Urofsky v. Allen Brief of the Appellees

In the 


No. 98-1481









Virginia Code ¤2.1-804-806 (the Act) bans state employees' use of state computers to access any "sexually explicit content," broadly defined to include descriptions or depictions of "sexual excitement" or "sexual conduct" of virtually any sort. There is no requirement that the banned communications lack serious value, be "patently offensive," or appeal to prurient inte-rests. The Act affects approximately 101,000 state employees, including thousands of professors, librarians, and other researchers at 39 institutions of higher education. It also affects museum curators, physicians and their staffs at the Commonwealth's two medical colleges and their asso-ciated hospitals and clinics, and social service and health workers researching, investigating, and communicating with colleagues and the public about child abuse, sexually transmitted diseases, sexual dysfunction, and sexual crimes.

The Commonwealth's brief attempts to salvage this sweeping law by asserting, in defiance of the plain text, that it only applies to communications deemed "lascivious." It then tries to avoid the Act's impact on academic freedom by suggesting, wrongly, that academic freedom is not an issue in the case. Next, the Commonwealth makes the broad, legally insupportable argu-ment that none of its 101,000 employees, including the thousands engaged in academic pursuits, enjoys any First Amendment protection for work-related speech, because all are officially speak-ing for the government at all times. It mischaracterizes the case as involving a claim of right by state employees to "ignore ... supervision," whereas in fact employees are adequately supervised by existing content-neutral workplace rules, properly tailored to the functions and needs of each agency. Finally, the Commonwealth engages in loaded political rhetoric about "the will of the people," evidently in hopes of persuading the Court not to subject the Act to any serious First Amendment scrutiny.

As the plaintiffs will demonstrate, these attempts to defend a blatantly overbroad and indeed, irrational law, must fail. When properly analyzed under the First Amendment, as the district court found, the Act imposes an unjustifiable content-based prior restraint on a huge range of valuable, job-related communications on subjects of public importance.


The district court had subject matter jurisdiction pursuant to 28 U.S.C. ¤¤1331, 1343(3), and 2201. This Court has appellate jurisdiction pursuant to 28 U.S.C. ¤1291.


(1) Whether the district court correctly ruled that the Act unconstitutionally singles out a broad category of valuable expression, where it is not justified by any demonstrated govern-mental need and where content-neutral rules are in place to control unauthorized computer use.

(2) Whether state-employed academics and other professionals engaged in intellectual inquiry possess First Amendment rights to write, publish, engage in research, and exchange information with colleagues and the public.

(3) Whether, assuming the Act had legitimate applications, it is substantially overbroad.

(4) Whether the Act's ban on "sexually explicit content" is unconstitutionally vague.

(5) Whether, rather than saving the Act from unconstitutionality, its prior permission requirement is unconstitutional because it lacks standards, procedures, or other safeguards against arbitrary, discriminatory, or ideologically motivated decisions.


Plaintiffs, six state-employed professors, filed this action on May 8, 1997, asserting that the Act, both facially and as applied, violates First Amendment principles of academic freedom, infringes the First and Fourteenth Amendment rights of state employees, and is unconstitu-tionally overbroad and vague. After discovery, the parties filed cross-motions for summary judgment. In support of their motion, plaintiffs filed a 165-paragraph Statement of Undisputed Facts (SUF), JA 225-94, supported by 39 separate exhibits and ten declarations. Attached to most of the declarations were additional exhibits demonstrating the plaintiffs' scholarly uses of sexually explicit information in the arts, literature, psychology, and other fields, as well as the range of sexually explicit communications used by other state employees and in many cases supplied on the Commonwealth's own databases.(1) On February 26, 1998, the federal district court granted the plaintiffs' summary judgment motion.

The district court reviewed the Act's effect on a broad range of constitutionally protected speech by plaintiffs and numerous other state employees. JA 421-2. As the court summarized:

    At stake is the ability of more than 101,000 public employees at all levels of state government to read, research, and discuss sexually explicit topics within their area of expertise. This includes inquiry and debate by academics in the fields of art, literature, medicine, psychology, anthropology, and law, and the exchange of sexually explicit information and opinions by employees in Virginia's Department of Corrections, Social Services, Juvenile Justice, and Mental Health, and the Office of the ...Attorney General.

