Illustration shows a bathtub and an open laptop facing away from the viewer.  A copy of the magazine The Believer rests on the side of the tub.
Illustration by Michelle Urra

In Aftermath of Zoom Dick Fiasco, Believer Staffers Say, Bosses Used Public Records Law Against Them

Motherboard’s attempts to learn more about how a Zoom dick incident at The Believer led, staffers say, to a bizarre campaign.
June 1, 2021, 7:03pm

Long before Joshua Wolf Shenk reportedly stepped out of his bathtub and into infamy as the latest media figure to expose his penis to colleagues via Zoom, there were already issues at The Believer, the prestigious literary magazine where he served as editor-in-chief. And months after his departure, the fallout is still affecting staffers there, one of whom has resigned in protest. Staffers at both The Believer and the Black Mountain Institute—an affiliated institution that is, like the magazine, part of the University of Nevada, Las Vegas—say that records requests from Motherboard seeking documents about how UNLV handled both the bathtub incident and previous complaints about Shenk were improperly used to intimidate staffers.

The situation is both highly unusual and deeply rancorous: Maxwell Neely-Cohen, the staffer who resigned in protest, for instance, was involved in fundraising, and told UNLV that its handling of the records requests cost the university “millions of dollars” in donations, in a resignation letter obtained by Motherboard. It’s just the latest dramatic turn in the strange saga of an uncomfortable relationship between a respected literary magazine and the academic institution that houses it.  

“As UNLV’s leadership goes, I never have any idea where incompetence ends and nefariousness begins,” Neely-Cohen, who was editor-at-large at The Believer for three years before his resigning in protest this week, told Motherboard. “I just don’t know.” 

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In late April, a Los Angeles Times story broke the news of the Zoom dick incident and of Shenk's resignation from his roles as EIC and as director of the Black Mountain Institute (BMI). The version of events presented to the paper by Ira Silverberg, a famed literary personality acting as an advisor for Shenk, was that Shenk had, while wearing a mesh shirt, taken a bath during a February staff meeting to ease pain from his fibromyalgia, and inadvertently displayed his penis to Believer staffers when he stepped out of the tub. The article, which touted Shenk's many achievements but didn't manage to quote any of his colleagues, portrayed the incident as a ludicrous and regrettable but isolated one-off. 

Subsequently, an anonymous open letter from staffers at The Believer and BMI, a statement from former BMI staffer Joseph Langdon describing open mutiny against Shenk over his conduct, a Defector article by Believer features editor Camille Bromley, and an article by writer Brittany Bronson, who formerly taught in UNLV's English department, in the Nevada Independent significantly complicated the picture. The issue, they made clear, was not that the staff was too fragile or ungenerous to countenance having been inadvertently flashed, but what they said was a long, frustrating history of mismanagement. 

"Our experience of Shenk," staffers wrote in the open letter, "is that he was an inattentive and negligent boss who created a fractured workplace rife with pay and labor inequalities, and whose behavior on the Zoom call matched a pattern of callousness and abusive disregard for the staffers who worked under him." Langdon wrote that Shenk, upon beginning his roles at BMI and The Believer, had “only the vaguest understanding of our programs and publications and little interest in learning about them” (Silverberg told Motherboard, "This is office politics intensified by the academic culture," and urged Motherboard to speak to “persecuted writers” whom Shenk had “brought to town and supported." The particular writers he recommended we speak to couldn’t be reached for comment.) 

"This is office politics intensified by the academic culture," Shank’s adviser said.

As Bromley wrote, Shenk remained on paid leave for two months following the incident. She also wrote that the bathtub incident wasn't precisely an isolated one, but to be viewed within the context of “a whisper network warning workers and students about Shenk’s behavior [that] stretches back years at UNLV.” The anonymous open letter published on Medium on May 3, written by staffers at The Believer and BMI, fleshed out some details of what that whisper network was about. The letter’s authors stated that Shenk had a reputation both in and out of the office for “making women uncomfortable” and that employees felt pressured to have “casual personal relationships with him.” Langdon's statement said, "Shenk turned a vibrant institution into one in which female students hid in their offices in the dark to avoid him."

