University of San Diego Law to FIRE: We’re still ‘reviewing’ professor’s blog post

The University of San Diego School of Law is continuing to investigate a professor for a post on his personal blog expressing doubt about COVID-19’s origins in China. 

As FIRE previously reported, law professor Thomas Smith posted, on his personal blog, an excerpt from a Wall Street Journal article about the theory that COVID-19 originated in a lab in Wuhan, adding his own commentary:

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 [sic] of Chinese cock swaddle. At least Peter Daszak has good personal and financial reasons, not to mention reasons of career preservation, for advancing what he must know is a facially implausible thesis. But whatever. Go Science!

After complaints about his reference to “Chinese cock swaddle” and after the university opened an investigation, Smith updated his blog to clarify that he was “referring to the Chinese government,” not attributing views to people from China generally. The university swiftly heard from the Academic Freedom Alliance, which issued a statement in Smith’s support, and received a letter from FIRE. Both explained that the university’s commitment to academic freedom, including a commitment to protecting extramural expression, barred the university from disciplining Smith’s speech, even if others found it offensive.

Disappointingly, almost a month after the post was made, the university is still investigating Smith’s extramural commentary.

This raises the questions: What exactly is USD investigating? And why has it taken so long?

On March 22, FIRE first sent a letter to USD Law urging it to cease investigating Smith for his protected expression. In its March 29 response, USD said that it is “reviewing the matter and expeditiously will take action as appropriate.” 

FIRE sent a second letter today to the school expressing disappointment that we did not receive a substantive response to our original letter and explaining that Smith’s speech is protected by the university’s commitments to academic freedom. 

As today’s letter explains:

[USD Law’s] response does not assuage our concerns; it compounds them. Smith’s speech, however offensive others might find it, is squarely within the rights of faculty members to be free from institutional censorship due to their extramural expression, as recognized by USD’s adoption of the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom. The only appropriate action for USD to take is to cease its investigation.

USD Law’s investigation into Smith’s blog post has had a deleterious effect. Others have indicated that Smith’s silence in response to backlash to his post is indicative that Smith is not interested in hearing others’ perspectives on the issue. However, investigations cause a chilling effect on speech. Why would Smith, who is under investigation by the university for his speech, agree to continue speaking on the topic? This chilling effect not only inhibits Smith’s expressive rights, but also frustrates the ability of Smith’s critics to engage him in dialogue.

Esther Bylsma, the president-elect of the Pan Asian Lawyers of San Diego, spoke with San Diego’s ABC news affiliate about a letter the organization published. She criticized Smith’s “lack of” response to students who want to speak with him about his blog post, and how that demonstrates the “fallacy of the whole academic freedom argument.”

The problem with this theory, however, is that investigations like USD’s into plainly protected expression — no matter how disagreeable — chill speech.

When Smith’s job could be on the line because of his speech, why would he continue to speak or engage in debate with those who disagree with him? If a faculty member is being investigated because their online speech — not directed to students or faculty — is perceived as creating a hostile environment on campus, why would they rationally choose to engage with critical students or colleagues, thereby bringing the speech closer to the campus environment?

That chilling effect will not be limited to the investigated professor. How can other faculty feel comfortable speaking on uncomfortable topics if they know USD may investigate them for clearly protected speech?

These chilling effects are inimical to the purpose of a university, where students and faculty can share viewpoints that others might find uncomfortable or offensive. To alleviate this chilling effect and to comply with its promises, USD must immediately cease its investigation into Smith’s blog post and reaffirm to its faculty that it is committed to its promises of academic freedom and freedom of expression. FIRE will be watching to make sure it does so.

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