Category: reason

Public health bureaucrats at the Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) have brought Johnson & Johnson’s vaccination efforts to a screeching halt pending an investigation into six confirmed cases of blood clotting among the nearly 7 million people to become inoculated. This decision will inadvertently get people killed, but if you dare to question it, you will be branded an enemy of science by the “trust the experts” mafia.

Make no mistake, the pause represents lethal risk aversion. There is no real question that many, many more people will contract COVID-19 because they did not receive a vaccine quickly enough—suffering hospitalization or even death as a result—than will have an adverse health outcome from the vaccine.

“This decision was made by the CDC and FDA,” said Jeff Zients, a White House coronavirus response coordinator. “We’re ruled by the science, not any other consideration.”

Since the decision to pause the J&J vaccine cannot be defended on any sort of basic life-saving calculus—oral contraceptives carry a greater risk of blood clotting, and the FDA hasn’t prohibited them—government health experts and their media mouthpieces are instead arguing that the pause is necessary to stave off a surge in vaccine hesitancy. Anthony Fauci, a member of the White House’s coronavirus task force, opined that the pause would reassure vaccine skeptics that the government takes their concerns seriously and has made safety the top priority.

“One of the most important reasons why people have hesitancy is they’re concerned about the safety,” said Fauci. “The very fact you have two organizations—the CDC and the FDA—looking so carefully at this, making safety the primary concern, in my mind confirms or underscores the situation that we take safety very seriously. I would think at the end of the day it could actually diminish hesitancy by saying, ‘Boy those people there are looking at that very carefully and when they say something is safe you can believe it’s safe.'”

Fauci has no idea what he’s talking about. In fact, there’s good evidence that governments damage public confidence in vaccines when they do things like this. The European Union’s dubious decision to suspend the use of the AstraZeneca vaccine at a time when the pandemic was raging across Europe (and many countries had pitifully low vaccination rates) substantially undermined public trust in the vaccine.

And even if halting the J&J vaccine did result in some slight gain in terms of public approval, this would need to be weighed against the fact that any delay in vaccination causes death. (Several friends of mine were slated to receive the J&J vaccine yesterday; they showed up to their appointments only to discover that they could no longer get vaccinated.)

Yet anyone who dares criticize Fauci, the CDC, the FDA, or the experts more generally, has been warned to stay in their lane. The best recent example of this is when statistician Nate Silver, a polling guru and editor of FiveThirtyEight, took to Twitter to lambast the vaccine halt on many of the same grounds I laid out here. Silver pointed out that even if the FDA did want to tackle the blood-clotting issue, it did not need to order to a full stop: The agency could have quietly investigated the matter first, or it could have even ordered a pause just for women under the age of 49 (the group affected by the blood clots).

“Even if blood clot deaths were 10-fold higher than observed so far, which is certainly possible, it wouldn’t be a close decision,” said Silver. “And that’s before considering the knock-off (sic) effects on contributing to vaccine hesitancy.”

For raising these issues, Silver was sharply criticized by public health experts and those who apparently believe we should never question them.

With all due respect to @NateSilver538, he is not an expert on the psychology of vaccine confidence. He is a poll aggregator and political pundit. He is not an infectious disease specialist, epidemiologist, vaccinologist, virologist, immunologist, or behavioral scientist. pic.twitter.com/HBrI6zj9aa

— Céline Gounder, MD, ScM, FIDSA (@celinegounder) April 14, 2021

Hi, my name is Nate Silver. I’ve been fucking up with my usual game of political polling, so I’ve decided to assert my great flawless mind into the world of infectious disease, because the pandemic needs another loud voice contradicting experts and condemning each move they make.

— Ethan Embry (@EmbryEthan) April 14, 2021

Nate Silver is what happens when white men

— andi zeisler (@andizeisler) April 14, 2021

The key problem with @NateSilver538 tweets about J&J withdrawal is that it ignores the requirements of clinical trials and the potential impact of ignoring them, and instead relies on raw statistical analysis. The consequences of doing so could prove disastrous to the entire…1

— Kurt "Masks Save Lives" Eichenwald (@kurteichenwald) April 14, 2021

It is Gounder’s perspective that really encapsulates the entire view of Team Trust the Experts. In their thinking, whatever the CDC says must be accurate, because it represents the collective wisdom of people in the know. And the only people in the know are epidemiologists.

