Urofsky v. Allen Brief in Support of Plaintiffs' Motion for Summary Judgement

October 23, 1997
 

Civ. Action No. 97-701-A

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION


MELVIN I. UROFSKY, et al., Plaintiffs,

v.

GEORGE ALLEN, Defendant.


BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT


TABLE OF CONTENTS

INTRODUCTION

STATEMENT OF FACTS

ARGUMENT

I. THE ACT IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT IS A CONTENT AND VIEWPOINT-BASED BAN ON PROTECTED SPEECH BY VIRTUALLY ALL STATE EMPLOYEES

A. The Act Bans a Vast Range of Valuable Constitutionally Protected Expression

B. The Act is an Impermissible Content and Viewpoint-Based Attempt to Suppress Information and Ideas on the Important But Controversial Subject of Sexuality

C. The Government's Status as an Employer Does Not Save the Act From Unconstitutionality; a Government Employer May Only Impose a Content-Based Ban on Speech Relating to Matters of Public Concern if Necessary and Narrowly Tailored to the Government's Interest in Maintaining an Efficient Workplace

D. The Act is Not Necessary to and Does Not Serve Any Legitimate Interest of the Commonwealth as an Employer

E. Any Interest on the Part of the Commonwealth as an Employer is Substantially Outweighed by the First Amendment Interests Affected by the Act

II. THE PRIOR APPROVAL PROVISION DOES NOT SAVE THE ACT AND, IN FACT, EXACERBATES ITS UNCONSTITUTIONALITY

III.THE ACT IS UNCONSTITUTIONALLY OVERBROAD AND VAGUE

A. Overbreadth

B. Vagueness

II. WHEN A GOVERNMENT BROADCASTER SPONSORS AND AIRS A POLITICAL CAMPAIGN DEBATE, IT CREATES A LIMITED PUBLIC FORUM FOR SPEECH BY BALLOT-QUALIFIED CANDIDATES

III. REGARDLESS OF THE NATURE OF THE FORUM CREATED BY AETN, ITS EXCLUSION OF FORBES WAS UNCONSTITUTIONALLY VIEWPOINT-BASED AND NOT REASONABLY RELATED TO THE PURPOSE OF THE DEBATE

A. Deciding That a Ballot-Qualified Candidate Is Not Viable Or That The Public Will Be "Best Served" By Excluding Him From A Debate Is Viewpoint Discrimination

B. Excluding Forbes was Unreasonable in Light of the Forum's Purpose

CONCLUSION

NOTES

INTRODUCTION

This case presents a facial and as-applied constitutional challenge to Virginia Code §§ 2.1-804-806 (hereinafter, "the Act"), which prohibits all state employees (with the exception of the State Police) from using any state-owned or leased computer to "access, download, print or store" any "sexually explicit" information without prior written approval. "Sexually explicit" speech under the Act is a broad category that includes any words or images describing or depicting, inter alia,"sexual excitement," "sexual conduct" of virtually any sort (including "actual or explicitly simulated acts of masturbation," "sexual intercourse," or "homosexuality"), or "lewd" exhibitions of nudity.1 There is no requirement that the banned words or pictures meet the constitutional test for obscenity -- that is, that they lack "serious literary, artistic, political, or scientific value," that they be "patently offensive" according to local community standards, and that they appeal primarily to a "prurient interest." See Miller v. California, 413 U.S. 15, 24 (1973). The Act thus bans a vast range of serious ideas and information about human sexuality or the human anatomy.

The Act specifies no procedures or standards for seeking or granting prior written approval for "bona fide" research projects or other "agency approved" undertakings, time limits within which such decisions must be made, or procedures for appeal of unfavorable rulings. It does not even require that approvals be granted where a research project is in fact "bona fide." It contains no limits whatsoever on the unbridled discretion of government officials to grant or deny exception requests, and no assurances that political pressures will not be brought to bear on the approval process.

The Act affects approximately 101,000 state employees in 39 institutions of higher education and 111 other Commonwealth agencies, the great majority of whom use computers in connection with their work, whether to conduct research, assemble information in databases, communicate with colleagues, assist the public, or facilitate their teaching and writing. It impacts the work of thousands of professors, their support staffs and research assistants, of museum curators and researchers, and of librarians at the Library of Virginia, state agency libraries, and every state college and university library. It restricts the work of physicians and their staffs at the Commonwealth's two medical colleges and their associated hospitals, clinics, and libraries, and of social service and health workers researching, investigating, and communicating with colleagues and the public about child abuse, sexually transmitted diseases, and sexual crimes. It inhibits research and information exchange among law enforcement workers, including judges and attorneys, with the single exception of the State Police.

