Urofsky v. Allen Complaint

May 8, 1997

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

MELVIN I. UROFSKY, PAUL SMITH, BRIAN J. DELANEY, DANA HELLER, BERNARD H. LEVIN, and TERRY L. MEYERS,
Plaintiffs

v.

GEORGE ALLEN, in his official capacity as Governor of the Commonwealth of Virginia,
Defendant

Civ. Action No.
COMPLAINT

(1) This is a civil action under 42 U.S.C. § 1983 for declaratory and injunctive relief challenging the constitutionality of Virginia Code §§ 2.1-804-806 (hereinafter the Act). The Act prohibits state employees, including employees of state colleges and universities, from using state-owned or leased computer equipment to "access, download, print or store any information infrastructure files or services having sexually explicit content," except with the express permission of their agency head for "a bona fide, agency-approved research project or other agency-approved undertaking."

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(2) The six professor-plaintiffs in this action are employees of state colleges or universities in Virginia who regularly use state-owned or leased computers to connect to the Internet and other online communications services to access, download, print, or store sexually explicit but nonobscene material as part of their teaching, research, and other professional responsibilities. Human sexuality is an important subject of scholarly research, writing, and teaching, and is an integral part of higher education in literature, history, the visual arts, science, health, anthropology, sociology, psychology, and other academic fields.

(3) Plaintiffs assert that the Act is unconstitutional on its face and as applied because it: (a) violates their rights and the rights of other state employees to freedom of speech under the First and Fourteenth Amendments of the United States Constitution; (b) is unconstitutionally overbroad and vague; and (3) violates the First Amendment and Due Process rights of public employees by establishing a system of prior restraint under which they may not speak or receive information and ideas without prior government approval.

JURISDICTION

(4) This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3), and 2201.

(5) Venue is proper in the Eastern District of Virginia, Alexandria Division, under 28 U.S.C. § 1391 and Rule 3 of the Rules for the U.S. District Court, Eastern District of Virginia.

PARTIES

(6) Plaintiff MELVIN I. UROFSKY is employed by the Commonwealth of Virginia as a Professor of History at Virginia Commonwealth University.

(7) Plaintiff PAUL SMITH is employed by the Commonwealth of Virginia as a Professor of English and Cultural Studies at George Mason University.

(8) Plaintiff BRIAN J. DELANEY is employed by the Commonwealth of Virginia as an Associate Professor of English at Blue Ridge Community College ("BRCC"). BRCC is one of the 23 public community colleges that make up the Virginia Community College System.

(9) Plaintiff DANA HELLER is employed by the Commonwealth of Virginia as an Associate Professor of Contemporary American Literature at Old Dominion University.

(10) Plaintiff BERNARD H. LEVIN is employed by the Commonwealth of Virginia as a Professor of Psychology at BRCC.

(11) Plaintiff TERRY L. MEYERS is employed by the Commonwealth of Virginia as a Professor and Chair of the Department of English at the College of William & Mary.

(12) Defendant GEORGE ALLEN is sued in his official capacity as Governor of the Commonwealth of Virginia. He is charged under the Virginia Constitution and by statute with the execution of the laws of Virginia.

FACTS

The Act

(13) The Act, which became effective on July 1, 1996, provides in pertinent part:

§ 2.1-805. Restriction on agency employee access via computers to materials with sexually explicit content.

Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency-approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act.

(14) Section 2.1-804 of the Act, which contains the applicable definitions for

§ 2.1-805, provides:

"Agency" means any agency, authority, board, department, division, commission, institution, institution of higher education, bureau, or like governmental entity of the Commonwealth, except the Department of State Police.

"Information Infrastructure" means telecommunications, cable, and computer networks and includes the Internet, the World Wide Web, Usenet, bulletin board systems, on-line systems, and telephone networks.

"Sexually explicit content" means (i) any description of or (ii) any picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting, 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.

(15) Section 18.2-390 of the Virginia Code contains the following definitions:

"Nudity" means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

"Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

"Sexual conduct" means actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such be female, breast.

"Sadomasochistic abuse" means actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

(16) The Act specifies no procedures for seeking, or deciding requests for, prior approval to access, download, print or store sexually explicit information. Nor does it provide any standards regarding the circumstances under which approval should be granted, or the time within which applications must be decided. Upon information and belief, the state has not issued any regulations regarding the process or standards for approval.

(17) Upon information and belief, the General Assembly has not published, documented, or otherwise articulated any official findings as to any government interest served by the Act.

(18) As professors employed by state institutions of higher education, the plaintiffs are all employees of Virginia state agencies, as defined in § 2.1-804 of the Act.

The Communications Affected by the Act

(19) The Act's prohibition on use of agency-owned or leased computers to access, download, print or store any "information infrastructure files or services" having sexually explicit content affects the full range of computer communications that are available today to most academics and substantial numbers of other state employees, and that have become an essential tool in conducting research, assembling teaching materials, discussing issues of common interest, and keeping up with developments in the field. The "information infrastructure" referred to in the Act encompasses the global Internet, including the World Wide Web, Usenet discussion groups, online chat rooms, electronic mail (e-mail), and electronic mailing lists (so-called Listservers or mail exploders), as well as electronic bulletin boards and other online communications systems.

