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Law prof who criticized Chinese government will not be punished, USD determines

ANALYSIS: Apparently calling the Chinese government’s propaganda ‘cock swaddle’ on a personal blog is still acceptable in academia

The University of San Diego has completed its formal review a law professor who made a blog post critical of the Chinese Communist Party and has determined his writings fell within protected academic freedom purview.

While USD Vice President Gail Baker was quick to point out in a statement on the matter that the private Catholic institution does not endorse Professor Thomas Smith’s commentary, complaints that his blog post violated various university and School of Law policies fell short.

“As a threshold matter, we sought to determine whether the blog post at issue was protected by our policy on academic freedom. After a thorough legal review, it was determined that the expression was protected by that policy,” Baker wrote.

At issue was a post from March 10 that Smith wrote on his personal website The Right Coast.

“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 cock swaddle,” he had stated, later clarifying that the reference was to the Chinese government, not the people in the country.

Baker, in her statement, walked a tightrope between defending Smith and those who filed complaints against him. She also suggested faculty be more careful in how they phrase things.

“It is important that members of the university community exercise their freedom in a responsible fashion, attentive to the impact of their protected opinions and sensitive to all members of the community, especially those who may feel vulnerable, marginalized or fearful that they are not welcomed,” Baker stated. “Members of the university community may feel an obligation, and certainly have the freedom, to criticize opinions that they believe demean the dignity of others.”

The Foundation for Individual Rights in Education, which defended Smith in letters to administrators, said in a news release the university did the right thing but that it took too long. FIRE also implied in its statement Smith was ready to do legal battle with USD over this:

Although we appreciate that USD eventually came to the correct conclusion, the university’s decision to leave Smith in the dark for months as it investigated what was clearly protected speech is impermissible and has almost certainly caused a chilling effect on the university’s students and faculty who wish to express their opinions.

Smith had more than just FIRE’s support throughout USD’s monthslong investigation; he also had the support of colleagues as well as the newly-formed Academic Freedom Alliance, and was represented by former FIRE attorney Samantha Harris.

First Amendment expert Eugene Volokh at UCLA Law School also noted that even the investigation into Smith was unwarranted:

To the extent people who feel some connection to China find it offensive, that is no basis for the university to prohibit such speech, or even investigate a faculty member for such speech—just as a university has no business investigating a faculty member for sharp criticism of the government of Israel (or of other Israeli institutions), or of Russia or, back in the day, South Africa or whatever else.

As The College Fix has previously reported, Smith also faced a petition that demanded he resign or be fired. It alleged he has a history of saying and writing things some found offensive.

But at least for now the March 10 blog post is not the thing that will get Smith removed from USD’s law faculty.

MORE: Law professor may be fired after personal blog post criticized Chinese government 

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About the Author
Fix Editor
Jennifer Kabbany is editor-in-chief of The College Fix.