Opinion: A USD law professor is under investigation. Instead, his right to free speech must be protected. – The San Diego Union-Tribune

Volokh is a professor of law at UCLA School of Law. He lives in Los Angeles. Goldstein is a lawyer at the Foundation for Individual Rights in Education. He lives in Virginia.

University of San Diego Law School professor Thomas Smith is facing calls for his firing. His offense: a blog post that characterized defenders of Chinas coronavirus response as swallowing so much Chinese ---- swaddle.

His critics are characterizing this as a racial slur, and the law schools dean appears to be agreeing. They are wrong, but worse, this reaction chills the ability to criticize governments around the world.

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The title of Smiths post is about China, and the quote refers four times to China in ways that unambiguously reference the government. Though the word Chinese can refer to the government, the nation or the ethnic group, here the referent is clear. If there had been any ambiguity, Smith later added a note reinforcing the ordinary reading of his words: I was referring to the Chinese government.

And yet, Dean Robert Shapiro wrote a letter to the University of San Diego Law School community where he described Smiths phrase as offensive language in reference to people from China. Indeed, Smith is now apparently being investigated for possible violations of law school policies. But Smith was no more referencing the Chinese people writ large than criticism of the Israeli government would be in reference to people from Israel.

Smiths speech is protected by state law, which prohibits even private employers from attempting to coerce or influence employees to follow or refrain from adopting or following any particular course or line of political action or political activity. And the California Supreme Court has made clear that political activity includes espousal of a cause. In the leading precedent, that activity included support for gay rights, but the precedents logic equally applies to opposing the Chinese government.

To say speech is protected as a matter of law is merely a starting point. Smiths speech must be protected as a matter of academic freedom, social mores, and a culture of liberty. We must always have the right to forcefully criticize governments American, Chinese, Israeli, Russian, Saudi or whatever else.

Such freedom of criticism is necessary so that we can help influence our own governments internal behavior. Its necessary so that we can help influence our own governments behavior towards other governments. Its necessary so that we can figure out the perils that these governments might be posing, to us, to their own citizens, or to their neighbors.

Governments are powerful, important institutions. As with any other powerful institutions, they can only be controlled if subjected to constant discussion, evaluation and criticism.

Of course, governments are also associated with people: their employees, their citizens, and often people who share an ethnic background with the government. Because of this, some suggest that such harsh condemnation of the Chinese government might increase the risk of hate crimes against Asians.

But while hate crimes are obviously wrong, it would be no triumph of human rights to insulate dictators from criticism if they have the good fortune to share an ethnicity with a domestic minority group. And if we adopt such a principle that criticism of the powerful must be prohibited if readers might be inflamed to commit crimes that would equally justify prohibiting criticism of police, the Congress or the courts, all of whom have been subjected to both harsh criticism and physical attack within the last year.

To the extent people who feel some connection to China find Smiths speech offensive, that is no basis for the university to prohibit such speech, or chill it with an investigation. And whatever one might say about the vulgarity of the post our best guess is that it stemmed from an inadvertent mashup of codswallop or cock-and-bull story its clear that the University of San Diego isnt (and shouldnt be) trying to implement an evenhanded no-vulgar-posts rule.

To preserve our ability to criticize governments, we must be careful not to assume that all criticism of a government stems from bigotry against an ethnic group. When the speech is mistaken, or when a particular criticism is demonstrably based on racial or ethnic hostility, or when a government is being unfairly faulted for behavior in which other governments engage, that should be pointed out, in a substantive response. But we shouldnt just categorically assert that Chinese, even when it clearly refers to China, is somehow inherently a bigoted term.

And the University of San Diego should end its investigation of professor Smith, and recommit itself to principles of academic freedom and a culture of free speech.

Originally posted here:
Opinion: A USD law professor is under investigation. Instead, his right to free speech must be protected. - The San Diego Union-Tribune