D.  Fourth Circuit Upholds State Regulation of Sexually Explicit  Material

    Ever since the Virginia General Assembly forbade government employees to use state-owned and state-leased computers to access sexually explicit material, the validity of that ban has been before the federal courts.  Passed in early 1996, the law was soon challenged by six professors at Virginia public colleges and universities, each of whom documented a need to access and download such material for wholly legitimate scholarly reasons. Though the law authorized “agency heads” to permit access to such material for a “bona fide research project,” the very process of seeking such a dispensation posed added risks for a conscientious academic.

    The case came before Judge Leonie Brinkema in the federal district court.  About the same time she struck down Loudoun County’s library filtering scheme, she also ruled against the sexually explicit computer-access law on a variety of constitutional grounds.  She found the law vague and imprecise in vital respects. Its coverage seemed to her both under-inclusive (in that it failed to regulate other uses of state computers that posed comparable risks) and over-inclusive (in that it inexplicably exempted all law enforcement personnel).  Mainstream Loudoun v. Board of Trustees, 24 F. Supp. 2d 552 (E.D. Va. 1998).

Fourth Circuit Panel, En Banc Reviews

    This ruling quickly reached the U.S. Court of Appeals for the Fourth Circuit, where it was reversed by a three-judge panel.  The appellate court rejected every one of Judge Brinkema’s constitutional premises, finding the law to be a reasonable restriction on the speech and inquiry of state employees.  For the appeals court, the case was governed by its recent ruling that a public high school teacher could not insist on performing a student play that the principal had deemed inappropriate.  While the analogy between the two situations was admittedly something of a stretch, the panel was comfortable in assimilating them for free speech purposes.

    The full Fourth Circuit then agreed to rehear the case.  The en banc decision in late June 2000 said much more about academic freedom, and less about speech on the Internet, than had the panel’s ruling.  The majority insisted that the  professors’ speech interests did not relate to matters of public concern -- a nexus that was crucial to a government employee’s First Amendment rights -- but rather were of a personal nature and thus fell beyond constitutional protection.  The fact that computers were involved, or that the Internet was the source of the forbidden material, played a minimal role in the majority opinion. 

    Several concurring judges were deeply troubled about the denigration of academic freedom and of public employees’ speech rights, though in the end they agreed that Virginia could if it wished restrict the use of its computers in this fashion.  One judge dissented, believing that Judge Brinkema had it right in the first place -- that the commonwealth’s asserted interests could be served in less restrictive ways, and that the means it had chosen were too broad in some ways and too narrow in others in an attempt to regulate adult speech that was not obscene or otherwise subject to prohibition.  The U.S. Supreme Court declined to hear the case.  Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 121 S. Ct. 759 (2001).