BY HANK REICHMAN

When last October Zoom declined to host seminars at San Francisco State University and New York University because one of the speakers, Leila Khaled, was associated with a group deemed “terrorist” by the U.S. government, which the company suggested might make it legally vulnerable, faculty groups and defenders of academic freedom protested.  Among the most significant actions was a letter prepared by the University of California’s Academic Senate Committee on Academic Freedom (UCAF) and endorsed by the Senate’s Academic Council.  It called on the U.C. system administration to negotiate with Zoom for new contractual terms that protect academic freedom, scholarly inquiry, and First Amendment rights.  In response, UCAF chair Brian Soucek, a professor of law at U.C. Davis, and U.C. Associate Vice Provost for Academic Personnel and Programs Amy K. Lee worked with Zoom on the issue.  Those negotiations bore fruit — and not only for U.C. — when on April 13 Zoom released a new policy for higher education users that gives content moderation rights to universities and, thereby, protects academic freedom.

Writing on this blog, I applauded the announcement as “a significant advance,” but expressed concern that “the new policy does not yet clarify how Zoom will handle its responsibilities under a federal law barring ‘material support’ for terrorism, which the firm invoked when it censored” the programs at San Francisco State and New York universities.   Sure enough, just a week after it debuted the new policy, Zoom, along with other private internet platforms, including Facebook and Eventbrite, cancelled a U.C. Merced webinar featuring Ms. Khaled out of concern that the event could violate federal law by providing “material support” to a terrorist organization.

More than a few legal scholars have argued (see also this survey from the Congressional Research Service) that providing an opportunity to speak need not be construed as providing “material support.”  At San Francisco State the administration said they would have permitted the program to proceed had it been possible to hold it in person, urging Zoom to take a similar stance.  However, as law professor Steven Lubet pointed out on this blog, Zoom and the other firms that declined to host the programs are not universities but “publicly traded companies, with fiduciary duties to shareholders” and therefore “were rather playing it safe in a volatile and unprecedented situation.  I would like to think that no university would have acceded to complaints about the Khaled webinar — just as SFSU did not cave – but businesses answer to a different constituency.”

On April 28, the U.C. Academic Council unanimously endorsed the following letter to U.C. President Michael Drake, prepared by UCAF.  The Council asked President Drake and other administrators to request clarification from the Department of Justice on the reach of the “material support” statute or “to take other similarly urgent legal steps to protect academic freedom.”  The letter says,

This week, an academic event co-sponsored by UC’s Humanities Research Institute and a faculty member at UC Merced was canceled because the private platforms that were needed to publicize and broadcast the event refused to do so, due to worries about a federal law prohibiting material support for foreign terrorist organizations.

The cancellations by Zoom, Facebook, and Eventbrite follow similar actions taken last Fall, when scholars at other universities attempted to hold online events involving a Palestinian activist, Leila Khaled.  As you will remember, after those events were canceled, UCAF and Academic Council issued statements calling on the University to negotiate with Zoom and other platforms to protect free speech and academic freedom at UC “by granting UC full content moderation rights within the bounds of the law.”  After productive talks with members of UC’s faculty and administration, Zoom recently agreed to our request, issuing a new content moderation policy that applies not just to UC, but to all its higher education users.  Zoom’s new higher education policy does, however, allow Zoom to cancel events when it “determines that there is legal … risk to Zoom if it does not act.”  This is the provision Zoom relied upon in refusing to allow this week’s planned event involving Ms. Khaled, “given her affiliation with a U.S. designated foreign terrorist organization.”

The potential legal risk to Zoom—the reason it canceled an academic event sponsored in part by UC faculty—stems from the federal material support statute, 18 U.S.C. § 2339B, which establishes criminal fines and prison terms for anyone who “knowingly provides material support or resources to a foreign
terrorist organization.”  The U.S. Supreme Court considered the reach of this statute in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), but important questions remain, specifically about whether the statute applies to an academic discussion like the one just canceled.  Uncertainty in the law has a chilling effect on speech—and here, on academic freedom.  Fearing even a possibility of criminal liability, companies like Zoom refuse to provide the services on which our academic operations currently depend.  Faculty too may shy away from planning events that even conceivably might result in fines or incarceration.

