ACLU Files Challenge to Virginia Internet Law on Behalf of Six University Professors

May 8, 1997 12:00 am

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ALEXANDRIA — The American Civil Liberties Union today filed a challenge to a Virginia law that bans state employees from viewing “sexually explicit” communications online, saying that the law unconstitutionally curbs the free speech rights of state university professors and others.

The lawsuit was filed in federal district court this morning by the national ACLU and the ACLU of Virginia on behalf of six professors from Virginia Commonwealth University, George Mason University, Blue Ridge Community College, Old Dominion University and the College of William and Mary.

According to the ACLU’s complaint, under the law, a professor of English could be sanctioned for accessing a website with poetry by Algernon Charles Swinburne, who was denounced during the Victorian Age for his sexually explicit writings about sado-masochism, necrophilia, flagellation, and male and female homosexuality. (example sites)

“Sexuality is an important subject in human history, and sexually explicit ideas and images are common in online conversations about literature, art, psychology, history, feminism, law, and popular culture,” said Marjorie Heins, an ACLU national staff attorney and counsel for the plaintiffs. “This pernicious law censors online speech that can be found in libraries and college texts, that is constitutionally protected and not obscene,” she added.

The law makes it illegal to use the state’s “information infrastructure” to access or download materials with “sexually explicit content” as defined by existing Virginia law. In addition, the law prohibits “storage” of sexually oriented communications on state-owned computers, and bars employees from using e-mail, chat rooms and list servs, if the exchange involves sexually explicit words or images. Penalties for violations are not specified and would presumably be left to the discretion of state agencies.

The law requires professors and other state employees wishing to download, post, transmit or store sexually explicit material on their computers to first ask for approval in writing from agency heads, such as a university official. Requests for such approval are then made available to the public.

According to the ACLU’s complaint, Paul Smith, a professor of English and Cultural Studies at George Mason University, has already been compelled by the school to remove from his website sexually explicit images he had posted as examples of censorship.

The other professors named in the suit said that the law makes it impossible for them to use the Internet productively for research in their academic disciplines. Being required to seek official permission before doing research or speaking with colleagues online violates their academic freedom and establishes an unconstitutional “prior restraint” on protected speech, the ACLU complaint asserts.

“Ironically, under this law, teachers will have to get written permission to receive or send words and images that their students will have free and unimpeded access to, and that they themselves could access without restraint in any state university library,” said Kent Willis, executive director of the ACLU of Virginia. “The state of Virginia has no legitimate purpose in imposing this kind of broad infringement of free speech and academic freedom.”

Willis noted that the law has forced some professors to avoid assigning research projects involving the Internet, for fear that they may be violating the law; others have risked sanctions by continuing to access online sites and participate in online academic discussions, such as a scholarly e-mail list on the interdisciplinary fields of gender, sexuality and lesbian studies.

The case, Urofsky et al. v. Allen, is filed in U.S. District Court for the Eastern District of Virginia, Alexandria Division, and names Governor George Allen as a defendant. The lawsuit specifically challenges Sections 2.1-804-806 of the Virginia Code.

The six professors named in the lawsuit are Melvin I. Urofsky, Professor of History, Virginia Commonwealth University; Paul Smith, Professor of English and Cultural Studies, George Mason University; Brian J. Delaney, Associate Professor of English, Blue Ridge Community College; Dana Heller, Associate Professor of Contemporary American Literature, Old Dominion University; Bernard H. Levin, Professor of Psychology, Blue Ridge Community College; and Terry L. Meyers, Professor and Chair of the Dept. Of English, College of William & Mary.

The Virginia law was passed last July along with a spate of other state Internet statutes, following the enactment of the federal Communications Decency Act (CDA), which criminalizes online “indecency.” The ACLU won an injunction against the CDA in a Philadelphia federal district court in June 1996. That case, Reno v. ACLU, is now under Supreme Court review; a decision is expected by late June 1997. The ACLU has so far challenged two other state Internet censorship laws, in Georgia and New York; decisions are pending in both of those cases.

Lawyers for the ACLU are Mary Bauer, legal director of ACLU of Virginia and Marjorie Heins, Louis M. Bograd and Ann Beeson of the national ACLU. Michael H. Hammer, Francis M. Buono and Todd G. Hartman from the Washington, D.C. office of Willkie Farr & Gallagher are pro-bono attorneys. Rodney A. Smolla of the College of William & Mary Marshall-Wythe School of Law, and Virginia attorney David Baugh, are co-counsel.

Literary Web Sites that may be forbidden to state employees in Virginia:

English Poetry Full Text Database: An excellent database of English poetry is available exclusively to students and faculty at Virginia’s state supported colleges and universities. Others can see the only the top level menus.

Algernon Charles Swinburne (1837-1909), ANACTORIA

Alfred, Lord Tennyson, LUCRETIUS

Dante Gabriel Rossetti, Nuptial Sleep (Sonnet V of “The House of Life”)

D. H. Lawrence, MATING

D. H. Lawrence, TEASE

D. H. Lawrence, Sons and Lovers

Walt Whitman, Leaves of Grass

Allen Ginsburg, Howl

Allen Ginsburg, Footnote to Howl

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