Note that this stay-in-your-lane mentality runs in only one direction. Public health officials had no problem staking out strong positions on, say, the prevalence of racism in society and which activist strategies might be necessary in order to counteract it. They don’t seem to understand that a data and polling expert like Silver might have more expertise than Fauci on what sort of advocacy messages could move the needle on public opinion. Indeed, several non-epidemiologists whose pandemic-related predictions were the most accurate—Zeynep Tufekci and Alex Tabarrok come to mind—were unafraid of contradicting CDC’s guidance, and have been proven right time and time again.

Experts are not infallible. The judgment of the CDC should never be beyond questioning. The FDA’s very existence has largely proven a barrier to getting people the medicine they need to prevent thousands of deaths: For all of the government’s stated concerns about vaccine hesitancy, no entity has done more to prevent people from receiving the shot than the government’s own health authorities. If there’s one lesson to take away from this pandemic, it’s that we should sometimes Listen to the Experts—but also ignore them when they’re full of it.

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The erratic and authoritarian ways governors across the country have responded to the COVID-19 pandemic have prompted state lawmakers to restrain the authority of the executive branch. This is good news for the separation of powers in state government and an opportunity for average folks to reclaim some autonomy.

For people in many states, governors have responded to the pandemic with a complicated and ever-shifting “Hokey Pokey” of demands and bans, many of which appeared to be completely unrelated to the actual science of the spread of the coronavirus. Some decisions, like New York Gov. Andrew Cuomo’s demand that nursing homes take in elderly people infected with COVID-19, made the pandemic even worse.

It’s supposed to be the province of lawmakers to decide what citizens must and must not do and pass laws that clearly explain these rules so that police and regulators can consistently and fairly apply them.

But governors and agents of the executive branch are given more flexibility to call the shots when an emergency comes around, and we’ve seen governors flex these emergency powers in harmful and oppressive ways that have failed to even serve their primary goal of stopping the spread of COVID-19. California Gov. Gavin Newsom is finally letting businesses and entertainment venues within the state serve more people indoors, months after Florida’s Gov. Ron DeSantis did the same. Yet, the two states ended up with strikingly similar infection and death rates. California citizens have been fighting back and even winning.

Today Nick Niedzwiadek reports at Politico that lawmakers are attempting to recover some of their lost authority to define the rules:

Lawmakers in nearly every state in the country have introduced a combined 300-plus bills this year related to governor’s emergency authority or executive action taken during the fight against Covid-19, according to the National Conference of State Legislatures. Only a fraction of those measures are likely to ultimately move out of committee, let alone be enacted into law, but the bills nevertheless reflect the considerable interest in recalibrating governors’ emergency authorities.

Niedzwiadek initially frames the dispute as partisan in his lede: Republican Kentucky lawmakers passed several bills to restrain the emergency powers of Democratic Gov. Andrew Beshear. One of the bills limits the duration of the governor’s emergency orders to 30 days unless the state’s General Assembly approves an extension. Beshear vetoed the bills, but lawmakers overruled him.

But Niedwiadek then quickly expands the view to show that it’s not really a partisan divide. Republican and Democratic lawmakers are now increasingly concerned even when somebody from their own party is governor.

Cuomo is an obvious example here. The Democrat-dominated New York Assembly voted in March to strip the governor of his emergency powers in the wake of the scandals consuming his office.

The same is true of Republicans in Ohio, who voted to override a veto by Republican Gov. Mike DeWine and pass a law that allows the Ohio Assembly to rescind standing orders by the state’s health department, and creates an oversight and advisory committee to examine emergency health orders.

Governors may complain about this loss of authority, but they should look at California and consider the alternatives. Newsom now faces a recall election, and while partisanship may have initially fueled the effort, the reality is that his office’s intrusive and often nonsensical rules on reopening within the state have caused economic harm to many, many citizens. The fact that organizers were able to gather enough signatures to recall a Democratic governor in a state with a Republican Party in deep decline (24.2 percent of voters) is a sign that voters don’t want governors misusing their emergency powers for wide-ranging, long-term diktats.

While it may feel like COVID-19 spread like wildfire, long-term policies that alter what is allowed, what is forbidden, and what is mandated should be funneled through legislatures and debated.

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Mazal tov to co-blogger Steve Sachs, who will serve at Harvard Law School as the inaugural Antonin Scalia Professor of Law. Truly, such a well-deserved honor. Steve is one of the leading originalist scholars, and will be a beacon of light in Cambridge. I can’t wait to see what he accomplishes there.

