University of San Diego Law Professor Thomas Smith has been put under investigation for the use of an offensive term in a column criticizing the Chinese government and its role in the pandemic.  The column, written on the site The Right Coast discussed a Wall Street Journal article on China’s lack of real cooperation in the World Health Organization’s investigation into the origins of the coronavirus. In the column, Smith refers to accepting “a lot of Chinese c**k swaddle.” That led to a campaign to have Smith fired and a statement from Dean Robert Schapiro that not only announced a  formal investigation but appeared to denounce Smith.  The USD controversy is the latest attack on free speech and academic freedom. It shows the same combination of student cancelling campaigns and the enabling actions of school administrators.

Smith is a very accomplished intellectual with an impressive background in both academia and the bar. He writes in the areas of Jurisprudence and Legal Theory, Intellectual Property, Contracts, Bankruptcy, Law and Economics, Business and Corporate Law at USD. He is also someone who writes in the public forum as a blogger and columnist.

In his Right Coast column, Smith stated “If you believe that the coronavirus did not escape from the lab in Wuhan, you have to at least consider that you are an idiot who is swallowing whole a lot of Chinese c**k swaddle.”  It is clear a reference not to the Chinese people but the Chinese government. Most people agree that the text of the column clearly shows that Smith was criticizing the regime. Nevertheless, Smith later added that clarification to his column in a post script: “UPDATE:  It appears that some people are interpreting my reference to “Chinese [c**k] swaddle,” as a reference to an ethnic group.  That is a misinterpretation.  To be clear, I was referring to the Chinese government.”

That was not sufficient, however.  After sending a letter demanding an apology, the school’s Asian Pacific American Law Student Association filed a formal complaint in conjunction with the Student Bar Association.  APALSA also sent a list of demands including the firing of Smith or guaranteeing “that Professor Smith never be allowed to teach 1L students since they do not have the option of picking and choosing their classes. We would want this to apply INDEFINITELY.”

When confronted with the fact that Smith was not intending to insult Chinese people generally, the students insisted that intent no longer matters in such controversies and Smith still needed to be fired.  First-year student Benjamin Cope is quoted as saying “Maybe it wasn’t his intent, but he chose very, very specific, unique, colorful language. I know everyone will have their opinion, but as someone who will and has been affected by people’s words like this, I feel comfortable saying it was racist, it was offensive.”

As Eugene Volokh correctly pointed out,  the California Labor Code protects “political activities” employees and the California Supreme Court ruled in Gay Law Students Ass’n v. Pac. Tel. & Tel. (1979) that “political activities” includes not just electioneering but also “espousal of … a cause.”

One would have hoped that the Dean would have stood firmly with free speech and noted that the reference was a criticism of the Chinese regime and not the Chinese people. Instead, Schapiro criticized Smith and ordered an investigation. He told the law school:

While the blog is not hosted by the University of San Diego, these forms of bias, wherever they occur, have an adverse impact on our community. It is especially concerning when the disparaging language comes from a member of our community. A core value of the University of San Diego School of Law is that all members of the community must be treated with dignity and respect. University policies specifically prohibit harassment, including the use of epithets, derogatory comments, or slurs based on race or national origin, among other categories.

We have received formal complaints relating to the faculty member’s conduct, and in accordance with university procedures, there will be a process to review whether university or law school policies have been violated.

We previously discussed how these investigations produce a chilling effect on speech when administrators show little support for free speech. I understand the need to consider any formal complaint. However, Schapiro seemed to pre-judge the allegations by referring to “these forms of bias” and adding that “it is especially concerning when the disparaging language comes from a member of our community.” As discussed in the recent Smith College controversy, such statements protect deans and presidents from any criticism at the cost of the accused — and more generally free speech values.

The statement led a few faculty to write to Schapiro in protest:

Dear Robert,

We have read your email to the law school community as well as your email to one of us. Here is our reaction.

The faculty member in question made a political comment in forceful language. He has the right and perhaps the obligation as a citizen and an academic to comment on matters of public concern such as the Chinese government’s handling of COVID, and to do so in evocative and forceful language. No fair, much less lawyerly way of reading what he wrote would conclude anything other than that “Chinese [c**k] swaddle” was referring to propaganda of the Chinese government and surely not denigrating people of Chinese origin or descent. The context makes this perfectly clear.

Blog posts by academics fall within the bounds of academic freedom as defined by the AAUP. Student concerns about discrimination should always be considered soberly. Yet, an academic institution committed to free inquiry cannot allow misplaced accusations of bigotry to become an all-purpose tool for silencing critical comment. To allow such accusations to undermine academic freedom ultimately ensures an environment of fear and suspicion for all members of the academic community, undermining rather than ensuring a welcoming and respectful discourse. Describing the disputed comments in this case as “offensive language in reference to people from China” of a piece with “hate crimes directed against the Asian and Pacific Islander (API) community [and] racist commentary” inevitably creates the impression that judgment has been rendered in advance and the outcome of the promised review has been predetermined.

We are concerned that treating these complaints the way you are doing validates student reactions and strained interpretations that are misguided, that reflect a lack of critical thinking, and that will chill faculty members’ teaching and scholarship. We sincerely hope it will be possible to work together to find a better way.

What is remarkable about that letter is not that it states unassailable truths about due process and free speech but that it was signed by only seven members of the faculty.

The controversy highlights an increasingly common position that intent no longer matters if the use of terms are considered offensive, even when used as the basis for termination. Recently, a New York Times editor was fired for the use of the “n word” even though it was agreed that he was using it in response to a question and not as an intended slur. Veteran reporter Donald McNeil Jr., was fired after the newspaper bowed again to a cancelling campaign.  does intent not matter, any utterance is potentially a one-strike offense. Times Executive Editor Dean Baquet and Managing Editor Joe Kahn declared in a memo that “We do not tolerate racist language regardless of intent.”

Similarly, we have discussed professors investigated for using the “n-word” in classes for purely pedagogical reasons. Recently, faculty have been targeted for using the term as an acronym or using the censored version of the term.  Not only does intent no longer matter, but neither do free speech or academic freedom.

What is most distressing about the USD controversy is the combination of a student-led anti-free speech campaign with a largely silent or passive faculty.  Many professors are intimidated by these campaigns and do not want to risk being labeled as insensitive or racist. Such a controversy can end any hope for publications or new academic positions. So most stay silent as a colleague is attacked for clearly protected speech.  That silence is reinforced by administrators like Schapiro who show little support for either free speech or academic freedom.

I have little doubt that Professor Smith will prevail in this controversy. If necessary, he can sue and prevail in court. However, free speech has already lost with the actions of Schapiro and silence of most of the faculty. These investigations and public statements create an obvious (and intended) chilling effect on speech. Few academics want to risk such public humiliation or attention. Even fewer will risk such positions when administrators show little inclination to defend academics who are targeted in this way.