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A Virginia statute restricting state employees from accessing sexually explicit material on computers owned or leased by the state does not infringe on the First Amendment rights of employees in general and university faculty in particular, the 4th U.S. Circuit Court of Appeals held June 23 in a 7-4 vote, reversing the district court’s decision ( Urofsky v. Gilmore, 4th Cir., No. 98-1481, 6/23/00). The appellees, six professors employed by various public colleges and universities in Virginia, brought this action in the U.S. District Court for the Eastern District of Virginia, challenging the constitutionality of Va. Code Ann. �� 2.1-804 to -806, which restricts state employees from accessing sexually explicit material on computers that are owned or leased by the state. The district court in Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998) granted summary judgment in favor of the appellees, reasoning that the act unconstitutionally infringed on state employees’ First Amendment rights. A panel of the 4th U.S. Circuit Court of Appeals reversed that decision in Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. 1999), holding that the appeals court’s prior en banc opinion in Boring v. Buncombe County Board of Education, 136 F.3d 364, 368-69 (4th Cir. 1998) (en banc), compelled the conclusion that the restriction on state employees’ access to sexually explicit material on computers owned or leased by the state is constitutional because the act regulates only state employees’ speech in their capacity as state employees, as opposed to speech in their capacity as citizens addressing matters of public concern. A majority of the active circuit judges then voted to hear the appeal en banc. The central provision of the act states:
Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act.

When the district court ruled, and when the panel initially considered this appeal, Va. Code Ann. �2.1-804 defined “sexually explicit content” to include:

(i) any description of or (ii) any picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in �18.2-390, sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in �18.2-390, coprophilia, urophilia, or fetishism.

Following the court’s panel decision, the Virginia General Assembly amended the definition of “sexually explicit content” to add the the word “lascivious,” so that it now reads:

content having as a dominant theme (i) any lascivious description of or (ii) any lascivious picture, photograph, drawing, motion picture film, digital image or similar visual representation. �

Writing the majority opinion of the court, Judge William J. Wilkins stated, “As its language makes plain, the Act restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state. But, the Act does not prohibit all access by state employees to such materials, for a state agency head may give permission for a state employee to access such information on computers owned or leased by the state if the agency head deems such access to be required in connection with a bona fide research project or other undertaking. Further, state employees remain free to access sexually explicit materials from their personal or other computers not owned or leased by the state. Thus, the Act prohibits state employees from accessing sexually explicit materials only when the employees are using computers that are owned or leased by the state and permission to access the material has not been given by the appropriate agency head.” The court noted that none of the appellees had requested or been denied permission to access sexually explicit materials pursuant to the act. ‘RIGHTOF ACADEMIC FREEDOM IS LIMITED The appellees maintained that the restriction imposed by the act violates the First Amendment rights of state employees. They first claimed that the act is unconstitutional as to all state employees; failing this, they argued more particularly that the act violates academic employees’ right to academic freedom. The court wrote that the speech at issue here — access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties — is clearly made in the employee’s role as employee. “Therefore, the challenged aspect of the Act does not regulate the speech of the citizenry in general, but rather the speech of state employees in their capacity as employees. It cannot be doubted that in order to pursue its legitimate goals effectively, the state must retain the ability to control the manner in which its employees discharge their duties and to direct its employees to undertake the responsibilities of their positions in a specified way,” the court wrote. “Because, as Appellees acknowledge, the challenged aspect of the Act does not affect speech by Appellees in their capacity as private citizens speaking on matters of public concern, it does not infringe the First Amendment rights of state employees.” Alternatively, the appellees maintained that even if the act is valid as to the majority of state employees, it violates the First Amendment academic freedom rights of professors at state colleges and universities, and thus is invalid as to them. “In essence, Appellees contend that a university professor possesses a constitutional right to determine for himself, without the input of the university (and perhaps even contrary to the university’s desires), the subjects of his research, writing, and teaching,” the court wrote. “Appellees’ insistence that the Act violates their rights of academic freedom amounts to a claim that the academic freedom of professors is not only a professional norm, but also a constitutional right,” the court wrote. “We disagree.” The court noted that the Supreme Court has never set aside a state regulation on the basis that it infringed a First Amendment right to academic freedom and has never recognized that professors possess a First Amendment right of academic freedom to determine for themselves the content of their courses and scholarship, despite opportunities to do so. Taking all of the relevant cases together, the court wrote, the best that can be said for the appellees’ claim that the U.S. Constitution protects the academic freedom of an individual professor is that teachers were the first public employees to be afforded the now-universal protection against dismissal for the exercise of First Amendment rights. “Nothing in Supreme Court jurisprudence suggests that the ‘right’ claimed by Appellees extends any further. Rather, since declaring that public employees, including teachers, do not forfeit First Amendment rights upon accepting public employment, the Court has focused its discussions of academic freedom solely on issues of institutional autonomy. We therefore conclude that because the Act does not infringe the constitutional rights of public employees in general, it also does not violate the rights of professors,” the court wrote. “We reject the conclusion of the district court that Va. Code Ann. ��2.1-804 to -806, prohibiting state employees from accessing sexually explicit material on computers owned or leased by the state except in conjunction with an agency-approved research project, infringes upon the First Amendment rights of state employees. We further reject Appellees’ contention that even if the Act is constitutionally valid as to the majority of state employees, it is invalid to the extent it infringes on the academic freedom rights of university faculty. Accordingly, we reverse the judgment of the district court,” the court wrote. CONCURRENCES AND DISSENT In a concurring opinion, Judge J. Michael Luttig wrote that, while he also felt that Virginia may regulate its employees’ access to “bestiality, lewd behavior � sexual excitement, sexual conduct or sadomasochistic abuse � coprophilia, urophilia, or fetishism,” as the statute states, he felt it was important to subject Judge Wilkinson’s opinion to detailed analytical scrutiny. He found Wilkinson’s conclusions “analytically indefensible,” noting in particular his vacillation as to what exactly the speech at issue is. “The only speech that Judge Wilkinson does not explicitly identify as relevant, and for reasons obvious, is the only speech that actually is relevant for purposes of the case or controversy before us. That ‘speech’ is Internet access, on state computers and on state time, to Web sites that offer displays of ‘bestiality, lewd exhibition of nudity, � sexual excitement, sexual conduct or sadomasochistic abuse, � coprophilia, urophilia, or fetishism,’” Luttig wrote. “It is unsurprising that Judge Wilkinson would avoid the question whether the plaintiffs here are speaking in their roles as public employees or in their roles as private citizens, because in the answer to that question lies the refutation of the constitutional right that Judge Wilkinson concludes exists. For, when university professors conduct university research on university time, on university computers, and in conduct of their university duties, it is indisputable that they are performing in their role as public employees of the university, even though Judge Wilkinson is unwilling to accept as much,” Luttig wrote. “However,” Luttig concluded, “in reality, the true academic is in no need of defense. The court holds today, as has been uniformly recognized by the Supreme Court through the years, only that there is no constitutional right of free inquiry unique to professors or to any other public employee, that the First Amendment protects the rights of all public employees equally. Neither the value nor the contributions of academic inquiry to society are denigrated by such a holding.” In a second concurring opinion, Judge Hamilton stated that because the appellees’ access to, and dissemination of, sexually explicit materials is accomplished in their capacities as state employees, “the court today correctly concludes under the implicit holding of our en banc decision in Boring v. Buncombe County Board of Education that the speech in this case is employee speech, and, therefore, not entitled to First Amendment protection.” In a third concurring opinion, Chief Judge J. Harvie Wilkinson III agreed with the majority that the Virginia Act is constitutional but, “unlike the majority, I believe that this statute restricts matters of public concern, especially in the context of academic inquiry. The state, however, has a legitimate interest in preventing its employees from accessing on state-owned computers sexually explicit material unrelated to their work. Here the Commonwealth has promoted this legitimate interest through minimally intrusive means, i.e., by permitting university officials to grant waivers for all bona fide research projects. By thus preserving the structure of university self-governance, the statute withstands constitutional scrutiny.” Wilkinson added, “Although the restrictions on Internet access in this statute may appear to pose a novel question, I agree with the majority that it is amenable to traditional analysis through the framework for public employee speech established in Pickering v. Board of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983). � The fact that this statute governs use of the Internet should not change our approach to institutional self-governance. The Internet allows unparalleled access to information, thereby enhancing opportunities for freedom of expression and holding tremendous promise for virtually all types of research. But with this exponential growth of freedom comes the potential for abuse. Whereas formerly access to sexually explicit matter was somewhat limited, now a click of the mouse can invite obscene material into the middle of the working environment. �The Commonwealth has made the judgment that universities themselves are best equipped to balance the enormous promise of the Internet against the novel risks that may accompany it. Because the limited restrictions in this Act are administered within the traditional structure of university governance, I do not believe the Virginia statute contravenes the Constitution.” Judge Francis D. Murnaghan Jr. dissented, finding the act both under- and overinclusive. He wrote, “[T]he form of the plaintiffs’ speech, Internet and e-mail communications, makes the speech of special public significance. In the information age, electronic communications may be the most important forum for accessing and discussing topics of concern to the community. This court should be wary of allowing the State to regulate this important medium of communication without requiring a legitimate justification for the regulation.”

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