For this reason, the Committee on Academic Freedom asks Academic Council to join us in calling upon the University to file a preenforcement lawsuit, or to take similarly urgent steps, to clarify the reach of the federal material support statute.  Our faculty and students “should not be required to await and undergo a criminal prosecution” [See Humanitarian Law Project, 130 S. Ct. at 2717 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 289 (1979)).] to know whether their academic activities are protected by the First Amendment, or criminalized under the material support law.

As UCAF has said before, “the University’s responsibility to protect academic freedom and freedom of expression cannot be outsourced.”  Taking the legal steps necessary to provide clarity about what kinds of academic activities the law allows is ultimately the University’s responsibility, not that of Zoom or any other private company.

UCAF appreciates your attention to this important matter.

Sincerely,

Brian Soucek, Chair, UCAF

As these developments were unfolding, U.C. faculty also learned that the system’s administration had proposed a series of revisions to its Universitywide Police Policies and Administrative Procedures, with faculty given a deadline of May 7 to submit comments.  As UCLA historian (and AAUP Committee A member) Michael Meranze argued on the Remaking the University blog, the proposals “ignore the wide-ranging debates and criticisms of UC policing over the last year–including those from the Academic Council.”  Instead, the revisions promise “an even more militarized and coercive structure for” the university’s police department (UCPD), demonstrating “a complete disregard for community concerns.”  The UC proposals were made public just days before the AAUP released a report “On Campus Police Forces,” which “argues that the present form and function of campus police forces is in tension with core AAUP values and . . . urges AAUP chapters to use their power to change this situation.”

In an April 27 letter to President Drake, the Council of University of California Faculty Associations (CUCFA), an AAUP partner organization, called the proposals “unacceptable” by virtue of the “regressive content of the proposed changes, the undemocratic and opaque processes through which they have emerged, and the administrative hypocrisy around racial justice they reveal.”

The CUCFA letter argues that each of four major revisions has “troubling” elements:

The Use of Force policy minimally conforms to statewide legislation that bans carotid holds but does not otherwise address police violence.  The Body Worn Video Camera policy legitimizes numerous discretionary opt-outs that protect the police use of force and not those who are its targets.  The proposed change to the Concealed Carry Weapons policy presumes that only a heavily armed police force, including its retirees, can ensure public safety.  Most disturbing of all is the Systemwide Response Teams policy, which serves to further militarize our campuses and communities through a UC-version of the National Guard authorized to deploy military-grade weaponry and tactics in the name of “riot control.”

The letter goes on to point out that the changes run counter to publicly expressed positions of a range of critical campus groups:

The University of California Student Association issued a statement calling for the UC Police Department to be “disarmed and dismantled.”  The UC Academic Council, representing the academic senates of all ten UC campuses, approved a set of recommendations that included “substantially” defunding the UCPD, banning UCPD officers from carrying firearms, and dissolving any partnerships with non-UC law enforcement agencies.  AFSCME 3299 [which represents large numbers of staff members) has called for the dismantlement and dissolution of the University of California Police Department, and an end to all University contracts with local police agencies in their Resolution on Police and University Policing.

The letter, signed by CUCFA president and U.C. Santa Barbara film studies professor Constance Penley and vice-president and U.C. San Diego history professor Wendy Matsumura, concluded:

The campus community demands a deliberative process to implement these changes, alongside practical models of safety and community-based care already well-established and well-known.  Crucially this process must include those most harmed by current police policies.  We ask that UCOP rescind the deadline for comments on the proposed revisions as a necessary step to fostering rather than obstructing the urgent collective reimagining of public safety called for by thousands of UC faculty, staff, students, surrounding communities, and even UCOP and the Regents.