The Commonwealth's defense to the law is that it may be useful in 1) "maximizing efficiency and minimizing disruptions in the state's workplaces," 2) "deterring violations of obscenity laws," and 3) "safeguarding against the creation of the sexually hostile environment in the state's workplaces, in the state's institutions of higher education and in other state facilities that serve the public." Answer, p.2. These vague, generalized justifications, however, hardly meet the strict scrutiny test required by the First Amendment before a state may suppress speech by its employees based on content or viewpoint. See, e.g., Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1991); U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995) ("NTEU"). Even if any of the interests asserted by the Commonwealth were considered compelling for purposes of this strict scrutiny test, the Act is hardly the least restrictive means available to address them. Indeed, content-neutral regulations already in place in the Commonwealth are sufficient to advance efficiency in the workplace; and existing obscenity and sexual harassment laws are obviously more narrowly tailored and effective means to accomplish the ends the Commonwealth seeks. Even if the First Amendment standard of review were less than strict scrutiny, the Commonwealth could not meet its burden of showing any need for the Act, other than the constitutionally impermissible desire to single out for adverse treatment a broad category of constitutionally protected but controversial speech. This is content- and viewpoint-based censorship, pure and simple.

The Act's pre-approval process for a "bona fide, agency-approved research project or other agency-approved undertaking," far from rescuing the Act from unconstitutionality, exacerbates its First Amendment and Due Process flaws. First, it reverses the First Amendment presumption that speech is free -- even in the context of public employment, the government may not generally impose broad prior approval requirements on protected speech. The Act thus stands the First Amendment on its head: banning a vast range of online expression and requiring in essence a license from a government censor before words may be typed or read on a computer screen. The traditional constitutional objections to discretionary licensing schemes all apply here: there are no standards mandated to cabin unbridled agency discretion; there is no uniformity in procedures or guarantee of timely decisionmaking and appeal; and the potential for discriminatory, viewpoint-based manipulation of the approval process is manifest, particularly given the politically sensitive nature of the speech at issue and the fact that all approvals must be available for public inspection.

The Act is, moreover, unconstitutionally overbroad. That is, even assuming that there might be some narrow subcategory of sexually explicit speech to which the Commonwealth could constitutionally ban access for all of its employees, the Act reaches much too far into the realm of protected and valuable speech, with a chilling effect that is correspondingly severe.

Finally, the Act is fatally vague. Although undoubtedly some descriptions or depictions of sexual conduct would be explicit enough to satisfy the statutory standard without question, there is also a huge range of online speech about sexuality that may or may not fall within the Act. Similarly, the Act's broad ban on depictions or descriptions of nudity is cabined only by the term "lewd," a subjective adjective that may or may not include erotic Indian sculptures, Japanese woodcuts, ancient Greek pottery, or the visual art of Titian, Caravaggio, Renoir, Courbet, Edward Weston, or Robert Mapplethorpe, depending upon one's standards of morality and aesthetic point of view. The standardless approval requirement thus leaves thousands of state-employed faculty and other professionals in limbo and at risk of violating the Act at any time.

STATEMENT OF FACTS

The Plaintiffs' Statement of Undisputed Facts ("S.U.F."), is filed separately with the Motion for Summary Judgment, and will only be summarized here. (Other facts will be mentioned in the course of the Argument.)

The "information infrastructure" affected by the Act is massive and growing; it includes e-mail communications, discussion groups, chat rooms, and the vast information resources of the World Wide Web. S.U.F., ¶¶ 1-17. As one court recently noted:

[T]he Internet has experienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet; . . . Today, over 9,400,000 host computers worldwide, 60% of them located in the United States, are linked to the Internet. This count does not include users who access the Internet via modem link-up from their personal computers. As many as 40 million people worldwide currently enjoy access to the Internet's rich variety of resources, and that number is expected to grow to 200 million by the year 1999.

American Library Ass'n v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y. 1997).

Use of the Internet has become critical throughout higher education and other agencies of state government. Many documents and information resources are now only available in computerized form. Employees of the Commonwealth's 39 institutions of higher learning are consistently among the heaviest users of computers, and the Commonwealth's libraries rely extensively on online resources to supplement their own collections. S.U.F., ¶¶ 24-31.

