement’s call or, for that matter, in support of its alum. But, it turns out, Stanford has not been shy about investigating the expression of a student who expressed a point of view quite different from that of the SCR. Today, the Foundation for Individual Rights in Education (FIRE) published a piece describing how Stanford has launched an investigation into law student Nicholas Wallace, set to graduate this month. “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.”
“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.”
Here’s what apparently happened:
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.
As FIRE explains, “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.”
So, apparently a call by hundreds of Stanford students, faculty, and alums to look into the coordinated social media campaign of a conservative political organization on campus that led to a young alum’s loss of job and perhaps her career in journalism can be ignored, one assumes in light of the university’s alleged commitment to free speech (see here), but a single satiric email from an individual law student is enough not only to prompt an inquiry but to hold up and perhaps block that student’s graduation.
Talk about double standards! It’s free speech for the SCR to run a despicable social media campaign aimed at getting a recent graduate with whom they disagree fired from her job, but it’s not free speech to mock the Federalist Society. But, then, the Federalist Society has money and clout (and is apparently totally hypocritical about its allegedly libertarian commitment to free speech) and so probably does the SCR. The signatories of the statement? Nicholas Wallace? Eh, not so much.
UPDATE: On the hypocrisy of the Federalist Society, this article in Slate by Mark Joseph Stern notes that in November Supreme Court Justice Samuel Alito addressed the organization’s annual convention where he complained of campus censorship, alleging an effort “to hobble the debate that the Federalist Society fosters.” Alito reported that student Federalist Society members say they “face harassment and retaliation if they say anything that departs from the law school orthodoxy.” Yeah, right. But, hey, you can judge for yourself. Here’s the flyer that Wallace sent as an email leading to the Federalist-inspired hold on his graduation.
UPDATE # 2: As Stern points out, “Stanford hasn’t *just* placed a hold on Wallace’s diploma. It has also forced him to undergo a disciplinary investigation in the middle of finals. And by withholding his degree, it is preventing him from taking the bar.” And then there’s this, which was circulated on the Stanford Law listserv today, and left me in stitches:
This ridiculous attack on free speech by Stanford is a good example of why I argue that the Fundamental Standard needs to be repealed, and replaced with a fair policy that actually specifies what violates the rules. Stanford’s Fundamental Standard is so vague that an absurd claim of defamation can be used to justify punishment. The use of defamation standards in campus conduct policies is a disturbing trend that poses a serious threat to free expression. It’s particularly ridiculous in this case, because no one can seriously claim that satire and ridicule is a violation of campus rules. But since Stanford’s Fundamental Standard can cover anything, it gives the administration broad discretion to punish anyone they want to.
This is reprehensible conduct on Stanford’s part. I am glad to see that FIRE’s timely intervention has caused the University to pull in its horns, discontinue the threatened investigation, and restore the full standing of the student in question.
My eyebrows were raised by Prof. Reichman’s previous Stanford post. It seemed to me remarkable that he had not, apparently, heard the expression “The process is the punishment.” This sorry episode will, I trust, provide a practical demonstration of the cogency of that maxim.
Humanities Professor is correct that I had not heard of the maxim “the process is the punishment,” but if I read it correctly, as a general rule I find it troubling at the least. To be sure, being married for many decades to a career public defender and having spent much of this century in the AAUP’s academic freedom program, I’ve seen my share of prosecutorial misconduct, overzealous investigations, and retaliatory discipline. That said, I much prefer to think of due process policies and procedures as more protective than they are punitive. Certainly the overwhelming majority of academic freedom cases taken up by the AAUP have centered around the absence of process rather than its abuse. Every day, in both academia and society as a whole, there occur incidents of misconduct and violations of law in which those accused are often guilty, while more than a few others are wholly innocent. Both groups benefit from due process provisions that, while undoubtedly flawed and too frequently bypassed, promise greater fairness both to the guilty and the innocent. It can be stressful and feel unjust to be accused of something and have to go through a sometimes arduous and frightening process in order either to demonstrate one’s innocence or to provide evidence of mitigation, but the absence of such processes is one critical hallmark of authoritarian rule, in both society as a whole and in institutions of higher education.
