Free Speech - 4, Censorship - 0: Another Internet "Decency" Law Falls

February 27, 1998 12:00 am

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Free Speech – 4, Censorship – 0: Another Internet “Decency” Law Falls

FOR IMMEDIATE RELEASE ALEXANDRIA, VA — With federal and state lawmakers continuing to introduce cyber-censorship bills, the American Civil Liberties Union today hailed yet another victory for online free speech as a federal judge in Virginia struck down a restrictive Internet law.

The Virginia law sought to bar state employees from viewing “sexually explicit” communications online. In a 30-page decision issued late yesterday, Federal District Judge Leonie M. Brinkema agreed with the ACLU that the law unconstitutionally curbed the free speech rights of state university professors and others.

“Most troubling of all,” said Judge Brinkema in her ruling, was that the law seemed “intended to discourage discourse on sexual topics” simply because the state objects to such speech. “The Supreme Court has made it clear that the government may not use its authority over public employees for such a purpose.”

The lawsuit was filed 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.

“The court’s decision vindicates the free speech interests of not only government employees but the general public in the free flow of ideas,” said Marjorie Heins, ACLU national Staff Attorney who argued the case before Judge Brinkema.

“This had nothing to do with workplace efficiency and everything to do with censoring legitimate discourse about the subject of human sexuality in art, literature, politics, history, science, and many other fields,” she added.

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

The professors named in the suit said that the law made it impossible for them to use the Internet productively for research in their academic disciplines.

“This law put me in the curious position of having to seek permission from my dean to pursue the very research interests I had been hired for,” said ACLU plaintiff Terry L. Meyers, Professor of English at the College of William and Mary. Professor Meyers added that he would also have been blocked from checking the online research of his students, whose access to the same material was not restricted by the law.

The court noted that, “ironically, a significant portion of the sexually explicit material restricted by the Act is available in the Commonwealth’s own Virtual Library of Virginia.”

“We have now heard from 18 federal judges in four separate cases that these kinds of restrictions of online speech are unconstitutional,” said Ann Beeson, ACLU National Staff Attorney. “How many more challenges do we have to bring before lawmakers stop trying to impose unconstitutional restrictions on virtual speech?”

Just this month, she noted, the Senate has held hearings on two pieces of legislation seeking to censor “indecent” speech from the Internet. One bill, introduced by Sen. Daniel Coats, R-IN, would punish commercial online distributors of material deemed “harmful to minors” with up to six months in jail and a $50,000 fine. Another, introduced by Sen. John McCain, R-AZ, would require schools and libraries to block “indecent” Internet sites or lose federal funds for online programs.

Despite these legislative efforts, the courts have consistently invalidated such laws. With today’s victory, the Virginia court joins New York, Georgia and the nine justices of the United States Supreme Court in ruling that such attempts at online censorship violate First Amendment rights to free speech.

Currently, at least 25 states have passed or are considering Internet censorship laws, and the trend appears to be continuing, Beeson said. Since January 1 of this year, legislatures in five states have introduced strongly restrictive Internet laws.

Urofsky et al. v. Allen was filed in U.S. District Court for the Eastern District of Virginia, Alexandria Division, and names former Governor George Allen as the defendant. The lawsuit specifically challenged 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.

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.

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