Here is HLS’s release:

Stephen E. Sachs, a leading scholar of civil procedure and constitutional law, will join the faculty of Harvard Law School as the inaugural Antonin Scalia Professor of Law, effective July 1.

Sachs, who is currently the Colin W. Brown Professor at Duke Law School, researches a range of subjects including the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, and the role of the general common law in the U.S. legal system.

“Professor Sachs is a thoughtful, creative, and impactful scholar who has offered fresh ways of thinking about law and interpretation and about the structure and content of U.S. law,” said John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “He is also a great teacher and colleague, and I am delighted that he is joining the HLS community.”

Said Sachs: “I am delighted to join the faculty of Harvard Law School, where I took my first law school class from Charles Donahue as a medieval history undergraduate, and where I spent many happy hours reading through old statutes in Langdell. I am particularly honored to serve as the inaugural Antonin Scalia Professor, in recognition of Justice Scalia’s legacy in the law.”

Harvard Law School established the Antonin Scalia Professorship of Law in 2017, in honor of the late U.S. Supreme Court Justice Antonin Scalia ’60. Known for his jurisprudence advancing originalism and textualism, Scalia served as an associate justice for 30 years until his death in 2016.

Sachs joined the Duke faculty in 2011 as an assistant professor, after practicing in the litigation group of Mayer Brown in Washington, D.C. He received tenure in 2016. He also taught as a visiting professor at the University of Chicago Law School in the Winter of 2020, and at Harvard Law School during the 2015–2016 academic term.

He is a member of the Judicial Conference’s Advisory Committee on Appellate Rules, an elected member of the American Law Institute, and an adviser to the ALI’s project on the Restatement of the Law (Third), Conflict of Laws.

Sachs has written numerous articles, essays, and book chapters. His work has appeared in the Harvard Law Review, the Harvard Journal of Law and Public Policy, the California Law Review, Constitutional Commentary, the Law & History Review, the Notre Dame Law Review, the Northwestern University Law Review, the Texas Law Review, the Virginia Law Review, and the Yale Law Journal, among others. His most recent work, “Originalism: Standard and Procedure,” is forthcoming in the Harvard Law Review in 2022.

In 2020, Sachs received the Federalist Society’s Joseph Story Award, which recognizes a young academic who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact in a manner that advances the rule of law in a free society.

In June 2013, Sachs wrote an amicus brief to the Supreme Court on forum selection agreements in civil cases. The Court ordered the parties in the case, Atlantic Marine Construction Co. v. U.S. District Court, to be prepared to address the brief, which was discussed at oral argument and in the Court’s opinion. The brief was later named among the “Exemplary Legal Writing of 2013” by the Green Bag Almanac & Reader legal journal.

Sachs clerked for Chief Justice John G. Roberts Jr. ’79 during the 2009–2010 Supreme Court term, and for the late Judge Stephen F. Williams ’61 of the U.S. Court of Appeals for the D.C. Circuit in 2007–2008.

Sachs received his J.D. from Yale Law School, where he was executive editor of the Yale Law Journal and served both as executive editor and articles editor of the Yale Law & Policy Review. A Rhodes Scholar, he graduated from Oxford University in 2004 with a first-class BA (Hons) degree in politics, philosophy, and economics. In 2002, he received his A.B. summa cum laude in history from Harvard University, earning the Sophia Freund Prize.

At HLS, Sachs will teach Civil Procedure, Conflict of Laws, and other public law courses.

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Monday afternoon, as I had been repeatedly alerted to by emails from my daughter’s elementary school, the school’s parent-teacher coordinator, and our district’s Community Education Council, the New York City Department of Education (DOE) held the second of a three-part “teach-in” titled “Segregation in Our NYC Schools.”

Cosponsored by NYC DOE Bureaucrats for Black Lives, and moderated by “employees across the DOE who are dedicated to creating a truly anti-racist public education system,” the teach-in encourages parents and students to “be a part of this change”—namely, to explicitly support the specific set of sometimes radical alterations to school policies that activist educators are pushing through in the name of rebalancing racially unequal distributions of student populations across the K-12 system.

