Acting Associate Attorney General Jesse Panuccio Delivers Remarks at the Justice Department’s Forum on Free Speech in Higher Education

Many thanks to all of you have joined us today, and to CSPAN for broadcasting this forum so that Americans at home can watch as we discuss free speech in higher education. 

It is a fitting day for this free speech forum, as it is Constitution Day.  This federal observance marks the anniversary of the signing of the Constitution by the delegates to the Philadelphia Convention, some 231 years ago on September 17, 1787.  That seminal moment is captured in one of the panel paintings found just outside this Great Hall—paintings which commemorate “Great Codifiers of the Law.”  This particular painting, simply entitled “Constitution,” depicts eight of the Founders signing our governing document.  The person depicted furthest to the left is James Wilson, one of the few Founders who signed both the Declaration of Independence and the Constitution.  One of the most prominent lawyers of his day, Wilson was an indispensable figure at the Convention, having addressed it 168 times to share his insights on political theory.

In setting the stage for today’s discussions, I think it is useful to ponder two thoughts championed by Wilson during his career.

First, Wilson was a great proponent of popular sovereignty—the idea that the people, and not any official or governmental body, are the ultimate power in a just society.  You might think it odd for me to invoke Wilson at a forum on free speech because, like many Federalists, he originally opposed the Bill of Rights.  But he opposed them because he thought it unnecessary to guarantee preexisting rights that a limited federal government had no power to constrain in the first place.  And, indeed, Wilson had good reason to believe the right to free speech was already deeply engrained in Founding era America.  As Yale Law School Professor Akhil Amar put it in a 2010 article:

American-style popular sovereignty should be understood to entail a muscular right of citizens to discuss political ideas and political proposals among themselves…. In actual fact, the Constitution was born in a land awash with speech and through a process that teemed with talk of the freest sort, including lots of talk harshly critical of existing officials and institutions.  In an extraordinary efflorescence of accusations, addresses, … analyses, … arguments, … books, cartoons, … conversations, … debates, … disquisitions, … essays, … harangues, insults, letters, … pamphlets, … petitions, … prayers, … sermons, songs, speeches, … and writings of every sort, Americans in the enactment process itself exercised and exemplified an amazingly vigorous freedom of expression.[1]

Thus, as Professor Amar shows, the rock that Wilson’s American republic was built upon was free and robust speech.  His conception of popular sovereignty would only work if all perspectives could be aired.  Indeed, Wilson supported the separation of powers and other structural restraints found in the Constitution precisely because he thought they would introduce more viewpoints into the legislative process, thus tempering the worst passions of majoritarian government.  All of this is to say that we celebrate free speech as a right guaranteed by the First Amendment, but the Amendment itself speaks of “the freedom of speech,” suggesting that the right was preexisting.  Indeed, according to Wilson, it was a precondition of the American republic.

So that is the first strand in Wilson’s thinking that I think is helpful in framing today’s discussions.  America, from its Founding, succeeded because its people were free to speak and debate. 

The second strand in Wilson’s thinking comes from his role as a professor.  In addition to his service as a lawyer, statesman, and—later—Supreme Court Justice, Wilson was an academic.  When he immigrated to the Pennsylvania Colony in 1766, he became a teacher at the College of Philadelphia—what is now the University of Pennsylvania.  Later, after the Constitutional Convention, he became the school’s first professor of law, delivering a series of lectures that the U. Penn Law School cites as its official beginning.

In one of those lectures—in 1791, the same year the First Amendment was ratified—Wilson stated: “In every government, which is not altogether despotical, the institution of youth is of some publick consequence.  In a republican government, it is of the greatest.  Of no class of citizens can the education be of more publick consequence, than that of those, who are destined to take an active part in publick affairs.”  In other words, Wilson felt that a republic must recreate itself by educating each generation anew, especially those citizens who would “take an active part in public affairs.” 

Put this together with Wilson’s view that popular sovereignty required free and robust debate, and it follows that educating good citizens meant educating them to participate in, uphold, cherish, and further the robust debate necessary for effective self-government.  Indeed, one of Wilson’s fellow Founders, 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.” 

No wonder, then, that Jefferson, as he founded the University of Virginia, committed 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 Founding-era principles demonstrate the relationship between education of citizens and the thriving of the republic.  And they show why American society-at-large needs to be deeply concerned with the growing 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 speech, the students who simply are not exposed to dissenting viewpoints—will all soon be the voting public and the leaders of American society.  Put bluntly, students will not become good citizens if they do not learn how to maturely interact in a pluralistic society.

That is why the current academic movement that permits or encourages the silencing of opposing viewpoints in myriad ways on campus 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 is happening on campuses today is simply toxic for our nation’s future.

And that is why, starting with the Attorney General’s Georgetown address last year, the Department of Justice has been fighting for free speech on American campuses.  As you can see here today, we are using the Department’s bully pulpit to raise awareness; and, as appropriate, we are getting involved in litigation against state-run universities that violate free speech rights—whether through speech codes, so-called speech zones, or encouragement or acquiescence in the heckler’s veto. 

Let me be clear.  This is not an issue of partisan politics: speech suppression by those on the right is just as inexcusable as speech suppression by those on the left.  It was just as wrong for conservative protestors at Whittier College to shout down left-leaning state officials as it was for liberal protestors at CUNY Law to shout down a conservative law professor, or for protestors at William & Mary to shut down an ACLU speaker attempting to discuss, of all things, the importance of free speech on campus. 

This is not about political parties or any single policy debate.  This is an issue of who we are as a country and who we want to be in the future.  There are those who contend that certain speech isn’t deserving of protection. They say that some speech is hurtful.  But who is to decide what is offensive and what is favorable, what is grating and what is good?  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 Department of Justice is getting involved in the issue of campus speech because part of our role is to defend the Constitution and the rule of law it enshrines.  But we cannot do it alone.  If free speech on campus is to survive, it is up to the campus community to sustain it.  The students, parents, donors, and taxpayers who fund schools must demand it.  The deans, administrators, presidents, and trustees who run schools must display the courage necessary to protect it.  Every college president and every dean who holds their school out to be one of broad-based liberal arts education should put out a letter like the one penned Dean Ellison at the University of Chicago, in which he explained to incoming students that the school would not be one where “individuals can retreat from ideas and perspectives at odds from their own.”

In short, we need more voices standing up right now to protect free speech on campus.  Happily, we are joined today by some of those voices.  The distinguished speakers and panelists who join us today come to us from academia, non-profits, and government.  They are politically and intellectually diverse.  Yet they are all committed to the cause of free expression in higher education.  We are grateful to each of them for providing a model of what a thoughtful, civil conversation about free expression can look like.  We hope this conversation will continue across the nation on our campuses and in the public square. 

This is an important event for the Department of Justice and we are honored that all of these guests, and each of you, have joined us today. We expect a fascinating and productive day.  We are also thankful for the Department employees who made this event a reality: Rachael Tucker in the Office of the Attorney General; Rachel Bissex and Reed Rubenstein in the Office of the Associate Attorney General; Tara Helfman in the Civil Rights Division; Becky Rose and her team from the Office of Justice Programs; and Glenn Kivlen and his team from the Justice Management Division.