Two female Believer staffers—who, like other current staffers who spoke for this article, were granted anonymity because they fear for their jobs—independently told Motherboard that they had been warned about Shenk's conduct before or early on in their tenures. He made female staffers deeply uncomfortable, according to the accounts of four current staffers, though none said he had sexually harassed them. “He doesn’t seem to be aware of his body or of other people’s comfort or reality,” one staffer said, dryly. 

Do you work at a literary magazine or in an academic institution and know something you think the public should be aware of? We would love to hear from you. Contact the reporters at anna.merlan@vice.com or tim.marchman@vice.com, or via Signal at 267-713-9832.

A staffer who said she didn’t write the letter told us, “I was told by someone in management that if I wanted Josh to take my concerns seriously, I needed to be warmer with him and be more emotionally open with him” making him feel “like a friend.” Shenk would insist they have dinner or hang out as opposed to having a normal work meeting, something she found frustrating, particularly at a time when many people on staff were contractors, being paid very little, and asked on top of that to perform a pantomime of befriending their boss, who was, according to public documents, earning over $200,000 in base pay

Shenk agreed to answer a few specific questions, though most were answered by Silverberg, his adviser. On the accusation of making women uncomfortable, Shenk told Motherboard via email, “I’m often awkward around folks regardless of their gender, and I own that. In imaginative spaces, you’ve got to balance deep appreciation for people’s boundaries with openness and creative risks. For any times I got that balance wrong, though, I want to learn from them and make amends.” 

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The authors of the open letter also wrote that Shenk’s tenure at the magazine and BMI was “marked by breathtaking pay inequity and tokenism.” They said, too, that a Title IX investigation into the bathtub incident was set to begin until Shenk resigned.

Current BMI and Believer staffers described Shenk's management as chaotic and ineffective, with a particularly troubling pattern of underpaying staffers of color. One person said that at one point, every person employed as a full staffer with benefits was white, while everyone who was a person of color was on contract. 

“He had a clear pattern of tokenizing in the most literal sense,” one person told Motherboard.

“His criticisms were always over the top. And he mentioned many times to me that he prided himself in running these institutions like startups.”

Silverberg, in response, said that Shenk had created 6.5 salaried positions, with benefits, for women of color and had a pending full-time offer to another woman of color out at the time he left. "These numbers represent a commitment to DEIA principles," he wrote. "They exist in all aspects of BMI/The Believer’s work.”

Everyone interviewed who worked at the magazine described Shenk as a basically absentee editor-in-chief who poured his energy into other aspects of BMI: a radio show connected to The Believer, for instance, and fundraising. He nonetheless managed to make people who worked underneath him miserable, they said. 

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“There were never firm expectations and it was always communicated to me that I was failing in certain areas,” one person said, describing working closely with him. “His criticisms were always over the top. And he mentioned many times to me that he prided himself in running these institutions like startups. We were under the same working conditions.” 

Silverberg told Motherboard that Shenk doesn’t precisely dispute a characterization of the BMI/Believer work environment as “toxic.” 

“That’s a fair statement,” Silverberg wrote. “It was a tough situation. The toxicity came from an institutional crisis, which was an intensified version of what all institutions face when there’s new leadership."  

Believer and BMI staffers also expressed deep frustration over UNLV's handling of complaints, including what multiple people with direct knowledge described as a previous Title IX complaint filed against Shenk in 2018 or 2019. (Silverberg and Shenk declined to say whether or not Shenk had been the subject of a Title IX complaint, telling us we would have to ask UNLV. The university, to which Motherboard has filed records requests related to Title IX incidents, said it does not comment on personnel matters.) 