JA 427. "Ironically," the court found, "a significant portion of the sexually explicit material restricted by the Act is available in the Commonwealth's own Virtual Library of Virginia ('VIVA')," which "was created to assist state professors and researchers in the performance of their scholarly duties." JA 436.

The court rejected the government's argument that no state employees, including scholars, enjoy First Amendment protection for work-related communication. JA 423. Instead, the court applied the rigorous constitutional balancing test prescribed in U.S. v. National Treasury Emplo-yees Union, 513 U.S. 454 (1995) (NTEU), for cases such as this, where "a broad statute ... pro-spectively addresses the speech of over 100,000 state employees." JA 423. It noted the impor-tance of the public's right "to receive and benefit from the speech of public employees within their areas of expertise," and the even higher burden of justification borne by the government where a law discriminates against expression based on its content. JA 421-2. The court con-cluded that the government had not met its burden of justifying the Act, particularly given that existing content-neutral policies adequately address its stated concerns. JA 442-4. It found that the Act is not reasonably directed to advancing the Commonwealth's asserted interests in "opera-ional efficiency in the workplace" or prevention of "a sexually hostile work environment," JA 430, because it is both underinclusive (it exempts state police, ignores nonsexual sources of workplace inefficiency, and targets only electronic communications), and overinclusive (it interferes with countless legitimate work-related communications). JA 433-7.

Finally, the court rejected the government's claim that the Act's provision for seeking an exemption from the ban is "only a minimal burden on present and future employees." To the contrary, the court found, the "absence of clear criteria" in the permission process, the placement of "unbridled discretion" in state administrators, the "problematic" implementation of the licen-sing scheme, and the mandate that all approvals be publicly disclosed, are all likely "to invite arbitrary enforcement and to chill the free exercise of speech rights." JA 437-42.


Scope of the Act

The Act prohibits any employee (excepting state police) from using state computers to "access, download, print, or store" any "sexually explicit content." It defines "sexually explicit content" as any description or depiction of "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." Va. Code ¤2.1-804.(2) The Act thus bans online access to any description of a sexual act or a psychological abnormality such as fetishism. Employees may seek prior permission from their agency head for an exemption from the ban, but such permission must be in writing, and made available for public inspection.

The Act applies only to state employees. Members of the public may use state library computers without content restrictions, JA 267-70, JA 349, as may clients of the Department of Mental Health. JA 272.(3) Moreover, as the district court found, "students attending state colleges and universities may freely access the very same materials for which their professors must gain written permission because the Act does not apply to students." JA 437; see also JA 233, 269-72. The Commonwealth has content-neutral policies to control unauthorized use of state computers. The Department of Personnel & Training's statewide rules prohibit "unauthorized misuse of state property," including "inappropriate or unauthorized use of state information technology resources." JA 54-5. Specific agencies have computer use policies tailored to their needs, e.g., the court system ("official use only"); House of Delegates ("job functions"); Mental Health (research, professional development, and education); and Social Services ("direct job-related purposes, ... professional contacts and ... career development"). JA 282-3. So do colleges and universities: the community colleges permit computer use "only for authorized purposes"; George Mason University allows uses "to support education, research, and work of the faculty, staff, and students," and personal use on a low-priority basis; the University of Virginia bans personal use "unrelated to the University's mission," but defines that mission broadly to include "[p]ersonal activities related to teaching, scholarship and research or public service." JA 283-4. Isolated incidents of unauthorized computer use, including personal accessing of pornography, have been dealt with under these existing standards and procedures. JA 284, 202-11, 215-16.