This may seem like an odd moment to be having an intensive conversation about skin-color disparities in public schools unless the discussion is pegged to the one issue that parents have actually been trying to teach themselves for the past 13 months: Namely, when school buildings can finally fully reopen, instead of being overwhelmingly part-time and anti-scientifically susceptible to last-minute, 10-day closures. By far, the biggest educational news in Gotham during rounds one and two of the teach-in wasn’t about segregation, it was about Mayor Bill de Blasio finally announcing after two months of deliberation that he was relaxing the city rule mandating automatic school closure after just two positive test results for COVID-19. (Partly in response to that very noticeable change, 51,000 kids have changed their preference from fully remote learning to maximally in-school.)

There is a relevant story to be explored about unequal outcomes in remote learning. In New York City, as elsewhere in the U.S., a much higher proportion of white students than black students are attending school in person, though—also as elsewhere—parents of all ethnicities and backgrounds tend overwhelmingly to jump when given the real chance to send their kids to school full time. The resulting race and class disparities in learning loss (similar to gaps in COVID mortality) are indeed profound and worthy of urgent policy correction.

But that’s not the focus of this particular “teach-in.” The promo flyer for the series did not contain a single reference to the pandemic, while using the heavily freighted (and contestable) word “segregation” four times, plus an aspirational “desegregating” to boot. You can watch Part 1 for yourself, if you have the stomach for such progressive jargon as, “please try to be radically present today with us,” or tell us “something that describes the energy that your bringing to the space today.”

Since I have attended a dozen such meeting-lectures over the years (many featuring the same cast of speakers), received scores of such emails, interacted with battalions of such taxpayer-salaried activists, read far too many “reformer”-fluffing articles such as this, and observed my own middle-school kid cite in her homework such assigned authors as controversial “antiracist” Ibram X. Kendi, my patience for these exercises has long since ground down to the nubs. Not because of the subject matter—I have been writing about race in history and politics and criminal justice and sports and libertarianism for as long as I have been writing—but because I know from soul-numbing experience how one-sided, predictable, and never-ending these sermons will be.

It appears that I’m not alone in tuning this stuff out: That first teach-in video was still well south of 100 YouTube views as of Wednesday morning. (It is also true that parents still caught in hybrid limbo are not exactly overflowing with surplus discretionary time.)

But it strikes me that consumer detachment from the racial obsessions of the political/journalistic/entertainment class is likely to continue escalating, far beyond the neurotic confines of New York City education. Especially when applied to situations that don’t seem as immediately relevant as a white cop shooting an unarmed black motorist.

On Tuesday, for example, Rep. Ayanna Pressley (D–Mass.) tweeted out, “You can’t be anti-racist if you’re anti student debt cancellation.” Uh-huh. Actor Hank Azaria, wallet safely fattened by three decades of doing voice acting on The Simpsons, is making an apology tour this week for the “structural racism” of voicing (until last year) the beloved Indian immigrant character Apu. The Federal Reserve, according to a Brookings Institute study released Monday, is “overwhelmingly white, overwhelmingly male, and overwhelmingly drawn from the business communities…with little participation from minorities, women.”

Race, “equity,” and implicit bias are being prioritized at institutions that have other pressing tasks. The Centers for Disease Control and Prevention (CDC), whose pandemic role is so all-encompassing that it is now in charge of forestalling evictions, announced last week a major new initiative “addressing racism as an obstacle to health equity.”

“To build a healthier America for all,” the agency asserted, “we must confront the systems and policies that have resulted in the generational injustice that has given rise to racial and ethnic health inequities. We at CDC want to lead in this effort.” Similar initiatives are taking place throughout the administrative state, in fulfillment of President Joe Biden’s very first executive order, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.

Doing a Google News search for systemic racism will lead you to believe that either America is the most racist country on earth, or conversely that it is doing the most to confront its discriminatory past, or perhaps that it has simply lost its damn fool mind. There are full-page advertisements in U.S. newspapers this week accusing General Motors of systemic racism for not spending enough of its ad budget on black-owned media companies. “Low alcohol taxes uphold systemic racism,” Gresham, Oregon, City Councilor Eddy Morales co-wrote in The Oregonian Sunday. This Friday, the influential Columbia University Teachers College is holding a conference on “Decolonizing Psychology Training.” What say you, Pharmacy Times? “Pharmacists Have a Role to Play in Dismantling Systemic Racism.”

It is entirely possible to believe that the S.R.-term is 100 percent applicable in the previous paragraph’s examples while acknowledging that this language and utter preponderance sounds a bit goofy around the gills for a significant portion of the public who need to be persuaded if the sweeping changes advocated by activists are going to be enacted. Unless, that is, skeptics can be alienated into disengagement or intimidated into silence, leaving the remaining players on a shrinking field increased elbow room.