The most recent action causing stress and panic among Believer and BMI staff was, ironically and unintentionally, an open records request filed by the authors of this piece. 

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On May 4, Motherboard filed a request with UNLV under Nevada's Public Records Act seeking documents mentioning several keywords dated from February 1 and created by staff at UNLV's College of Liberal Arts or media relations office, the office of UNLV's president, Black Mountain Institute, or The Believer. Two weeks later, on May 20, the university asked Motherboard to clarify whether it was seeking documents containing all or any of the keywords it had provided. "Additionally," the university wrote, "please define whose correspondence you are requesting when you state 'staff' at the College of Liberal Arts, the Black Mountain Institute, and the Believer Magazine." That same day, Motherboard responded, clarifying the request to state that it was seeking documents sent to or from five specific UNLV staffers, only one of whom works at The Believer, and also filed a second, distinct request.

Curiously, while this second request was received and processed on May 20, internal records provided to Motherboard by UNLV show that the clarification of the first request was only received on May 26, several hours after Motherboard reached out to the university's public affairs office for comment on this article.

(Michael Morisy of Muckrock, the platform Motherboard used to submit these public-records requests, said that per his team's communications with the vendor that handles the portal used to communicate with UNLV, things appear to have been "buggy." Screenshots of text messages reviewed by Motherboard, though, show that the clarification was in the possession of UNLV staff on May 25, even as public affairs staff was asking Believer staffers for records Motherboard had made clear it was not seeking.)

Joshua Wolf Shenk eats a sandwich.

Joshua Wolf Shenk sinks his teeth into a pastrami sandwich during the first day of business at the newly re-opened 2nd Ave. Deli. The famed noshery moved from its original location on Second Ave. and E. 10th St., where it had been since opening in 1954, to its current space at E. 33rd St. between Lexington and Third Aves., after a rent dispute in January 2006. (Photo by Susan Watts/NY Daily News Archive via Getty Images)

While Motherboard and UNLV were going back and forth on these records requests, the university was seeking—overzealously, in the view of staff—to fulfill them. In a May 19 email to Believer staff, a public affairs official told staff, including people who were not employees of the magazine or UNLV, like contractors and contributors, that under state law Motherboard's initial request required them to turn over private texts and emails. The public affairs official attached a .pdf file to the email of a 2018 Las Vegas Review-Journal story on a decision by the Supreme Court of Nevada stating that public employees' personal devices are not exempt from disclosure.

Experts in Nevada public records law agreed that while that law is a robust one that covers public business done on private devices, UNLV's demands that Believer staff turn over personal communications raised issues.

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Patrick C. File is an assistant professor of media law at the Reynolds School of Journalism at the University of Nevada, Reno and the president of the Nevada Open Government Coalition. He told Motherboard that emails and other communications from the Believer staff would be subject to state public records laws whether or not they were on a government-owned device or account, because the 2018 state Supreme Court ruling "prevents government entities and officials from avoiding public scrutiny by using private devices or accounts for public business." This would only apply, though, if the communications pertain to “a service rendered in the public interest”—which it's not clear that, say, a Believer staffer's personal text messages to a friend complaining about Shenk would.

(Magie McLetchie, an attorney in Nevada who litigates public records matters and a transparency advocate, told Motherboard in an email that "In keeping with the broad nature of the [Nevada Public Records Act] and its important purpose, even if personal cell phones or devices are used to conduct the people’s business, those records are public records. However, that does not mean that a governmental entity can use a public records request as an opportunity to flush out whistle blowers or get access to private communications such an employee’s private communication to his or her friend complaining about inappropriate work conditions.")

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Further, File, said, he is “less clear on whether the state entity can compel someone who is not a public employee to hand over public records; I’m not sure whether Nevada courts have addressed that.” 

