In a blow to civil liberties advocates, a three-judge panel within the Fourth Circuit Court of Appeals yesterday upheld a July 1996 law that prohibits any state employee from using Virginia-owned computer equipment to access or store sexually explicit content, unless a person gets written permission from a supervisor to obtain the prohibited material.
The American Civil Liberties Union filed the case, Melvin Urofsky et. al. vs. Gov. James Gilmore, to overturn the law on behalf of six college professors who teach about topics such as AIDS, human sexuality, popular culture, or poetry. The professors argue that the law violates their right to speak freely, and the ACLU says the prior permission requirement also violates privacy and restricts academic freedom because the requests are available to the public.
Although U.S. District judge Leonie Brinkema struck down the law as unconstitutional last February, and the state House of Delegates voted 99-0 to repeal the act this year, the appeals court now has affirmed the law.
"The state, as an employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry as a whole," the appeals court stated in its 10-page decision. "If a public employee's speech does not touch upon a matter of public concern, the commonwealth, as employer, may regulate it without infringing any First Amendment protection."
Astounded by the court's rationale, the ACLU said it now is considering whether it will seek a review by the full appeals court or appeal the case to the Supreme Court.
"It's really quite perverse," said Ann Beeson, staff attorney with the national ACLU. "It would mean that tomorrow the state of Virginia could pass a law that said, 'We don't believe the Holocaust ever occurred and we forbid teachers in the state from talking about it in the classroom.' And that would be constitutional under this ruling."
Added ACLU spokeswoman Emily Whitfield, "Someone who is acting as professor, social worker, librarian, or mental health professional have things to say that are of course matters of 'public concern.'"
Judge William Wilkins and Judge Michael Luttig authored the majority opinion in the case, which they based in large part on a 4th Circuit Court decision made last February in Margaret Boring vs. Buncombe County Board of Education.
In that case, the appeals court ruled that Boring, a high school drama teacher, didn't have a First Amendment right to select and direct the play Independence as part of her curriculum. The play was about "a dysfunctional, single-parent family--a divorced mother and three daughters, one a lesbian, another pregnant with an illegitimate child." Although Independence won 17 awards at a regional competition, a parent complained about its content and the school's principal subsequently banned its performance.
The third judge assigned to the Urofsky case, Judge Clyde Hamilton, dissented in the Boring case, but felt compelled to concur with the latest decision.
"Left to my own devices, I would hold that the plaintiffs' speech in this case is entitled to some measure of First Amendment protection, thus triggering application of [a balancing test between the interests of the employee and the state]," Hamilton wrote. "However, being bound by the court's decision in Boring, I concur in the court's opinion."
The ACLU says the court went beyond the state's argument that the law was targeted at preventing employees from accessing online pornography while on the clock.
"The court recognized that this law applied to a broad range of speech, but then said employees don't have a right to engage in that kind of speech," Beeson said.
Indeed, the court's decision states, "Although the definition of 'sexually explicit content' in the Act includes some obscene speech?the Act regulates additional speech as well. For example, the Act is sufficiently broad to govern research and debate on sexual themes in art, literature, history, and the law; speech and research by medical and mental health professionals concerning sexual disease, sexual dysfunction, and sexually related mental disorders; and the routine exchange of information among social workers on sexual assault and child abuse. Accordingly, the Act regulates more than obscene speech."
The professors named in the case now will have to choose between seeking permission to conduct online research or censoring their Net surfing activity.
Plaintiff Terry Meyers fears he could get in trouble for his study of a 19th century poet named Algernon Charles Swinburne. A professor and chair of the English department at the College of William & Mary, Meyers said Swinburne's work is too provocative to slip by Virginia's law.
"It's a very scary decision, and it strikes at the heart of First Amendment rights on the Net and academic freedom," Meyers said today. "I now have to ask permission from my dean to read online poems that I specialize in. It's an extraordinary assault on people's access to information that is necessary for their profession."
The lawsuit was triggered in November of 1997 when Paul Smith, a professor of English and cultural studies at George Mason University, was told to remove five nude pictures from a Web site that accompanied his course. Ironically, the photos were part of an assignment on censorship for his popular culture course examining the media's depictions of gender and sexuality. They fell under the states' definition of "sexually explicit."
Other professors named in the case--including Brian Delaney and Bernard Levin of Blue Ridge Community College, Dana Heller of Old Dominion University, and Urofsky of Commonwealth University--teach history, contemporary American literature, and psychology.