Justice News

Principal Deputy Associate Attorney General Jesse Panuccio Delivers Remarks at the Symposium on Free Speech & Campus Violence & Disruption
Chicago, IL
United States
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Friday, January 26, 2018

Thank you for that introduction, Professor Tenenbaum.  It’s my pleasure to be in Chicago today in place of Associate Attorney General Brand, who sends regrets that she could not make it.

 

Let me begin by commending you for hosting this symposium on campus free speech.  This is a vitally important topic, and, as you are probably aware, one that Attorney General Sessions has made a priority for the Department of Justice.  It is a priority because, in our view, many campuses across the country are failing to protect and promote free speech.

 

The Symptoms of the Free Speech Crisis

 

Nearly every month, we hear of new examples.

 

Many schools directly suppress speech through overt practices and policies, including speech codes.  One example is found at Clemson University in South Carolina, which bans any “verbal” act “which creates an … offensive educational, work or living environment.”  But who is to decide what is offensive and what is favorable, what is grating and what is good?  For example, does it create an offensive living environment at Clemson to say, “Go Gamecocks!”?  For many Clemson Tigers, I’m sure it would.  Administrators would likely dismiss any such complaint, reasoning that such a statement is not the kind of “offensive” speech they intended.  But that subjective judgment is the very problem.  Speech and civility codes like these, at public institutions like Clemson, violate what Justice Scalia rightly called “the first axiom of the First Amendment,” which is that, “as a general rule, the state has no power to ban speech on the basis of its content.” 

 

According to a recent survey by the Foundation for Individual Rights in Education, nearly one-third of institutions have speech codes that substantially infringe on constitutionally protected speech. Think about that for a moment: in the United States—the society that has been more protective of free speech than any in history—nearly one-third of institutions of higher learning ban certain speech.

 

And speech codes are just the beginning.  Some schools limit students’ right to freely express themselves to so-called “free speech zones,” which often comprise ludicrously small areas of campus.  These cramped zones are eerily similar to what the Supreme Court warned against in the seminal 1969 Tinker case about student speech: “Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven.”

 

On still other campuses, permit or permission requirements are another problem.  Such prior restraints make it easy to restrict speech based on its content under some other pretext.

 

But the speech-suppression tactic most visible, and most dangerous, in recent months has been campus acquiescence in the “heckler’s veto.”  The heckler’s veto occurs in two ways: either when campus authorities prohibit speech in advance, professing fear of how objectors might respond, or when authorities permit objectors to overrun speakers during an event without consequence. 

 

The events last year at Middlebury College are a stark example.  Student protestors violently shut down an event featuring an invited speaker and one of the school’s own professors.  As soon as the event began, the protestors shouted for twenty minutes, preventing the debate from occurring.  When the debaters attempted to move to a private broadcasting location, the protestors pulled fire alarms, stalked after them, surrounded them, and began physically assaulting them.  During the melee, one protestor grabbed the professor by the hair and twisted her neck.  She suffered a concussion and required a neck brace.  When the debaters tried to escape from this siege by car, the protestors pounded on the vehicle, rocked it back and forth, and jumped on the hood.  In short, to shut down an academic debate, Middlebury students engaged in a violent riot, potentially breaking numerous laws and causing serious injury.

 

In response, Middlebury merely placed a disciplinary note in some students’ files.  Not a single suspension.  Not a single expulsion.  Not a single arrest.  Students physically assaulted their professor, sending her to the hospital, and the most the school could muster was an apology and stern warning.  These protesters engaged in allegedly criminal conduct that should have been dealt with as such.  Instead, the administrators allowed an unruly mob to run the campus they are supposed to supervise.

 

And this was not an isolated incident.  Similar mob rule has broken out at Berkeley, Evergreen State College, and William & Mary to name just a few.  The William & Mary event was particularly telling, because the speech that the mob shut down was by an ACLU official on the topic of…free speech.

 

To be sure, protesting or otherwise challenging a speaker can be, in and of itself, a valid exercise of free speech and can help create the kind of debate that is the bedrock of American society, and as relevant here, academic inquiry.  But that’s not what’s happening on college campuses today.  As some Middlebury professors stated after last year’s events: “A protest that prevents campus speakers from communicating with their audience is a coercive act.”  Hecklers are enforcing silence on others, so that only their own speech can be heard, and they are willing to use any means, including crimes of violence, to achieve this censorship.  