 In any event, on May 20, faced with demands for communications he viewed as private from the university, and finding them egregiously invasive and questioning their legality, Maxwell Neely-Cohen resigned, in a letter he subsequently provided to Motherboard:

Having spoken to my legal team, there is united disagreement with the interpretation that the statute applies to me in my capacity with The Believer. If UNLV disagrees, we happily and eagerly look forward to seeing you in court. When being brought onto The Believer, I was specifically and repeatedly told, including in writing, that I would not be a UNLV employee or state employee. The idea an email address magically makes me one in direct contradiction to what was agreed and signed between us is a laughable interpretation of the definition of employment.

You are absolutely welcome to look through and access all communications on the max@believermag.com account (password [redacted]), an account which I never sent a single message from.

I hereby resign my position at The Believer effective immediately. I have no interest in being affiliated with an organization that is using a ruling aimed at elected officials to bully mere literary magazine employees and contributors into disclosing their private communications. While my personal status may be unique, what you are doing to my colleagues, who unlike me may be state employees, is needless in addition to being wrong. An institution with any integrity would be supporting their workers by challenging the hilariously specious standards under which such a standard could apply.

You can inform the development team that the institutional funders I was lining up, the donation from my foundation that was to occur in 2022, and the future bequests in my estate, are canceled. And on a personal note, this is really not the best way to communicate with someone who is in the process of raising and personally contributing tens of millions of dollars to UNLV.

Four days after that—which was also four days after Motherboard had sent a clarification of its initial records request and filed its second one—Believer staffers and volunteers received a cryptic communication reminding them that "the UNLV Office of Public Affairs is the only office authorized to handle public records requests on behalf of the university. To ensure the integrity of our process, staff members should not contact that individual or organization that made the public records request."

What prompted this email is unclear; UNLV did not directly answer when asked. It’s also unclear precisely why UNLV was pushing so hard for private communications—staffers were given to understand they could be fired for failing to comply, and told that doing so would constitute insubordination and a violation of state law—or what the institution planned to do with them. 

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Staffers were divided on how to treat the records request. “A few of us have sought legal counsel,” one person told us. “The lawyers we’ve spoken to agree the interpretation that UNLV is taking is completely ridiculous.” Some staffers didn’t respond by the deadline, while others made a good faith effort to release what they thought were responsive communications, even as they worried about providing private and sometimes sensitive information to the school. 

“I felt nauseous when I sent that email in.”

“There’s no explanation of how the review process works when we submit our records,” a staffer told us. One hypothetical scenario people worried about was whether a survivor's discussions of rape, using the requested terms, would be subject to release.  

“We’re not worried about the requesters, about you guys,” the same person said. “We’re worried about what university officials are going to be reading our private correspondence, much of which is critical of the university. “

“I felt nauseous,” another person told us, about turning over their responsive communications, “when I sent that email in.” 

It appears that the situation abruptly resolved itself. On May 26, soon after Motherboard contacted UNLV’s media relations office with a request for comment about the communications they were instructing BMI and Believer staffers to turn over and other matters covered in this article, UNLV reversed course. In an email, the university told people subject to the request that they’d received the clarifications to our initial request that day. (Motherboard had in fact sent those clarifications in six days prior, alongside another request that was, somehow, received and promptly processed.)

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“Your affidavits and/or records are no longer required and they will not be retained by Public Affairs,” the email to staffers added. 

UNLV did not respond to Motherboard's questions about the ways it interpreted the request or the demands placed on Believer and BMI staff to produce private communications. Staffers, though, continue to consider the episode overreach aimed at silencing them—something they say they have experienced ever since the Zoom incident.

Shenk is not without his defenders. Silverberg recommended Motherboard reach out to several people who would speak to Shenk’s character, including Rory Reid, the CEO of the Rogers Foundation, a large charitable trust in the state. 

“I think Josh Shenk was a gamechanger for the cultural scene in Las Vegas,” Reid told Motherboard. “He was a creative type, unlike what we’re used to getting the benefit of in our town. Because of his experience in the literary world, he made the Black Mountain Institute better and we appreciated his work.” 