Stanford should have immediately rejected the ridiculous claim against Nicholas Wallace. The fact that they only dropped the charges once and on the same day–hardly a coincidence, I think–that their craven fealty to the power of the thin-skinned Federalist Society was revealed hardly demonstrates the truth of your expression. Stanford’s due process protections may well be inadequate, and they surely dragged their feet and mishandled this case, but imagine if there had been no process at all and some administrator had simply been free to discipline Mr. Wallace by fiat.
There is a third option beyond the two set forth here by Prof. Reichman—subjecting those who have done nothing wrong to “a sometimes arduous and frightening process in order…to demonstrate one’s innocence,” or acquiescing in “authoritarian rule…in institutions of higher education.” That third way was expressed, clearly and commendably, by the then President of the University of Alaska system in 2001, when a clamor was raised for an investigation of a tenured literature professor on foot of a poem she had recently published. The President responded to these demands with the following public statement:-
“Attempts to assuage anger or to demonstrate concern by qualifying our support for free speech serve to cloud what must be a clear message. Noting that, for example, ‘The University supports the right to free speech, but we intend to check into this matter,’ or ‘The University supports the right of free speech, but I have asked Dean X or Provost Y to investigate the circumstances,’ is unacceptable. There is nothing to ‘check into,’ nothing ‘to investigate.'”
That is what Stanford should have said on this occasion—and, I believe, what it should have said in response to Prof. Reichman’s petition also. So long as it takes that stance in respect of *all* pressures to investigate students, faculty or staff for their exercise of constitutional rights, it stands on the firm ground of principle, and avoids the temptation of lapsing into the application of double standards against which Prof. Reichman reasonably protests.
Well, of course, there are multiple options and certainly the stance you advocate is the kind of thing that colleges and universities should do in cases, like this one, where the call for discipline is a direct assault on free speech or academic freedom. I have said this in numerous contexts, for example in discussing the admirable stance taken by then-provost Kent Syverud at Syracuse in the Dana Cloud case (see The Future of Academic Freedom, p. 87). Opinions differ on the SCR case, but let me note that the petition posted was not my petition–I was neither a signatory nor a sponsor–as Humanities professor falsely suggests (“Prof. Reichman’s petition”). Indeed, for I think the fourth time let me again state that by posting that statement (which included far more, by the way, than its call for an investigation) I “indicated neither approval nor disapproval of its content.” Moreover, I might note that unless there is something going on behind the scenes of which I am not aware, it appears that Stanford has taken the attitude of totally ignoring both that petition and the behavior of its student group, the SCR.
But my question remains: does Humanities professor believe that due process policies and procedures are the same as punishment, as the professor’s recommended maxim states? I hope not.
> let me note that the petition posted was not my petition–I was neither a signatory nor a sponsor–as Humanities professor falsely suggests.
I am happy to accept the correction. The entire manifesto was written in the first person plural, so the error on my part was, perhaps, understandable, if nonetheless avoidable. For that reason, had I been in Prof. Reichman’s position, I might have chosen the word “mistakenly” rather than the more confrontational “falsely.” But, as noted on this blog and elsewhere, we are living in highly polarized times, when it is instinctive to assume bad faith on the part of one’s interlocutors, rather than the reverse.
I can hardly believe that Prof. Reichman truly thinks I can perceive no difference between “due process policies and procedures” on the one hand, and “punishment” on the other. However, neither are they entirely separate. The existence of so-called SLAPP suits, and the various state laws enacted to restrain such abuses of process, are evidence of that. Likewise, the willingness of university administrators to take actions against employees or students that they must know from the outset are flagrantly illegal, or even unconstitutional, is almost impossible to explain other than in terms of a desire to harass or intimidate under the guise of conducting an investigation. Innumerable examples of this dynamic in action may be found on the FIRE website, and no doubt still others are known to the AAUP itself.
All of this may be avoided by taking the principled position that the lawful speech of others is no business of the university’s to seek to regulate, and that the place in which to determine whether it is indeed lawful is the civil or criminal court.