(20) The GLOBAL INTERNET is the largest computer network affected by the Act, and the largest online network in the world. It links together smaller networks set up by universities, business and nonprofit organizations, governments, and individuals. The Internet is a decentralized global medium of communication in which organizations and individuals communicate with each other, express opinions, share ideas, educate themselves, and seek, exchange or publish information on every imaginable topic either to specific recipients or to the entire world, almost instantaneously and at minimal cost. While statistics change frequently due to rapid growth, the Internet is currently believed to connect, worldwide, at least 59,000 computer networks, 2.2 million computers, 159 countries, and 50 million users. By some estimates, there will be as many as 200 million Internet users by the year 1999.

(21) Anyone with a computer, modem, and telephone line can obtain access to the Internet through an Internet Service Provider ("ISP"), usually for a fee. Many businesses, educational institutions (including all of the state universities/colleges by which plaintiffs are employed), and other government agencies have computer networks that are directly connected to the Internet, and give their employees, faculty, and students free or low-cost, and usually unlimited access, Internet accounts.

(22) In addition to the global Internet, communications over the large national computer networks known as COMMERCIAL ONLINE SERVICES, including Prodigy, America Online, and CompuServe, are also restricted by the Act. Commercial online services enable their subscribers to communicate with each other, access the Internet, and access other proprietary content, information databases, and services available only to subscribers.

(23) The Act also restricts expression on thousands of local dial-in computer services known as BULLETIN BOARD SYSTEMS ("BBSs"). BBSs are online networks independent of the Internet that usually focus on specialized subjects, and often offer e-mail services, online discussion groups, and information databases. Using a modem and telephone connection, subscribers dial directly from their computers into the BBS host computer. There are several hundred BBSs in Virginia, operated by individuals, nonprofit organizations, educational institutions, advocacy groups, and business entities. Thousands of additional BBSs are located in other states and can be reached from Virginia over long distance telephone lines or through a network of BBS systems known as "Fidonet."

(24) Computer users communicate with each other or access information and ideas over the computer networks described above in many different ways, including e-mail, discussion groups, and chat rooms, and information retrieval systems like the World Wide Web or Gopher. The Act restricts Virginia public employees' ability to use all of these means of communication.

(25) ELECTRONIC MAIL or E-MAIL is the basic method of communication over computer networks. It allows one user to send a message to any other user or multiple users on the network. Because mass mailings via e-mail are relatively easy and inexpensive, e-mail enables anyone to publish and distribute information on any topic simply by compiling a mailing list and sending the information to everyone on the list.

(26) When an e-mail message is sent, a copy of the message is automatically generated and stored on the sending computer in a log file. Since the Act covers the "storage" of information, it prohibits plaintiffs and other state employees from using e-mail to send any message with "sexually explicit content" as defined in the Act.

(27) Similarly, online users receive e-mail messages from other parties. These may be unsolicited messages from unknown sources, or may otherwise give no advance indication of their contents. If plaintiffs or other state employees receive and open an e-mail message with sexually explicit content, they would be violating the Act even though they had no previous knowledge of the contents of the communication.

(28) One of the most popular forms of communication over computer networks are DISCUSSION GROUPS, which allow users to post messages on a public computerized bulletin board or automated electronic mailing list of subscribers (a mail exploder or ListServer), and to read and respond to messages posted by others. Discussion groups are formed by individuals, organizations, particular computer networks, commercial online services, and local BBSs. They now exist for nearly every imaginable subject, including virtually all academic disciplines, and are fruitful means of exchanging information and ideas among scholars.

(29) USENET NEWSGROUPS are a popular set of bulletin board discussion groups available on the Internet and other networks. There are currently about 20,000 newsgroups, which receive more than 250,000 new messages each day. Many of them address academic subjects of interest to the plaintiffs.

(30) Similar to discussion groups are CHAT ROOMS, which allow users to engage in real-time conversations by typing messages and reading the messages typed by other participants. Chat rooms are found on the Internet, commercial online services, and local BBSs. Some chat rooms are organized for social entertainment; others to provide a forum for discussion of issues or ideas. Scholars and researchers frequently use chat rooms to discuss developments in their fields of interest. Like private e-mail messages, discussion groups, and automated mailing lists, chat rooms would subject plaintiffs and other state employees to liability under the Act whenever they contain sexually explicit information, even if the employee had no prior knowledge of the content of the communication.

(31) Another major category of communication on computer networks involves the publication of information and ideas which can then be retrieved by anyone in the world who has access to the network, at relatively low cost. The most popular such information retrieval system is the WORLD WIDE WEB (the "Web"). Anyone with access to the Internet and proper software can publish "Web pages" containing text, images, sound, and even video. (32) The Web is comprised of millions of separate "Web sites" created by individuals and organizations; each Web site may include one or more different Web pages. Because there are thousands if not millions of Web sites containing information useful to students and scholars in virtually every field of inquiry, the Web has become an essential tool for academic research. The Web also provides an important platform for scholars to make their work available not only to other scholars and students but to those outside the traditional realm of academic publishing. In addition, it has become an essential research, publication, and information retrieval tool for employees in other areas of state government, including the courts, public education, libraries, museums, and social and health services.