Reid “understood why [Shenk] resigned,” he said. “He made, as he’d say, an awful mistake and he regrets it. So I was saddened for him and for everyone that was involved in the unfortunate incident. But I don’t think we should forget all the good things he did. That mistake shouldn’t overshadow all the good he did for Black Mountain Institute, for the city of Las Vegas. I hope that people remember the good and not just the last scene of his Vegas experience.” 

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Another person responded to us on the condition of anonymity; they’re a member of the Las Vegas literary scene familiar with Shenk’s work. They told us, “Nobody can speak to you because one way or another they could lose their jobs and they’re terrified by the Twitter storm, etc... Everybody’s sick about it, but the prospect of legal action is a mighty one. I’m not sure what UNLV’s reach is, or if this is true at other universities, but it does appear draconian.” They added, “The situation has been very harmful for the good people who run BMI/The Believer, and they’re all suffering as much by the stress of the bad publicity as by watching a quirky friend, who changed our community for the better—and lifted up his accusers—go down."

The same person suggested that the backlash against Shenk hadn’t been proportional to the violations he was accused of. 

“Those who have brought charges against Shenk, contacted the media, and written the Medium letter destroyed a man's life, his reputation, and cultural institutions that we were proud of. To me, that's just wrong,” they wrote in an email. “If he'd been running around raping and torturing people, yeah—get him! But for asking a staff member to go out to eat? When he'd been coached to reach out to staff members? What really astonishes me are those who jumped on the bandwagon, pointing their fingers, without direct knowledge of the original incident or a relationship with Shenk."

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According to staffers, though, in some ways, the Zoom incident, as offensive as they found it, was not a surprise. Everyone we spoke to said the work culture Shenk created was deeply troubled from the start. “It was an environment of distrust and chaos and sometimes fear,” Neely-Cohen said. (Silverberg said, “Clearly, Josh had his limits as a manager, especially as BMI grew under his leadership. He repeatedly asked his bosses at UNLV to support a new position to help manage the staff day to day. He offered to cut his own salary to support a new senior position. This was refused. He later asked to cut his pay to boost staff salaries.”) 

One puzzling thing—which speaks to the concerns of staffers that their voices haven't been heard—is that while the Los Angeles Times story, relying on Silverberg's account, presented Shenk as having been in the bathtub, exposing himself by mistake when he stood up, no one who was actually on the call and who spoke to Motherboard found that to be a credible version of events. One person said that Shenk had told different stories to multiple people: that he’d been on the toilet with a towel covering him, for instance, or that he’d sought to keep his relevant parts under wraps with a robe. 

“It never crossed my mind that he was in water,” one person said. Nor was he wearing a “mesh shirt.”

“It never crossed my mind that he was in water,” one person told us, saying they never heard splashing sounds, for instance, during the duration of the 90-minute meeting. Nor was he wearing a “mesh shirt,” as Silverberg was quoted as having told the Times. Instead, Shenk was wearing an ordinary white t-shirt and had a BMI Zoom background in place, a black backdrop dotted with colorful planet-like spheres. (These descriptions of how Shenk appeared on the call were corroborated by screenshots showing him from the shoulders up which were provided to Motherboard; images of him showing his penis were neither sought nor provided, and no one said they’d taken a screenshot of the incident.)

Silverberg believes the description of Shenk having worn a mesh shirt originated with his having told a Times reporter that Shenk was wearing a shimmel shirt, a cropped athletic shirt sometimes worn by football players. For his part, Shenk said via email: “After the shock receded, I told the true (and embarrassing) story of the tub mishap to tons of friends and colleagues, and it never varied. But over my vehement protests, UNLV forbade me from telling the simple truth to the people affected, the BMI staff. So I get why there might be confusion and frustration over this.” 

