Constitution Day speaker: Scholars must affirm ‘Right to be Wrong’

Too often, campuses suppress rather than rebut arguments, threatening soul of academia, former high-ranking DoJ attorney says

In the video that went viral last month, in which a crowd of protesters confronted at a woman sitting at a table outside a Washington, D.C. restaurant, demanding that she make a gesture of solidarity, there’s not a college dean or faculty member in sight.

But deans and faculty members still should watch such videos with alarm, suggested Jesse Panuccio, featured speaker at the UND School of Law’s Constitution Day Celebration 2020.

That’s because one reason why such intimidating tactics have spread is that too many college leaders have acceded to the tactics’ use on campus, Panuccio said. “Indeed, we don’t need to speculate about what will happen to society when universities abandon the inculcation of the values of free speech, rigorous debate and the Right to be Wrong,” he said during his talk.

Instead, he said, we just need to pull out our phones and review the video of the incident at the restaurant. “That is the America that our college campuses are ushering in by refusing to support and inculcate an appreciation for free inquiry and debate,” Panuccio said.

And “that is why the current academic movement that permits and encourages the silencing of opposing viewpoints is so urgently worrisome. … It threatens to deprive American society of a new generation of citizens who, like their forebears, share a deep, abiding commitment to free speech and the liberty it guarantees.”

DoJ’s former third-ranking official

Panuccio is a partner in the Boies Schiller Flexner law firm and former Acting Associate Attorney General of the United States. A graduate of Duke University and Harvard Law School, he’s also a frequent speaker at events associated with the Federalist Society for Law and Public Policy Studies, the prominent organization that, according to its website, “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Its members often advocate for an originalist interpretation of the U.S. Constitution.

At UND, Panuccio’s Constitution Day talk was hosted by the Federalist Society student chapter at UND School of Law.

Said Mike McGinniss, dean of the UND School of Law, “I am very excited that the School of Law was able to share this great event in celebration of Constitution Day with our UND campus community, as well as with other NDUS institutions and many members of the North Dakota legal profession.

“Mr. Panuccio gave an outstanding, inspiring presentation about the essential importance of the Free Speech Clause of the First Amendment, particularly on college and university campuses. It was also gratifying that he specifically pointed to how highly UND stands out among today’s universities with its powerful statements and strong policies that protect freedom of speech for everyone in the campus community.”

Panuccio titled his remarks, “The First Amendment and the Right to be Wrong.” And over the course of his 50-minute talk, he elaborated, building a case that rested on a sequence of key claims:

First, that free expression – the “Right to be Wrong,” the mechanism for self-correction that lets America learn from its mistakes – lies at the heart of the Constitution’s unique-in-world-history success;

Second, that the above norm as enshrined in the First Amendment is in retreat in the United States;

Third, that a leading and vitally important segment of this retreat is taking place in academia;

And fourth, that faculty members and university administrators must renounce this change, and instead coalesce – as has happened before in the 1,000-year history of the university – around the ideal of academic freedom.

The Right to be Wrong

Exactly 233 years ago, Panuccio noted Thursday, delegates to the Constitutional Convention in Philadelphia signed their names to the “incredible charter” that has governed us ever since.

“History has shown our Constitution to be the most remarkable governing framework human society has ever devised,” he said.

Not coincidentally, a hallmark of American governance across those centuries has been “an appreciation for debate, for open discourse and for free thought,” ideals enshrined in the First Amendment. But the history of those ideals stretches back even further, for they have been hallmarks of academic freedom – and the idea of the university – since at least 1155.

That was the year of the Authentica Habita, or Privilegium Scholasticum. This was a document set forth by the Roman emperor Emperor Frederick I Barbarossa in response to a petition from scholars for protection.

“The edict celebrated the value of scholastic pursuit and explicitly protected scholars in pursuit of scientific inquiry,” Panuccio said.

The Authentica Habita “helped establish the modern university as a place of free inquiry.”

Such was the history Thomas Jefferson drew upon when he founded the University of Virginia. Wrote Jefferson in a letter of 1820, “this institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

With those words – “tolerate any error so long as reason is left free to combat it” – Jefferson was arguing for the Right to be Wrong, Panuccio noted. “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,” he said.

Along those same lines, U.S. Supreme Court Justice Felix Frankfurter once opined, “a university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. … Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university.”

The Heckler’s Veto and other suppressions

Unfortunately, dogma – immutable, inarguable doctrine – reigns supreme on too many of today’s campuses, Panuccio said. And the Right for a speaker to be Wrong has evolved into a Right for listeners never to hear Wrong-think.

At Middlebury in Vermont, student protesters violently shut down an event featuring an invited speaker. At Clemson, the Student Code of Conduct threatens students with punishment – even expulsion – if they speak in a way that offends. At William and Mary, activists shouted down an ACLU representative, who – ironically – was addressing free speech.

There are countless other examples, suggesting that “speech suppression is playing out daily on campuses across the country,” Panuccio said.

“Outrage culture has replaced inquiry culture on our campuses,” he said. Moreover, “even tepid disagreement can be deemed hurtful and thus forbidden,” as shown by the case of Erica and Nicholas Christakis of Yale. For their offense, in an email, of supporting free expression, the Christakises “were subjected to months of protests by students” and ultimately resigned their student-life leadership posts.

Codes of conduct are one means of enforcing the new orthodoxy. But UND’s – to the University’s great credit, Panuccio noted – does not: Students who find a speaker offensive are instructed to offer their own arguments in rebuttal, but not in a way that disrupts the original speech.

“That is exactly right,” Panuccio said. “Kudos to the University of North Dakota for being one of the few institutions that embrace this fundamental idea.”

Now, the task before academia is for faculty and administrators at all universities to once again recognize the primacy of free expression, he said.

“As I mentioned, academic freedom first took hold in 1155,” when teachers demanded protection for scholarly inquiry.

“It is time for the community of scholars 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.”