A great deal of valuable and educational material that is sexually explicit in the arts, literature, psychology, medicine, and other fields is available on the Internet. The Commonwealth itself makes such material available through its libraries and databases. Id., ¶¶ 100-117. Numerous state employees write, collect information, conduct research, and engage in professional communications with sexually explicit content. These include attorneys, paralegals, and other law enforcement and court personnel working on cases involving sexual crimes; museum curators accessing the descriptions or images of nudity or sexuality that are so common in the visual arts; librarians assisting patrons or otherwise accessing books and magazines with sexually explicit content in the fields of literature, art, history, psychology, sociology, or medicine; workers in social service and corrections agencies documenting, studying, and communicating with colleagues about sexual incidents in schools, prisons, or other institutions; and medical professionals who compile or consult hospital psychiatric or other health records that touch on sexual or reproductive matters, or who conduct research in these fields. Id., ¶¶ 118-126.

The six plaintiffs are state-employed university professors who use their office computers extensively to fulfill their research and teaching responsibilities, and who make legitimate use of sexually explicit expression in their academic fields. Melvin Urofsky is a professor of history and nationally recognized expert on mass communications and constitutional law. He has been unable to assign students online research assignments dealing with "indecency" law because of the Act. Id., ¶¶ 32-39. Terry L. Meyers is an expert on Victorian poets of the "fleshy school," particularly Swinburne, whose sexually explicit themes include sado-masochism, flagellation, and homosexuality. He makes extensive use of the Virtual Library of Virginia database ("VIVA"), supplied and maintained by the Commonwealth, for access to sexually explicit poetry by Swinburne, the Earl of Rochester, and many others. Id., ¶¶ 40-50. Paul Smith is an internationally known expert on cultural studies, semiotics, and literary theory; among his research projects are studies of the way in which pornography shapes gender roles and sexual identity in our culture. His World Wide Web site at George Mason University was censored as a result of the Act. Id., ¶¶ 51-67. Dana Heller, a professor at Old Dominion University, teaches American literature, gender studies, and lesbian and gay studies; many of the texts in these fields have sexually explicit content. She uses the Internet extensively to do research in her field and communicate with colleagues. Id., ¶¶ 68-78. Finally, Bernard Levin and Brian Delaney are professors of psychology and literature, respectively, at Blue Ridge Community College. They both use the Internet for teaching and research, and their subjects frequently include human sexual experience. Id., ¶¶ 79-98.

These plaintiffs are representative of thousands of other state-employed faculty members for whom sexually explicit content is relevant to their academic disciplines. There are no restrictions on their access to any of these resource materials in print or video form through state-operated libraries, but the Act precludes them from accessing the same material through the speedier, more comprehensive, and more efficient technology of computers. Id., ¶¶ 99-126. Moreover, the Act prohibits state-employed professors, research assistants, and librarians from reading, viewing, or creating sexually explicit speech in the course of their work that university students and other members of the public may access without restriction. Id., ¶¶ 127-132.

The exception approval process operates in an arbitrary, discretionary, inconsistent , and unpredictable way, to the extent that it operates at all. S.U.F., ¶ 144-165. The great majority of professors, librarians, and others who may need to access sexually explicit speech online have not sought or received exceptions. Id.

ARGUMENT

"Under Rule 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Cray Communications v. Novatel Computer Systems, Inc., 33 F.3d 390, 392-3 (4th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-3 (1986)). Under this standard, summary judgment for the plaintiffs is clearly warranted.

I. THE ACT IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT IS A CONTENT AND VIEWPOINT-BASED BAN ON PROTECTED SPEECH BY VIRTUALLY ALL STATE EMPLOYEES. 2

A. The Act Bans a Vast Range of Valuable Constitutionally Protected Expression.

By broadly banning "sexually explicit" speech throughout "the entire universe of cyberspace," Reno v. A.C.L.U., 117 S.Ct. 2329, 2342 (1997), the Act plainly abridges a vast amount of constitutionally-protected speech relating to the important subject of human sexuality. The Supreme Court has "made it perfectly clear that 'sexual expression which is . . . not obscene is protected by the First Amendment.'" Id. at 2346 (quoting Sable Comm. v. F.C.C., 492 U.S. 115, 126 (1989)). As the Court has recognized, sex is "a great and mysterious motive force in human life," and "one of the vital problems of human interest and public concern." Roth v. United States, 354 U.S. 476, 487 (1957). Thus, only sexually explicit content which meets the legal definition of obscenity may be lawfully suppressed. See Miller, 413 U.S. at 24.

