In First Loss for Online Free Speech, Appeals Court Gags Virginia State Employees

FOR IMMEDIATE RELEASERICHMOND, VA — Saying that professional research and debate in “art, literature, history and the law” are not protected by the First Amendment, a federal appeals court today upheld a Virginia law barring state employees from “sexually explicit communication” on the Internet.

The American Civil Liberties Union and the ACLU of Virginia, which challenged the 1998 law on behalf of six university professors, said the ruling is the first by a federal court to uphold restrictions on Internet speech.

In a terse 10-page decision, a three-judge panel of the Fourth U.S. Circuit Court of Appeals recognized that the First Amendment applies when public employees are speaking on “matters of public concern.” But in an inexplicable contortion of logic, the appeals court held that no job-related speech involves matters of public concern. Therefore, the court said, job-related speech is not protected by the First Amendment.

“By the court’s logic, a state university English professor has a free speech right to make water-cooler comments about the more salacious elements of the Clinton/Lewinsky scandal but a political science professor could be fired for discussing the same issue in her classroom,” said Ann Beeson, staff attorney with the national ACLU.

Although some state officials will say today’s decision is about “preventing state employees from downloading pornography,” Paul Smith of George Mason University, one of the professors challenging the law, said today’s ruling was a frightening attack on academic freedom. Specifically, Smith said that he feared his courses on popular culture, dealing with issues of sexuality and gender, could violate the court’s ruling.

Today’s decision took what had been a challenge to online speech restrictions and broadened it to an effective gag on professors, social workers, librarians and other state employees in any medium. In doing so, the Fourth Circuit expanded — to include all state employees — the rationale of its 1998 decision upholding the firing of a drama teacher over her selection of a high school play.

“These Fourth Circuit rulings are a perverse interpretation of Supreme Court cases regarding free speech rights in the workplace,” Beeson said. “It should go without saying that what state employees — whether they are professors, social workers or mental health professionals — say on the job is a matter of public concern entitled to the full protection of the First Amendment.”

The ACLU said it is considering whether to seek review in Urofsky v. Gilmore by the full Fourth Circuit Court of Appeals or to appeal to the U.S. Supreme Court.

Kent Willis, Executive Director of the ACLU of Virginia, noted that the court’s ruling came two days after the Virginia House of Delegates voted 99-0 to pass a bill repealing the law. “The Virginia General Assembly reacted sensibly to our lawsuit by directing a new bipartisan science and technology commission to come up with a reasonable alternative to the censorship scheme,” he said.

“We hope that the Senate side will follow the lead of the House and the sound advice of the science commission and not be influenced by this illogical circuit court ruling,” Willis said.

The majority opinion was authored by Judge William W. Wilkins and joined by Judge J. Michael Luttig. Judge Clyde H. Hamilton, who had dissented in the case of the drama teacher, said that “left to my own devices, I would hold that the Plaintiff’s speech in this case is entitled to some measure of First Amendment protection.” However, Judge Hamilton said he was bound by the precedent of the earlier opinion and therefore concurred in today’s ruling.

Urofsky et al. v. Gilmore, originally filed against former Governor George Allen , was filed in U.S. District Court for the Eastern District of Virginia, Alexandria Division. 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, Marjorie Heins and national ACLU staff attorneys Louis M. Bograd and Ann Beeson. Michael H. Hammer, Francis M. Buono and Todd G. Hartman from the Washington, D.C. office of Willkie Farr & Gallagher are pro-bono attorneys.

Click here for Complete information on the Virginia lawsuit