Impact of the Act on the Plaintiffs

The six plaintiffs use their office computers extensively to fulfill their research and teaching responsibilities, which include professional uses of sexually explicit information. Melvin Urofsky is Professor of History at Virginia Commonwealth University and a nationally recog-nized expert on mass communications and constitutional law. JA 238. Because of the Act, he has not given students online research assignments dealing with federal indecency law. JA 239-40. Terry L. Meyers is an expert on Victorian poets of the "fleshly school," particularly Swin-burne, whose sexually explicit themes include sadomasochism, flagellation, and homosexuality. He makes extensive use of the Virtual Library of Virginia (VIVA) to access sexually explicit poetry by Swinburne, the Earl of Rochester, and many others. JA 241-5. Paul Smith is an internationally known expert on cultural studies, semiotics, and literary theory; among his research projects are studies of how pornography shapes gender roles and sexual identity in our culture. His World Wide Web site at George Mason University (GMU) was censored as a result of the Act. JA 245-52.(4) Dana Heller, a professor at Old Dominion University, teaches American literature, gender studies, and lesbian/gay studies; many texts in these fields have sexually expli-cit content. She uses the Internet extensively for research and communication with colleagues. JA 252-7. Bernard Levin and Brian Delaney are professors of psychology and literature, respec-tively, at Blue Ridge Community College. They use the Internet for teaching and research, and their subjects frequently include human sexual experience, including, as Professor Levin ex-plained, "aspects of adult or adolescent sexuality, Freud's libido concept; Freud's oral, anal, and genital stages of development; or Freud's concept of penis envy." JA 258, 257-66.(5)

Reliance on Computers by Other Scholars and Professionals

Use of computers has become essential throughout higher education and other agencies of state government. JA 232-7. The advent of the Internet has had an enormous beneficial impact on the ability of state libraries to provide information; indeed, much information is now available only in computerized form. JA 236, 268. Employees of the Commonwealth's 39 institutions of higher learning are consistently among the heaviest computer users, and the Commonwealth's libraries rely extensively on online resources. JA 235-37. As Dr. Robert Cantrell, Director of the University of Virginia Health Sciences Center, testified, "everything is going online." JA 235. Computers and Internet access have become critical tools of teaching, research, writing, and communicating with colleagues and the public. JA 235-7.

Many professors and other academic employees communicate or access sexually explicit communications in the course of their work. State university libraries contain a vast range of books, journals, and other materials with sexually explicit content in both computerized and "hard copy" form. Examples range from Joyce's Ulysses or Chaucer's Canterbury Tales to erotic images on Greek vases to scientific, political, and sociological literature on AIDS, sexual dysfunction, sexual arousal, pornography, and prison rape. JA 266-75. The former Director of Libraries at GMU explained that state-employed librarians frequently assist students, faculty, and the public in locating sexually explicit research material. Hurt Dec., ¦21 (JA 267-71).

As the district court found, a wide variety of nonacademic professional employees also communicate or access sexually explicit information in the course of their work. JA 421-2, 427. These include employees of the Virginia Museum of Fine Arts and the Science Museum of Virginia, Health Department employees studying human sexuality, safer sex, or STDs, Correc-tions and Juvenile Justice Department employees investigating sexual offenses, and Social Ser-vices employees reviewing or exchanging information about child sexual abuse. JA 276-8.(6)

Fair Notice and Prior Permission

Librarians and other professional employees cannot know what communications on sexually explicit subjects will run afoul of the Act. JA 285. Professors Delaney, Urofsky, Smith, and Meyers testified that they have no reliable means of determining when an electronic message, image, item of information, or passage in a literary work, qualifies as "sexually explicit." JA 285. University of Virginia officials, unclear as to the exact coverage of the Act, granted depart-ment-wide approvals; as one administrator explained, she "wouldn't do anything but approve exceptions if they were on a case-by-case basis." JA 285, 289.

None of the plaintiffs has sought prior approval to access sexually explicit speech. They object that this licensing requirement undermines their intellectual autonomy, and is equivalent to requiring permission before viewing books in the library. JA 240-1, 244, 251-2, 257, 262, 266. Professors Meyers, Smith, and Heller fear that the requirement invites arbitrary, discrimi-natory, and politically motivated decisionmaking, particularly where sexually explicit literature is involved. JA 244, 251-2, 257. The plaintiffs are concerned that not only the definition of what is banned, but the standards for approval, are unduly vague. JA 240-1, 244-5, 263. John O'Connor, then Vice Provost for Information Technology at GMU, told Professor Smith that he did not know what the standards or procedures would be. JA 252.