 

By giving in to these tactics, administrators are creating a moral hazard that results in ever more disruptive behavior.  If schools would impose serious consequences on those who shut down events and engage in violence, it is likely such tactics would abate.  But few institutions have done so thus far—indeed, some professors and administrators encourage or take part in some of this behavior.  So the confrontations, and attendant costs, keep escalating.  No surprise, then, according to recent polling, most college students now express support for practices that are inconsistent with First Amendment values and requirements:

  • A majority believe it is acceptable to shout down a speaker with whom they disagree so that the event cannot proceed. (2017 Brookings)
  • Nearly seventy percent believe universities can restrict “language on campus that is intentionally offensive.” (2016 Gallup)
  • More than sixty percent believe that organizations can be legally required to sponsor speakers and viewpoints with which they disagree. (2017 Brookings)
  • And nearly twenty percent of students think violence is an acceptable method for silencing a speaker. (2017 Brookings)

 

Think about this for a moment.  Nearly one fifth of American college students—the cream of the crop—express support for the use of physical violence to silence speech with which they disagree.  And this is not just theoretical: the violence is playing out repeatedly on campuses across the country.  The more it happens without consequences, the more the behavior is normalized and repeated.

 

There is a free speech crisis on the American college campus. 

 

Academic Freedom: The Right to Be Wrong

 

What I have just described are symptoms of the crisis, not the cause.  The root cause of the free speech crisis, I think, is that we no longer have broad agreement on the purpose of a university.  And we no longer have broad agreement on the student’s place within the university.

 

Let me turn first to the purpose of the university.  Recall that one of the foundational principles of the university is academic freedom—the right to pursue knowledge, and engage in scholarly inquiry, without fear of reprisal.  The principle dates back to at least 1155, when scholars petitioned Roman emperor Frederick I for protection and he responded by issuing the Authentica Habita, an edict that celebrated the value of scholastic pursuits and explicitly protected scholars in the pursuit of scientific inquiry. 

 

Over the centuries, the idea of academic freedom blossomed and solidified, so that by the time Thomas Jefferson founded the University of Virginia he would commit, in a letter of 1820, that the institution would “be based on the illimitable freedom of the human mind,” and its residents would not be “afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

 

The last portion of that quotation is critical: “to tolerate any error so long as reason is left free to combat it.”  Jefferson was saying that we have the right to be wrong.  And, importantly, that there is nothing to fear in being wrong “so long as reason is left free to combat it”—that is, so long as we are free to speak in opposition to an error. 

 

These ideas: the freedom to speculate, to be wrong, and the freedom to refine and rebut speculation and error, lie at the very core of productive academic inquiry.  In the hard sciences, for example, the scientific method is rooted in the attempt to falsify a hypothesis.  As Justice Frankfurter put it in his concurrence in Sweezy v. New Hampshire in 1957: “Insights into the mysteries of nature are born of hypothesis and speculation.”  Frankfurter goes on to say that this need for speculation is even more true for the “social sciences, the concern of which is man and society.”  Frankfurter concluded: “For society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible.”

 

Frankfurter thus cited approvingly the many commitments to academic freedom that universities and scholars had made over the years, and he quoted extensively from a then-recent statement of South African scholars who were fighting for academic freedom, and against apartheid policies, in their country’s universities:

 

A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—“to follow the argument where it leads.” This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university.

 

Dogma and hypothesis are incompatible.  Unfortunately, it is difficult to characterize the modern American university as embracing this creed.  Through hiring practices, course offerings, extracurricular funding, speaker series, disciplinary actions—through all the daily, often invisible practices and acts that make up university life—you can now often find adherence to certain dogmas at the expense the freedom to hypothesize or dissent.

 

In place of the “spirit of free inquiry,” we now see a focus on feelings—that feelings, and not reason, should dictate what is said on campus and the obligations of members of the university community.  The necessary implication is that any idea or speech that contradicts current majority beliefs or feelings is offensive, hurtful, and valueless—and can properly be silenced.