The broad range of speech banned by the Act goes far beyond the Supreme Court's definition of obscenity (or even indecency).3 "Sexually explicit content" not only includes artistic, literary, scientific, medical, and educational materials necessary to the professional duties of the plaintiffs and other professors and researchers; it includes information collection and professional communications by museum curators, librarians, health professionals, correctional officials, mental health and other social service workers, law enforcement and court employees, and their support staffs. See S.U.F., ¶¶ 99-126. Thus, the Act's prohibition covers even "large[r] amounts of non-pornographic material with serious educational or other value" than the "indecency" law found facially invalid in Reno, 117 S.Ct. at 2347.

The constitutional protection to which sexually explicit content is entitled fully extends to the many speech activities made possible through computer technology, including participation in on-line bulletin boards and discussion groups, creating or accessing databases, receiving e-mails, creating World Wide Web sites, and researching virtually any conceivable subject over the Internet. As the Supreme Court recently stated, "our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the on-line] medium." Reno at 2344. Indeed, the characteristics of the Internet argue for heightened sensitivity to First Amendment interests. As the Supreme Court in Reno found, "the content on the Internet is as diverse as human thought." Id. Indeed, as the Commonwealth itself has recognized, state agencies should not deny "access to Internet resources 'on the basis of viewpoint, message, or possible controversial content.'" S.U.F., ¶ 129.

On-line services have become vitally important for the work of plaintiffs and many other state employees due to the irreplaceable information and communications services they provide. See id., ¶¶ 24-31. This is especially true in the many instances where computers and Internet access have been provided to state employees for the precise purpose of facilitating research and open inquiry. See id., ¶¶ 127-132. Thus, like a vast library, cyberspace has become an essential locus of free inquiry and expression which demands special First Amendment consideration. Cf. Board of Education v. Pico, 457 U.S. 853, 867 (1982).

B. The Act is an Impermissible Content and Viewpoint-Based Attempt to Suppress Information and Ideas on the Important But Controversial Subject of Sexuality.

Prohibiting the use of state computer facilities if such use involves "sexually explicit content" is on its face content-based. See Simon & Schuster v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991). As such, the Act is precisely the type of burden on speech which the First Amendment forbids. Turner Broadcasting System v. F.C.C., 512 U.S. 622, 641-3 (1994) ("Turner I"); Consolidated Edison v. Public Service Commission, 447 U.S. 530, 536 (1980); F.C.C. v. League of Women Voters, 468 U.S. 364, 383-4 (1984).

"Sexually explicit content" is not only clearly content-based but also a viewpoint-based category of speech. As the Supreme Court explained in Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510 (1995), viewpoint discrimination is "an egregious form of content discrimination" and occurs whenever "an entire class of viewpoints" (in that case, religious ones) is restricted. Id., 115 S.Ct. at 2516, 2517. That is because public debate is "complex and multifaceted," and discrimination against whole categories of ideas (including sexual ones) can "skew" the debate in "multiple ways." Id. at 2517.

The Act does precisely this by banning computer research and other communications by state employees if the information or ideas exchanged are "sexually explicit." Such a ban greatly restricts the ability of professors, research assistants, librarians, museum staff, social work professionals, and many others to research sexual subjects and ideas. As the Court of Appeals ruled in Finley v. National Endowment for the Arts, 100 F.3d 671, 681 (9th Cir. 1996), pet. for cert. pending, 66 USLW 3171 (Aug. 29, 1997), arts funding criteria that require conformity to "general standards of decency and respect for the diverse beliefs and values of the American public" are viewpoint-based.4 So here, the legislature has impermissibly "use[d] [its] authority over employees to silence discourse, not because it hampers public functions, but simply because [it] disagree[s] with the content of employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987).

C. The Government's Status as an Employer Does Not Save the Act From Unconstitutionality; a Government Employer May Only Impose a Content-Based Ban on Speech Relating to Matters of Public Concern if Necessary and Narrowly Tailored to the Government's Interest in Maintaining an Efficient Workplace.