There certainly are readily apparent disincentives to poking your neck out and suggesting within an activist-dominated subculture—a school district, a college campus, a modern newsroom—that some of their current identitarian norms might be unwise. (It is also certainly true, while also probably attracting comparatively less notice in the national media, that daring to question orthodoxy in conservative-dominated settings carries its own personal dangers.)

Over on Bari Weiss’s Substack, a Manhattan private school math teacher named Paul Rossi told a harrowing story of what happened to him when, in his words, he “raised questions” at a “mandatory, whites-only student and faculty Zoom meeting” about the school’s categorization of people as being either “oppressor” or “oppressed.” Rossi says he even questioned at the meeting “whether one must define oneself in terms of a racial identity at all.” And then:

However, when my questions were shared outside this forum, violating the school norm of confidentiality, I was informed the head of the high school that my philosophical challenges had caused “harm” to students, given that these topics were “life and death matters, about people’s flesh and blood and bone.” I was reprimanded for “acting like an independent agent of a set of principles or ideas or beliefs.” And I was told that by doing so, I failed to serve the “greater good and the higher truth.”

He further informed me that I had created “dissonance for vulnerable and unformed thinkers” and “neurological disturbance in students’ beings and systems.” The school’s director of studies added that my remarks could even constitute harassment.

A few days later, the head of school ordered all high school advisors to read a public reprimand of my conduct out loud to every student in the school.

This is a one-sided version of an extreme edge case, yes. But it doesn’t take many of these—here’s another such story from last week—to let non-public figures know that there is a potentially frightful cost to expressing skepticism about prevailing mores surrounding personal identity, let alone asserting a directly contrarian view. For most people whose beliefs don’t fit neatly with the program, it’s just not worth it to pipe up: The training seminar will be over soon enough.

Weird things happen when people feel they cannot talk openly about a subject, and since that sense appears anecdotally (and also in some polling research) to be on the grow, it’s worth keeping an eye out for some trends. Here are a few predictions:

1) In-group jargon will become increasingly incomprehensible. Here’s an acidic linguistic analysis from Nicholas Clairmont in Tablet last year:

Here’s how you do it: You talk about platforms, and spaces, and bodies with your nouns. With your verbs, well, you just use more nouns, plus suffixes that don’t fit. For some reason, this year, you put “settler” before you write “colonialism.” The letter X is very in, as you may have noticed when Elizabeth Warren’s campaign did an event with a group called Black Womxn For. Or maybe you have by now read about the now-infamous wokese imposition of “Latinx” (pronounced Latin-ex) to name a group of people first designated by a Nixon administration-era census as an ethnicity, and whose members either haven’t heard or don’t want to be termed by that label rather than the supposedly problematic “Latino” or “Hispanic.” A recent New York Times essay by progressive strategists Ian Haney López and Tory Gavito found that, “Progressives commonly categorize Latinos as people of color, no doubt partly because progressive Latinos see the group that way and encourage others to do so as well. Certainly, we both once took that perspective for granted. Yet in our survey, only one in four Hispanics saw the group as people of color.”

Clairmont views such exertions as intentional barriers to entry erected by the over-educated classes to maintain their privilege, and there is surely something to that. But I would also suggest two more charitable interpretations: Every ascendant subculture creates its own jargon to identify fellow travelers and put fogeys on the defensive; and also, exclusionary in-groups over time just lose contact with the views and even language of those they have driven away. There is a lot of mutual incomprehension afoot.

2) Out-group reaction will become more reactionary. One of the subcategories of articles in a systemic racism Google News search is like this, from Louisiana Weekly: “Louisiana lawmaker wants to prevent teaching on systemic racism, sexism.” Faced with what they see as an authoritarian, always-encroaching sectarian movement marching through the institutions, some conservatives and libertarians are reaching for the stick of government to beat the hordes back.

Republican lawmakers these days are pushing illiberal bills to combat social media political censorship, enforce campus viewpoint diversity, punish students for kneeling during the national anthem, and retaliate against corporations that get too pushy about politics. Fueling such opportunistic politics is a kind of mirror-image monomania, in which many consumers and commentators cannot avert their gaze from media bias, culture wars, and/or critical race theory, even as more significant developments come and go without much comment.

