Federal appeals court: Virginia law limiting workers' Net use is constitutional

The Associated Press

06.26.00

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RICHMOND, Va. — A law that prohibits state employees from looking at sexually explicit material on government-owned computers at work does not violate the First Amendment, a federal appeals court ruled last week.

In an 8-4 decision in Urofsky v. Allen, the 4th U.S. Circuit Court of Appeals on June 23 overturned U.S. District Judge Leonie M. Brinkema's ruling that the law is an unconstitutional infringement on state employees' freedom of expression. A three-judge panel of the court overturned Brinkema's ruling last year, but the full court voted to hear the case.

Six professors at public colleges had challenged the law, arguing that it infringed on their academic freedom and would impede their ability to conduct legitimate research on topics including art, literature and human sexuality.

However, the appeals court agreed with lawyers for the state who argued that the law guards against a sexually hostile work environment and discourages public employees from wasting time.

Kent Willis, executive director of the American Civil Liberties Union in Virginia, said he was disappointed but that no decision had been made on whether to appeal to the U.S. Supreme Court. The ACLU represented the professors in the case.

"This turns the clock back to pre-Revolutionary times on academic freedom," Willis said. "This law doesn't just nip at the edges of academic freedom. In some cases, it takes a big chunk out of it."

State Attorney General Mark Earley said he was pleased with the ruling.

"Virginia taxpayers should not be forced to pay for the use of state computers — on state time — by state employees for downloading obscenity off the Internet," Earley said.

In the majority opinion, Judge William W. Wilkins Jr. wrote that the law is constitutional because it regulates state employees' activities only in their official duties, not their speech as private citizens addressing matters of public concern. He also wrote that the concept of academic freedom generally applies to institutions, not individuals.

Chief Judge J. Harvie Wilkinson wrote a separate opinion concurring in the majority judgment, but for a different reason. He said the law passes constitutional muster only because it exempts professors who get permission from their bosses.

In a dissenting opinion, Judge Francis D. Murnaghan wrote that the prior approval provision "has no check on the discretionary authority of state agencies" and could lead to arbitrary enforcement.

He also questioned the logic of some of the state's arguments. For example, he said state employees could waste time in a variety of ways not covered by the law, including reading newspapers and looking at non-pornographic material on the Internet.

"The commonwealth has not explained, and cannot possibly explain, why employees who access sexually explicit material are any less 'efficient' at their work than employees who check espn.com every twenty minutes during the NCAA tournament," he wrote.

The law also targets Internet porn while ignoring printed material that can create a sexually hostile work environment, Murnaghan wrote.

The professors who challenged the law are Melvin Urofsky of Virginia Commonwealth University, Paul Smith of George Mason University, Dana Heller of Old Dominion University, Terry Meyers of the College of William & Mary, and Brian Delaney and Bernard Levin, both of Blue Ridge Community College.