Even if the content and viewpoint-based nature of the Act does not render it unconstitutional per se, 5 the Act cannot survive the high level of scrutiny demanded of content and viewpoint-based burdens on employee speech. It is well-established that public employees retain free speech rights in connection with their employment. "[T]he theory that public employment may be subjected to any condition regardless how unreasonable, has long been rejected." Keyishian v. Bd. of Regents, 385 U.S. 589, 605-6 (1967). See also Rutan v. Republican Party of Illinois, 497 U.S. 62, 72 (1990). Rather, the Supreme Court has made it abundantly clear that public employees retain their rights to speak on matters of public concern. See, e.g., NTEU, 513 U.S. at 466. In such instances, "the Government bears the burden of justifying its adverse" treatment of that speech. Id.

The government's burden to justify a restriction on employee speech is substantially heightened where, as with the Act, the restriction consists not of a "single supervisory decision," but of a "wholesale deterrent to a broad category of expression by a massive number of potential speakers," which "chills potential speech before it happens." NTEU at 467-8. In such instances, the government must show "that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." Id. at 468 (quoting Pickering v. Board of Educ., 391 U.S. 563, 571 (1968)). This standard recognizes that the First Amendment does not tolerate a restriction on public employee speech that, like the Act, "deters an enormous quantity of speech before it is uttered, based only on speculation that the speech might threaten the government's interests." NTEU, 513 U.S. at 467. Such a restriction not only infringes the First Amendment rights of all present and future employees, it "also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written or said." Id. at 470. 

The content-based nature of the Act increases the Commonwealth's burden under the NTEU analysis. Content and viewpoint-based prior bans on employee speech must meet the same "least restrictive means" test as any other content-based restrictions. See Simon & Schuster, 502 U.S. at 115-6; Burnham v. Ianni, 119 F.3d 668, 674 (8th Cir. 1997) (applying content discrimination strict scrutiny standard to censorship of public employee speech). Thus, even more so than in NTEU, the government's burden cannot be met by mere "speculation that the speech might threaten" the government's interests. NTEU, 513 U.S. at 467. Rather, the Commonwealth must demonstrate that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 475 (quoting Turner I at 664).

The NTEU test has been consistently recognized as the applicable standard for evaluating all "regulations proscribing a broad category of [government employee] speech by a large number of speakers." Sanjour, 56 F.3d at 91;Latino Officers Association v. Safir, 1997 U.S. Dist. LEXIS 10983, *16 (S.D.N.Y. 1997); Yniguez v. Arizonans for Official English, 69 F.3d 920, 939 (9th Cir. 1995), vacated as moot, Arizonans for Official English v. Arizona, 117 S.Ct. 1055 (1997). Thus, the Act can only be justified as a restriction on public employee speech if it meets a heightened version of the NTEU standard for broad content- and viewpoint-based restrictions on employee speech.

D. The Act is Not Necessary to And Does Not Serve Any Legitimate Interest of the Commonwealth as an Employer.

The Act is not narrowly tailored to serve any of the interests that the Commonwealth has asserted.8 Initially, it is important to note that there is no legislative history indicating that the legislature investigated problems of inefficiency or sexual harassment in state government and determined that the Act was a necessary remedy. Instead, the interests the Commonwealth now asserts appear to be the inventions of its attorneys. This is not an acceptable basis for restricting First Amendment rights. See Turner Broadcasting Systems v. F.C.C., 117 S.Ct. 1174, 1186, 1196 (1997) ("Turner II) (court will not accept "alternative formulations" of counsel that are inconsistent with the interests considered by the legislature); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 72 (1981); Basiardanes v. City of Galveston, 682 F.2d 1203, 1215 (5th Cir. 1982) (government must show that interest was considered in adopting the statute). This fact alone is sufficient to render the Act constitutionally insupportable.

In any event, the Act is hardly the least restrictive means available to serve any of the three broadly and vaguely stated interests that the Commonwealth has now articulated. 9 First, the Act cannot be defended as a measure necessary to workplace efficiency. The Commonwealth fails to explain why this interest cannot be addressed with content-neutral rules, rather than through a restriction aimed solely at sexually explicit speech. Indeed, prior to the Act, most state agencies already had such content-neutral policies in place which effectively dealt with incidents of unauthorized computer use. See S.U.F., ¶¶ 133-138. In addition, the Commonwealth's Policies and Procedures Manual bars state employees from making "unauthorized use" of any equipment; the Policy was recently amended specifically to include the Internet. Id., ¶¶ 133-135. The state's colleges and universities have varying policies relating to personal computer use, consistent with the functions of academic institutions, and they recognize the broad range of on-line research, communication, and professional development that is non-disruptive and in fact consistent with their mission. Id., ¶¶ 128, 131-132, 137. These policies are far more attuned to the actual needs and

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