3) The populism and collectivism of this political moment will only continue to grow. I take no pleasure in reporting this, etc.

Groups that can’t talk to one another, particularly if they are engaged in competition over power, become abstractions, menaces, conspiracy theories. It is a slog in these tribal times to insist on treating people as complex and human individuals rather than plug-and-play members of this or that group, yet I don’t see any other way out of this mess.

Atomization can generate personal liberation and tremendous amounts of creativity, so that’s what I am looking forward to in these hopefully roaring ’20s. But wherever the two tribes encroach into my business, like Clubber Lang, I predict pain.

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Here’s the new policy, which I understand has just been put up:

Zoom recognizes that we have a unique relationship with our higher education users…. We created this statement because our higher education users wanted to know where we stood. We want to stay true to our values to be transparent and incorporate the feedback of our customers in everything we do. While we understand that the physical campuses we know and love do not neatly translate to the virtual spaces of today, we owe it to our higher education users to align our approach to speech and conduct as best we can with those of the academic institutions we serve.

Academic freedom and freedom of speech are defining commitments for many of our higher education users, both inside the classroom and on the broader campus. In drafting this comment, we take special guidance from the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure.

This comment is for any higher education institution that has academic freedom policies substantially similar to the AAUP’s inside the classroom, or policies protecting speech on campus that are similar to the rules governing U.S. public universities.

For Zoom meetings and webinars hosted by a higher education institution, the Trust and Safety team will only act on reports alleging content-related violations of our Community Standards or Terms of Service that come from the meeting’s host or the account’s owners or administrators, unless:

• Zoom determines that there is legal or regulatory risk to Zoom if it does not act;
• the report alleges an immediate threat to the physical safety of any person; or
• the meeting or webinar is unrelated to the institution’s academics or operations.

Zoom will make best efforts to consult with the higher education institution as soon as is reasonably possible before acting on any complaints about violations of Zoom’s Community Standards or Terms of Service. On occasion, Zoom may require the higher education institution to put in writing that a particular meeting is related to the institution’s academics or operations, that the institution agrees to the meeting being hosted in its account, and that the meeting meets the institution’s standards for events on campus and online.

It’s a substantial improvement, I think, for academic institutions, whether one thinks that Zoom should also take a more hands-off approach (such as that mandated for phone companies, UPS and FedEx, and other such common carriers) to other users as well.

Here is a letter that the University of California Academic Freedom Committee (an organ of the faculty, rather than of the administration) sent Zoom about its old policy in February; the new policy appears to be a response to letters such as this one:

The University’s responsibility to protect academic freedom and freedom of expression cannot be outsourced. As we all know, UC currently relies heavily on platforms such as Zoom to facilitate our teaching, research, governance, and the public dissemination of knowledge. UC cannot, however, rely on private companies to protect the academic freedom on which those core university functions depend.

The threats here are not just hypothetical. Zoom has already canceled political events and academic discussions at other institutions, after receiving complaints and finding violations of their terms of service.[1] UCAF’s worries go beyond the facts of particular prior cases, which vary in potentially important ways. UCAF is concerned about dangers evident in UC’s own contract with Zoom, under which Zoom retains largely unfettered discretion to control what content it hosts. We suspect that Zoom is not alone in this regard.

Zoom’s Terms of Service,[2] which incorporate by reference the company’s Community Standards,[3] currently prohibit all of the following:

• “posting or sending hateful imagery,” where that is defined to include “symbols historically associated with hate groups (e.g. the Nazi swastika),” images of individuals altered “to include animalistic features,” and “logos, symbols, or images whose purpose is to promote hostility and malice against others based on” protected grounds such as race, gender, or religious affiliation;
• “the celebration of any violent act that may inspire others to replicate it”;
• depicting “any form of gory media related to death, serious injury, violence, or surgical procedures” or “media that depicts death, violence, or serious physical injury in graphic detail,” including depictions of “visible wounds” and “bodily fluids”;
• nudity, which is restricted “by default,” though Zoom “may make allowances” when “the intent is clear” that nudity is shared for “educational or medical reasons”;
• “impersonat[ing] anyone,” defined as “pretending to be someone you are not”;
• “use [of] another’s name or image without their permission”;
• engaging in activity that is false or misleading;
• communicating “any material that is . . . indecent.”