Only three out of the thousands of professors, librarians, and other academic personnel at the Commonwealth's 39 colleges and universities have sought permission to access sexually explicit content: one English professor at Radford University, JA 217-22, 291, and two professors at the College of William & Mary, JA 291-2 JA 286-93, 439-42.(7) Permission was also sought for one research project at the Virginia Museum of Fine Arts, and for employees of the Office of the Attorney General and the Departments of Education and Health. JA 293. Only one agency, Radford University, promulgated written procedures for seeking approval, and none promul-gated substantive standards. JA 286. Neither the Department of Personnel & Training nor any other agency has developed uniform statewide procedures, guidelines, time limits, or review mechanisms to govern the approval process. JA 294.


I. Virginia Code ¤2.1-804-806 expressly applies, inter alia, to all depictions or descriptions of sexual excitement or sexual conduct. The Commonwealth's attempt to minimize this broad ban by suggesting that "sexually explicit" "connotes" lasciviousness is thus without statutory basis. The Act contains no "lasciviousness" limitation except for "exhibition[s] of nudity." Moreover, even if the Court could rewrite the Act, inserting the term "lascivious" would not save it. Nor is there any basis for the Commonwealth's claim that it has implemented a limiting construction. The record shows precisely the opposite.

II. The district court, following the analysis set out in U.S. v. NTEU, correctly ruled that the Commonwealth had not met its heavy burden of justifying the Act's "wholesale deterrent to a broad category of expression." Where a law imposes a broad prior restraint on public employ-ees' speech, the applicable NTEU test is essentially equivalent to the task a court must perform when faced with a facial challenge to a law that by its very presence risks the suppression of valuable expression. Indeed, although the NTEU standard is more than sufficient to doom the Act, in this case full First Amendment strict scrutiny should apply because of the Act's content-discriminatory character and its pernicious impact on academic freedom.

III. The Act burdens the First Amendment rights of scholars, librarians, other professionals, and the public. A law broadly banning all sexually explicit online research and discussion in art, literature, psychology, science, and law violates fundamental principles of academic freedom, and cannot be salvaged by a licensing provision.

With respect to nonacademic employees, the Act is far too broad to be a legitimate exercise in personnel supervision. The sweeping imposition of a prior restraint on 101,000 employees triggers heightened First Amendment scrutiny under NTEU beyond the balancing test used where a single worker is disciplined for speech after-the-fact. The Commonwealth's assertion that all of its employees speak for the government when they engage in work-related communi-cations, and therefore have no First Amendment rights, is flatly wrong. Professionals speaking on work-related matters commonly express their own views rather than those of the agency.

IV. The Commonwealth did not meet its heavy burden of justification under NTEU, and a fortiori did not justify the Act under the strict scrutiny required where academic freedom is threatened and where a law targets expression based on content. The government demon-strated neither that the harms it asserts are "real, not merely conjectural," nor that the Act is a "reasonable response" that will alleviate the harms "in a direct and material way." JA 429; NTEU, at 474-5. Workplace disruption is not caused by employees' legitimate, work-related uses of sexually explicit communications. It is caused by unauthorized computer uses, whether to access sexually or nonsexually oriented Internet attractions. Content-neutral regulation of computer use has been, and remains, a much better-tailored way to advance workplace effi-ciency. Likewise, regulations exist to prevent sexually hostile work environments. Singling out computer content -- much of which has legitimate uses, and little of which is seen by other employees -- is not a direct, material, or even rational, way to prevent sexual harassment.

V. The Act is substantially overbroad. It covers even larger amounts of "nonpornographic materials with serious educational or other value" than the indecency law found facially invalid in Reno v. ACLU, 117 S.Ct. 2329, 2347 (1997). The extensive factual record illustrates the substantial number of situations in which the Act restricts the First Amendment rights of scholars, other professionals, and the public.

The Act is also unconstitutionally vague. While it is clear that all online depictions and descriptions of sexual conduct are prohibited (whether or not lascivious), it is unclear how detailed a passage must be to qualify as a "depiction" or "description." In countless situations, employees will have no way to know whether a literary passage, recounting of a sexual crime, or psychological abstract on sexuality is detailed enough to qualify as a "description" of sexual conduct. The resulting chill on expression goes to the core of the First Amendment.

VI. Far from saving the Act, the licensing requirement raises a host of additional First and Fourteenth Amendment problems. It is discretionary and standardless; it invites arbitrary, inconsistent decisionmaking and political meddling; and its public records provision will intimidate employees from making requests, and their supervisors from granting them. Contrary to the Commonwealth's argument that this licensing scheme is an innocuous exercise of mana-gerial supervision, no agency sought it: the legislature instead imposed it on agencies that were already effectively supervising their employees.