 

Even tepid disagreement can be deemed hurtful and thus forbidden.  Take, for example, the case of Erika and Nicholas Christakis, faculty-in-residence at one of Yale’s colleges.  Erika Christakis is an expert in early childhood education, and has long espoused the theory that over-parenting is depriving children of valuable learning experiences.  Accordingly, when Yale administrators sent out an email warning students not to wear “culturally unaware or insensitive” Halloween costumes, Erika Christakis responded in an email to her college’s residents.  She wrote that she did not want “to trivialize genuine concerns about cultural and personal representation, and other challenges to our lived experience in a plural community,” but “wonder[ed] if we should reflect more transparently, as a community, on the consequences of an institutional (which is to say: bureaucratic and administrative) exercise of implied control over college students.”  She continued this theme for several paragraphs, exploring the value of, and hard questions raised by, a costume code.  She concluded, “Nicholas says, if you don’t like a costume someone is wearing, look away, or tell them you are offended.  Talk to each other.  Free speech and the ability to tolerate offence are the hallmarks of a free and open society.”  For their troubles—for suggesting that the topic of Halloween costumes is worthy of debate, and for praising the value of free speech—the Christakises were subsequently subjected to months of protests by students, and ultimately resigned their positions.

 

I point out these events at length to this audience in particular not just because they are a stark example of the erosion of respect for free speech on campus, but also because they demonstrate that this crisis is not simply about protests of a few controversial cable news personalities invited to campus for one-time speeches.  The very core of university life—open debate among scholars—is under attack.

 

There are those who contend that certain speech isn’t deserving of protection. They say that some speech is hurtful.  But the right of free speech does not exist to protect the ideas upon which we all agree at a given moment in time.  It presupposes that the wheel will turn and turn again, that the majority view will change, and that when it does, those in newly in the minority will still be as free as the day before to speak and change minds, to listen and have their minds changed.  And so, as Justice Brandeis eloquently stated in his 1927 concurrence in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

 

The Role of Students at a University

 

All of that said, in addition to the loss of a common understanding of the purpose of a university, we also seem to have a loss of agreement regarding the student’s place within the university.

 

Here again, the Christakis affair is instructive.  One of the students who later protested Nicholas Christakis explained why: “It is your job to create a place of comfort and home for the students who live [at the college].  You have not done that.  By sending out that email, that goes against your position as master.  Do you understand that?!”  Christakis responded: “I don’t agree with that.”  What was Christakis’s view?  We can look to the original Halloween email, where Erika stated: “American universities were once a safe space … for maturation.”

 

Historically, young adults were seen to arrive on campus as pupils, whose minimal life experience necessarily meant that the university life—with all of its new experiences, social interactions, and novel academic inquiries—would challenge them, catalyzing growth and change.  Said differently, universities were supposed to make students uncomfortable—to teach them they didn’t spring upon the world, at eighteen years of age, fully formed with all the answers and far-reaching wisdom. 

 

That shared understanding is quickly disappearing.  In its place comes the idea that teenagers are already worldly when they first cross the university gate, and that the campus is simply to be a comfortable halfway house between the family home and the first apartment of a twenty-something.  Perhaps the façade of worldliness comes from a now-steady diet of information-at-your-fingertips Internet, and perhaps the seeming entitlement to instant gratification and validation comes from the now-steady diet of social-media likes and responses.  Whatever the causes, it seems that the student is no longer universally seen as the protégé in the campus environment, but as a consumer to be satisfied.

 

Perhaps university administrators and faculty think they are doing their students a favor by prioritizing their feelings, their short-term satisfaction, over their intellectual and emotional maturation.  They’re not.  They are failing to teach their students how to think and thrive as adults in a complex and contentious society.  The university is supposed to be where students are challenged, grapple with intellectual opponents’ arguments, and leave more informed.  Instead, too many members of the next generation graduate believing that they can learn nothing from people with whom they disagree.

 

Sheltered Students Make Sheltered Citizens

 

Now, many things that happen on college campuses we can just leave there.  After all, I’ve just spent several minutes extolling the virtues of universities as laboratories for unorthodox ideas, novel hypotheses, and failed experiments.  And every professor here today has, I’m sure, heard the flippant notion that the real world doesn’t concern itself with what happens in the ivory tower.

 

But American society-at-large needs to be deeply concerned with the anti-free speech movement in the modern academy.  The students who indicate in polls that they do not value free speech, the students who shout down or violently shut down speakers, the students who simply are not exposed to dissenting viewpoints—all of these individuals will soon be the voting public and the leaders of American society.

 

As Attorney General Sessions recently explained: “the … fundamental issue is that the university is supposed to be the place where we train virtuous citizens.  It is where the next generation of Americans are equipped to contribute to and live in a diverse and free society filled with many, often contrary, voices.”  Thomas Jefferson explained the issue this way: “In a republican nation whose citizens are to be led by reason and persuasion and not by force, the art of reasoning becomes of first importance.”  Put simply, students will not become good citizens if they do not learn how to maturely interact in a pluralistic society.

