USD Law Professor Under Investigation For Column Criticizing Chinese Government – Thelegaltorts

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The Case For Internet Originalism – JONATHAN TURLEY

University of San Diego law professor Thomas Smith has been investigated for using an offensive term in a column criticizing the Chinese government and its role in the pandemic. The column that was written on the website The right coast discussed an article in the Wall Street Journal about 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 diapers”. That led to a campaign in which Smith was 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 freedom of speech and academic freedom. It shows the same combination of campaigns to cancel students and the activating actions of school administrators.

Smith is a very accomplished iIntellectually with an impressive background in both academia and the bar. He writes in the fields of Jurisprudence and Legal Theory, Intellectual Property, Contracts, Bankruptcy, Law and Economics, Business and Corporate Law at USD. He’s also someone who blogs and columnists on the public forum.

In its right shore pillarSmith stated, “If you think the coronavirus hasn’t escaped the Wuhan lab, at least you have to remember that you’re an idiot who swallows a whole load of Chinese C ** K diapers.” It is clear that reference is not being made to the Chinese people, but to the Chinese government. Most people agree that the text of the column clearly shows that Smith criticized the regime. Even so, Smith later added this clarification to his column in a post script: “UPDATE: It seems that some people are interpreting my reference to” Chinese ” [c**k] swaddle ”as an indication of an ethnic group. That is a misinterpretation. To be clear, I was referring to the Chinese government. “

However, that was not enough. After this send a letter The school’s Asian Pacific American Law Student Association released an apology and filed a formal complaint in collaboration with the Student Bar Association. APALSA also sent one List of demands including the dismissal of Smith or the guarantee that Professor Smith is never allowed to teach 1L students as they do not have the option to choose their classes We want this to be UNLIMITED. “

When confronted with the fact that Smith had no intention of insulting the Chinese people in general, the students insisted that intention no longer matters in such controversies and that Smith still had to be fired. Benjamin Cope is freshman cited as a saying “Maybe it wasn’t his intention, but he chose a very, very specific, unique, colorful language. I know everyone will have their opinion, but as someone who is and has been influenced by such words from people, I feel good when I say it was racist and offensive. “

How Eugene Volokh correctly pointed this out, the California Labor Code protects “political activities” employees and the The California Supreme Court ruled in Homosexual law students Ass’n v. Pac. Tel. & Tel. (1979) These “political activities” include not only the election campaign, but also “standing up for … a cause”.

One would have hoped the dean would stand firm on the freedom of speech and find that the hint was a criticism of the Chinese regime, 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, wherever these forms of bias arise, they are detrimental to our community. It is especially worrying when the derogatory language comes from a member of our community. A core value of the University of San Diego Law School is that all members of the community must be treated with dignity and respect. The university’s guidelines, among other things, expressly prohibit harassment, including the use of surnames, derogatory comments, or blurring based on race or national origin.

We have received formal complaints regarding the conduct of the faculty member and, in accordance with the university’s procedures, we are investigating whether the university or law school guidelines have been violated.

We previously discussed how this is Investigations create a deterrent effect about language when administrators show little support for free speech. I understand the need to look into any formal complaint. However, Schapiro appeared to be pre-judging the allegations, referring to “these forms of bias” and adding that “it is especially important when the derogatory language comes from a member of our community”. As discussed in the recent controversy surrounding Smith CollegeSuch statements protect deans and presidents from any criticism at the expense of the accused – and more generally from freedom of speech.

The declaration prompted some faculties to write to Schapiro in protest:

Dear Robert,

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

The faculty member concerned made a political comment in haunted language. He has the right and perhaps an obligation as a citizen and academic to speak up on matters of public concern such as the Chinese government’s handling of COVID, and to do so in powerful and haunting language. No fair, even less legal, way of reading what he wrote would lead to anything other than “Chinese [c**k] swaddle “referred to the propaganda of the Chinese government and certainly did not denigrate people of Chinese origin or descent. The context makes this perfectly clear.

Academic blog posts fall within the limits of academic freedom as defined by the AAUP. Students’ concerns about discrimination should always be considered soberly. However, an academic institution devoted to free inquiry cannot allow misguided allegations of bigotry to become a general-purpose tool for silencing critical comments. When such accusations undermine academic freedom, an environment of fear and suspicion is ultimately created for all members of the academic community that undermines, rather than ensures, welcoming and respectful discourse. Describing the controversial comments in this case as “offensive language regarding people from China” of a play with “Hate Crimes Against the Asian and Pacific Islander Community (API)” [and] Racist comment “inevitably gives the impression that the judgment was made in advance and the outcome of the promised review was determined in advance.

We are concerned that treating these ailments as you do will confirm the responses and burdened interpretations of students who are misguided, reflect a lack of critical thinking, and adversely affect the teaching and fellowship of faculty members. We sincerely hope that it will be possible to work together to find a better way.

What is remarkable about this letter is not that it contains unassailable truths about due process and freedom of speech, but that it was signed by only seven faculty members.

The controversy highlights an increasingly widespread position where intent no longer matters when the use of terms is considered offensive, even when used as a basis for dismissal. Recently, a New York Times editor was fired for using the word “n”, although it was agreed that he would use it in response to a question rather than an intended slur. Veteran reporter Donald McNeil Jr. was fired according to the newspaper bowed again to a cancellation campaign. Intent doesn’t matter, every utterance is potentially a one-shot criminal offense. Dean Baquet, Executive Editor of the Times, and Joe Kahn, Managing Editor, stated in a memo that “We do not tolerate racist language, whatever its intent.”

Similarly, we discussed professors for whom research was conducted Use of “N-word” in classes for purely educational reasons. More recently, the faculty has been specifically selected for using the term as an acronym or with the censored version of the term. Not only does intent no longer matter, but freedom of speech or academic freedom as well.

What is most troubling 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 classified as insensitive or racist. Such a controversy can put an end to any hope for publications or new academic positions. So most of them remain silent when a colleague is attacked because of clearly protected language. This silence is reinforced by administrators like Schapiro, who do not support freedom of speech or academic freedom.

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

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