Zoom encourages users to report violations of its Terms of Use and Community Standards through its online “Trust Form.”[4]

From swastikas portrayed in history classes to nudity in art studios, from clinical training in the medical schools to impersonation by our theater clubs, mock trial teams, and school mascots, members of the University of California routinely violate Zoom’s terms and standards in the course of regular instruction, research, and extracurricular activities. Of course, Zoom may never enforce its terms and standards to the absurdly broad extent that their vague language would allow. (Insofar as it would never do so, Zoom should have no objection to clarifying and limiting its contractual language.) Under our current contract, however, the power to decide what content to allow lies with Zoom, not the University. This is an astonishingly open-ended threat to the University’s ability to carry out its fundamental mission.

Zoom has the ability to censor University content on the basis of criteria—such as indecency, falsity, goriness, or the promotion of hostility—that would be unconstitutional for the University to employ in some contexts, and a serious violation of academic freedom in many other contexts. This will surely make companies like Zoom an attractive target for those seeking to influence what gets said, taught, and studied at the University. The University needs to take steps to guard against such outside influence now—particularly now, when UC is so thoroughly reliant on the services of companies like Zoom.

To their credit, our colleagues in Academic Affairs and Information Technology at UCOP had begun meeting to discuss these issues even before UCAF raised them. On December 4, 2020, in a letter to the Council of UC Faculty Associations (attached [see pp. 6-7 of this PDF]), the University Provost also addressed the problem, reaffirming in his letter “that the University of California is committed to upholding and preserving principles of academic freedom.” Bringing attention to these principles is always welcome, but the present threat to them requires a stronger response.

Provost Brown writes in his December 4 letter that “Zoom is a private company that has the right to set its own terms of service in its contracts with users.” This is true, but incomplete: the right to set contractual terms is not Zoom’s alone; the University of California is party to the contract as well. UC has already negotiated additions to its contract with Zoom on issues of data security and privacy. Protecting academic freedom is no less vital. The University of California has the responsibility—and fortunately also the stature and market power—to negotiate terms of service that do not just facilitate the University’s core activities, but preserve the academic freedom that makes them possible in the first place.

UCAF therefore requests that Academic Council call on the administration to take the following steps:

First, negotiate with Zoom for contractual terms that protect the academic freedom of UC faculty and other teachers and researchers, the freedom of scholarly inquiry of UC students, and the First Amendment rights of the entire UC community. Content on University of California Zoom accounts should be censored only if hosting it would cause Zoom to violate the law. Any other content limitations should be left to the University.

Second, identify other platforms that UC faculty, students, and staff can use as an alternative if censorship by Zoom occurs or is feared. Provost Brown’s recent letter encourages faculty to “contact their local Information Technology Department for recommendations as to other vendors.” But the threat of censorship is one that affects the entire University. It results from university-wide contracting. A university-wide solution is therefore appropriate. UC should make available backup platforms that can be used for courses and other events while UC’s negotiations with Zoom proceed (or, certainly, if its negotiations fail).

Third, since Zoom is not the only private platform or service the University uses to carry out its core activities, UC should identify other contracts that might raise similar threats to academic freedom and free speech. A renegotiated contract with Zoom could provide a model for negotiations with those contractors, as well as for other universities grappling with similar concerns.

The University of California has an opportunity to be a leader on this important issue. UCAF asks that Academic Council endorse this statement of concern and proposed responses. Thank you for your consideration.

Sincerely,

Brian Soucek, Chair
UCAF

[1] See, e.g., “Zoom Blocks Activist in U.S. After China Objects to Tiananmen Vigil,” N.Y. Times (June 11, 2020), https://ift.tt/37j6cLI; Letter from CUCFA to UC President Drake (Sept. 24, 2020), https://ift.tt/2MTpod5; Letter from AAUP to NYU President Hamilton (Oct. 28, 2020), https://ift.tt/2YIjEp2. But see “US Charges Ex-Zoom Employee with Shutting Down Tiananmen Square Events,” BBC.com (Dec. 19, 2020), https://ift.tt/2KJ00Wo.

[2] https://zoom.us/terms/

[3] https://ift.tt/3oNkxHC

[4] https://ift.tt/2MWB3rg

Disclosure: I’m a member of the UCAF (in my capacity as the Chair this year of the UCLA Academic Senate’s Committee on Academic Freedom), and I generally agree with this letter, but I didn’t take the laboring oar on it, and thus shouldn’t get any of the credit.

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