The standard of appellate review for a district court's grant of summary judgment is de novo. Clark v. Alexander, 85 F.3d 146, 149 (4th Cir. 1996). In this case, the factual record is undisputed, and the district court's findings based on that record are not challenged.(8) Thus, the only questions before the Court are questions of law.



Faced with the task of defending an overbroad, content-discriminatory law, the Common-wealth struggles to suggest a limiting construction. In defiance of the statutory language, it says that "sexually explicit " only "connotes a limited span of materials that are lascivious," Br. at 34. It then falsely asserts that it has "adopted in practice" such a "limited construction," Br. at 33.

There is no support for either of the Commonwealth's claims. Not only has it not adopted a limiting construction, the University of Virginia, consistently one of the state's heaviest compu-ter users, construed the Act in accord with its language to apply to nonlascivious medical infor-mation; it therefore issued a blanket exemption from the law to some 8,300 employees of its Health Sciences Center, JA 289-90, 348, 440-1. The Virginia Museum of Fine Arts read the Act to require that employees seek permission for a research project on "The Art of the Ancient Greek and Roman Theater," JA 293, 385-6. Of the three professorial licenses granted, one was for a scholarly journal, Eighteenth Century Life; another was for fictional works on censorship, JA 290-1; 219-21, 387-8. There is no document in the record indicating that these agencies were in error, or that any agency with statewide jurisdiction imposed a narrower construction.

Nor is the Act susceptible to a "lasciviousness" limitation. Of the eight terms used to denote "sexually explicit content," only one, "exhibition of nudity," has a limiting adjective ("lewd"). All the others, in stark contrast, do not. Under elementary rules of statutory construction, this contrast cannot be ignored. See Norman J. Singer, 2A Sutherland Statutory Construction ¤¤47.23-.25 (1992 & 1998 Supp.); Childress v. City of Richmond, 134 F.3d 1205, 1209-10 (4th Cir. 1998) (en banc) (Luttig, J., concurring), cert. pending, 66 USLW 3723 (May 5, 1998).(9) If the legislature had wanted "sexual excitement," "sexual conduct," "fetishism," or other terms to be confined to "lascivious" descriptions, it would have said so, as it did with "exhibition[s] of nudity."(10) Nor can the court insert a "lasciviousness" limitation without judicially rewriting the law -- a result foreclosed by the Supreme Court's rule that a court may not adopt a narrowing construction unless the law at issue is "readily susceptible" to one. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988).(11)

Finally, even if the Act's language and the rules of statutory construction were to be ignored and a "lasciviousness" limitation inserted, the Act would still be unconstitutionally vague and overbroad. Countless works of art, from the sensuous nudes of Titian, Goya, or Renoir to explicit depictions by Schiele or Courbet, can easily be seen as lascivious, and in many cases were meant to be. The same is true of literature, from Aristophanes' Lysistrata to works by Henry Miller, John Updike, Toni Morrison, or Erica Jong. Many would undoubtedly consider passages in works of politics or social science to be lascivious -- for example, descriptions of prison rape (JA 275; ex. 11 to Wheeler Decl.), psychological abstracts on vibrator use (JA 274), or the Final Report of the 1986 Attorney General's Commission on Pornography, which contains detailed plot summaries of pornographic films. Scholars simply cannot be barred from studying all that might be "lascivious" in human culture, or required to obtain a license before doing so.


    A. Whether Under the Rigorous NTEU Standard or Full First Amendment Strict Scrutiny, the Court Must Consider the Act's Wholesale Deterrent to Speech by a Massive Number of Potential Speakers

The district court struck down the Act based on the analysis prescribed in NTEU for laws that stifle "a broad category of expression by a massive number of potential speakers." JA 423; 513 U.S. at 467. It considered the content-discriminatory character of the Act and the impermis-sibly discretionary nature of the prior approval requirement as additional factors "'on the em-ployees' side of the scales.'" JA 425-7, 442 (quoting Sanjour v. EPA, 56 F.3d 85, 97 (D.C. Cir. 1995) (en banc)). The court's NTEU analysis essentially merged with th

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