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The flashing incident happened in the “last 30 seconds of the meeting,” a staffer told us. “He was like wrapping up, thanking us all for being there, and then it seemed to me that he stood up. It could’ve also been that the camera moved down. It was so fast. One of my other coworkers was the host and ended it as soon as it came into frame.”

Almost immediately, staffers started texting each other in bafflement. “It was so bizarre,” one staffer said.

“I wasn’t surprised in the sense that it seemed like something that would happen,” one person said of the dick incident. “Like, of course there would be this. I don't think it’s fair to categorize him as someone who’s predatory, but you can categorize him as someone who just didn’t care. He didn’t have any respect for boundaries or comfort or what his coworkers deserved from him in terms of attention or time or decency.” It was, the same person added, “sort of the culmination of a very long time of like negligence and being self-centered. It seemed like the natural last step in a very long process." 

In May, after the Times story was published, Shenk’s exposing himself to staffers generated a vigorous round of discussion on Twitter, focused on whether staffers had been too “sensitive” in objecting to seeing their boss’s dick over Zoom. Staffers were in fact sensitive to the fact that Shenk appeared to live with chronic pain, they told Motherboard.

“When he interviewed me, I was like, 'OK, this is someone who’s living with a lot of pain and has a lot of things set up to make him comfortable in his space,'” one person told us. “Maybe he’s going through a lot. I have a lot of empathy for that.” But Shenk’s lack of awareness of his own body, and the discomfort he caused others, was harder to stomach, the staffers said. 

Neely-Cohen said that in his understanding, staffers at the magazine experienced Shenk as a particularly ineffective boss. “He was the worst leader i’ve ever interacted with,” he said. “He’d start ideas and never finish them. He didn’t seem to understand how to get the best out of people. And he was just all over the place all the time. It was insane. There was no continuity and no real focus and you’d be asked to work on something or go over an idea and it would disappear.” This was, as the anonymous letter writers outlined, particularly galling given the salary disparity between him and other staffers underneath him. (Silverberg said, "This was a start-up environment. Many new ideas were ventured, and not all came to fruition. The biggest was to make a literary magazine that could be entwined with an under-served but amazingly rich local culture like Las Vegas. They did. This is extraordinary in a University setting.”)

Neely-Cohen’s work involved fundraising, and he found basic structural issues there.  A central one, he said, was that the Black Mountain Institute didn’t necessarily have the same interests as the magazine. (Many people we spoke to said that the relationship between UNLV and The Believer was distant at best before Shenk's departure and the consequent fallout; all the Believer staffers work remotely, while BMI and UNLV staff live in Las Vegas. “I don’t think they understand us or the position we have within media,” one person told us. “They’re looking at us as a partially university-funded program.”) 

The relationship between BMI and The Believer was "vampiric," Neely-Cohen said, using a nationally recognized brand name to gain status and influence without giving it the resources it needed to exist on its own terms.

“We’ve done excellent work. We know how our workplace should function. We don’t need anonymous, ill-informed university overlords to make decisions for us.”

Several Believer staffers told us that the Zoom incident could have, and should have, forced a larger discussion about how dysfunctional and fractured the workplace was—the ways that BMI and Believer staff, for instance, were siloed from each other. And one staffer expressed a hope that going forward, The Believer wouldn’t have an editor-in-chief any longer, as it didn’t when the magazine was founded in 2003. “A horizontal leadership would be great and would function well,” they said, pointing out that this would not be a new arrangement, given what they said was Shenk’s absenteeism. “That’s practically how we function currently.” 

Going forward, the same staffer said, they’re holding out some hope that UNLV and BMI will allow the staff to self-govern to some degree, and that they won’t be held to the whims of another unpredictable or unclothed EIC. “We’ve done excellent work,” they said. “We know how our workplace should function. We don’t need anonymous, ill-informed university overlords to make decisions for us—especially not ones that affect our daily professional lives and the quality of work.”