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The explosion of Internet content has triggered a legal debate over the freedom of online speech. On one side of the debate, there are those who believe Internet speech should be entirely free without any barriers to information. On the other end are those who think Internet speech should be closely regulated with tight controls on access to certain types of information. The U.S. Supreme Court several months ago declined to review a lower court decision that upheld a state law barring public employees from accessing sexually explicit materials on the Internet by using state computers. As a result of this action (or inaction) by the Supreme Court, the lower court decision becomes final and may feature prominently in the Internet speech debate. THE CASE The case began when six public Virginia professors filed a case entitled Urofsky v. Gilmore. The case challenged the constitutionality of a Virginia state law that restricts state employees from accessing sexually explicit material on state computers. The professors complained that the state law improperly restrained their freedom of speech, with a consequent negative impact on their work projects. A federal trial judge, sitting in Alexandria, Va., ruled in favor of the professors, holding that the state law infringed on their First Amendment freedom of speech rights. However, the 4th U.S. Circuit Court of Appeals, the court that has appellate jurisdiction over federal courts in Virginia and other nearby states, reversed the trial court’s decision. The Fourth Circuit held that the state law at issue does not infringe on the First Amendment rights of state employees. This ruling now is final, given that the Supreme Court decided not to enter into the fray. THE LAW The core part of the Virginia law considered by the courts provides:
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.

“Sexually explicit content” is defined by the law to include: “any description of or any picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, sexual excitement, sexual conduct or sadomasochistic abuse, coprophilia, urophilia, or fetishism.” As the 4th Circuit recognized, the law does not bar all access by state employees to these types of materials. A state agency head may give permission to access such materials in connection with a bona fide research project or other undertaking. Plus, as the court found, state employees are still at liberty to access these materials on their personal or other non-state computers. Thus, according to the 4th Circuit, the law “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 ULTIMATE RULING Leading up to its ruling, the 4th Circuit noted that “it is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment.” Still, according to the court, “the state as an employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as a sovereign to restrict the speech of the citizenry as a whole.” The court came to the conclusion that to resolve the case it must balance “whether the speech at issue touches upon a matter of public concern, and, if so, whether the employee’s interest in First Amendment expression outweighs the public employer’s interest in what the employer has determined to be the appropriate operation of the workplace.” This decision was then weighed in favor of the state and against the plaintiff professors by the court. “Because plaintiffs assert only an infringement on the manner in which they perform their work as state employees,” according to the court, they thus “cannot demonstrate that the speech to which they claim entitlement would be made in their capacity as citizens speaking on matters of public concern.” The 4th Circuit therefore “reject[ed] the conclusion” of the trial court that the state law “infringes upon the First Amendment rights of state employees.” The court held that because the law “regulates the speech of individuals speaking in their capacity as [state] employees, not as citizens, ” the Act does not touch upon a matter of public concern, [and] the speech may be restricted consistent with the First Amendment.” PRECEDENT? In one way or another, this case likely will become part of the matrix of the legal debate regarding Internet speech and access to information. However, the case may not set widespread precedent, as it was decided with respect to one state’s law and a given set of facts. Nevertheless, the case could have far wider application and become a legal building block used as part of a series of decisions restricting Internet speech. Stay tuned. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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