 

Free speech—and unwavering toleration of free speech—is at the heart of American society.  It is not just an individual right.  It is a structural protection that preserves our form of government.  It is our greatest guarantor of liberty.  This has been a common theme of American thought from the Founding forward.  Madison called free speech “the only effectual guardian of every other right.”  Frederick Douglass asserted that: “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist.  That, of all rights, is the dread of tyrants.  It is the right which they first of all strike down.  They know its power.”  Harry Truman once warned: “Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”  

 

There has long been in this country a commitment to free speech that crossed ideological lines.  Thus, you could find a Justice Brennan writing: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  And could find a Justice Scalia echoing: “The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”

 

That is why the current academic movement that permits or encourages the silencing of opposing viewpoints is so urgently worrisome.  It is not just depriving students of the best possible education.  It is not just depriving scholars of academic freedom.  It threatens to deprive American society of a new generation of citizens who, like their forbearers, share a deep and abiding commitment to free speech and the liberty it guarantees. What’s happening on campuses today is simply toxic for our nation’s future.

 

For these reasons—because American society depends upon citizens who understand the value of free speech—the Attorney General has directed the Department of Justice to begin fighting for the First Amendment on American campuses.  We are using the Department’s bully pulpit to raise awareness, and, where appropriate, we are getting involved in litigation against universities that violate free speech rights.

 

For publicly run institutions, upholding free speech rights is not an option, but an unshakable requirement of the First Amendment.  As Justice Robert Jackson once explained: “If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

 

Thus, today, for example, the Civil Rights Division filed a statement of interest in YAF v. Napolitano, the lawsuit against University of California, Berkeley.  The lawsuit challenges the schools’ policies that vest discretion in administrators to decide, based on subjective factors, which speakers face severe restrictions and which do not.  As the Supreme Court has held, when speech regulation “involves appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and abridgment of our precious First Amendment freedoms is too great to be permitted.”

 

In October, the Department filed another statement of interest in support of Kevin Shaw, a student at Pierce College in Los Angeles.  There, the school limits free expression to a 616 square-foot “free speech area” and requires that, even in that cramped zone, all speakers obtain prior authorization from college administrators. The Department’s brief argues that these policies amount to an unconstitutional prior restraint that chills free expression and are not valid time, place, and manner restrictions.

 

And last September, the Department filed a statement of interest supporting a lawsuit against Georgia Gwinnett College.  The Student Code of Conduct there prohibits speech that “disturb[s] the … comfort of person(s).”  What a frighteningly vague and subjective standard.  In this particular case, the college forced the plaintiffs to stop speaking publicly about their religious beliefs because other students had complained.  We argue that this policy and practice constituted an impermissible “heckler’s veto” and is not content neutral.

 

We will continue to support plaintiffs in such cases and take action in future cases, and we want aggrieved students and faculty to know the Department is open for business on this issue.  We welcome notifications about pending lawsuits and invitations to get involved.  This Department of Justice will stand up for those whose First Amendment rights are threatened on campus.

 

So that’s what the Department is doing about this crisis, and there will be more to come until it abates.  I’ll close, however, with this question.  Where are the professors?  Where are the administrators and deans?  Where are the boards of trustees?  Why hasn’t every college president and dean put out a letter like the one of Dean Ellison at University of Chicago, in which he boldly explained to incoming students that the school would not be one where “individuals can retreat from ideas and perspectives at odds from their own.”

 

It seems that today there is hardly a major political or societal question about which the academy fails to take a stand—through joint statements signed by hundreds, through media interviews, through op/eds, through congressional testimony, through professors’ amicus briefs.  But on this issue, aside from a few sparing faculty members dotted around the country, there seems to be more silence than action.  It is utterly inexplicable, because this is your very profession at stake.  As noted above, it is not just outside speakers and students who are being silenced.  Professors are being caught up in the dragnet, too. 

 

As I briefly mentioned earlier, academic freedom first took hold in 1155, when scholars demanded protection from Emperor Frederick.  It is time for you to do so again.  It is time for members of the academy to again demand the right to be wrong and to make the university the place where hypothesis reigns over dogma.

 

Thank you very much.

 

 

Updated January 26, 2018