(33) The Web contains a unique "linking" mechanism that allows readers to select text or images in a Web page and that then automatically transfers the reader to a different location on the Internet. The author of any Web page can create a link that points to any other Web page. The linking feature is a critical characteristic of the Web because it ties different Web pages on related topics together for near-instantaneous access, even though the individual Web pages might be stored in different computers in different parts of the world.

(34) "Search engines" and "directories" on the Web are services that collect and organize millions of different links to Web pages. Search engines such as Yahoo, Alta Vista, Excite, Infoseek, Lycos, and Webcrawler allow users to search the entire Web (as well as newsgroups and other Internet services) for particular words or phrases. The search engine then provides a list of Web pages that contain the search term, and allows the user to link to the Web page of his/her choice.

(35) The Web is currently the most advanced information system on the Internet, making it an essential tool for educational and academic purposes. All of the plaintiffs use the Web to do research in their academic areas, and make use of the links on various Web pages to connect to and browse related Web sites. In browsing and exploring these links, they may access sexually explicit content, thereby violating the Act, even though they had no prior knowledge of the content of the site.

(36) Some of the plaintiffs publish and maintain Web sites. Because these Web sites are "stored" on state computer equipment, the Act prohibits plaintiffs from publishing on these sites any sexually explicit content without prior approval.

(37) Another information retrieval system on the Internet is called GOPHER, a "menu"-driven program that allows the user to "gopher" through multiple layers of menus to search for information on a particular topic. Like the Web, Gopher may yield sexually explicit content without a user's prior knowledge of what the site contains.

Relationship of Plaintiffs to the Act

(38) MELVIN I. UROFSKY has for the past 23 years been Professor of History at Virginia Commonwealth University, where he also directs the interdisciplinary doctoral program in Public Policy and Administration. Among his many published works are American Zionism from Herzl to the Holocaust (1976), Documents of American Constitutional and Legal History (ed.) (1989), Felix Frankfurter: Judicial Restraint and Individual Liberties (1991), and The Supreme Court Justices: A Biographical Dictionary (ed.) (1994). In 1995, Professor Urofsky was awarded Virginia Commonwealth University's Award of Excellence in teaching. The United States government has sent Professor Urofsky to Canada, France, the former Yugoslavia, Romania, Australia and Turkey to lecture on American democracy and the Bill of Rights.

(39) Professor Urofsky's academic specialty is constitutional and legal history. Among the courses he teaches are seminars in recent U.S. history, U.S. constitutional history, and mass communications law. In addition to his teaching and administrative responsibilities, Professor Urofsky is expected to do research and publish in his fields of expertise. To that end, he is particularly concerned with the way that new means of technology, particularly the Internet, affect the First Amendment rights of free speech and press.

(40) Professor Urofsky's teaching and research responsibilities frequently require him to use agency-owned or leased computer equipment to access, download, print, or store information having sexually explicit but nonobscene content. For example, in his courses on recent constitutional history, Professor Urofsky's classes study the Supreme Court's First Amendment decisions, including decisions in the area of obscenity. A major question in these cases is what constitutes obscenity, and how it is distinguished from sexually explicit but nonobscene speech. Internet resources such as chat rooms and Web sites, some of them operated by university or public advocacy groups, are obvious places to examine a wide range of sexually oriented materials in order to inform discussion of what currently constitutes obscenity. Professor Urofsky is now reluctant to assign students Internet-related tasks in the area of First Amendment and obscenity, for fear that they will access information that he himself cannot view online under the Act.

(41) As part of his class in Mass Communications Law in the fall of 1996, Professor Urofsky was planning to assign students the task of researching the Communications Decency Act of 1996, 47 U.S.C. § 223, by searching the Internet for sites containing sexually explicit speech that might violate the Act. He wanted his students, many of whom are not familiar with resources on the Internet, to see for themselves how easy or difficult it is for minors to access such material, and then to evaluate whether the Communications Decency Act would be effective or constitutional. However, Professor Urofsky removed this assignment from his syllabus because he feared that the Act made it a violation of Virginia law for him to check the work of his students using his university-supplied computer.

(42) Although Professor Urofsky is aware that under the Act he may request prior approval for a specific project involving sexually explicit material, he does not believe that such a process is consistent with academic freedom or would be workable given its uncertain results, its inevitable time delays, and the difficulty in defining in advance what material might be accessed. He has not received any instructions regarding how approval might be sought; and because to his knowledge no standards have been adopted on the meaning of "bona fide agency research project," he cannot predict whether, and under what conditions, his specific uses of university computer facilities might be approved.

(43) PAUL SMITH has been Professor of English and Cultural Studies at George Mason University since 1995. He was previously Associate Professor and Coordinator of Literary and Cultural Studies at Carnegie Mellon University, and Visiting Professor at the Center for Psychoanalysis and Literature at Kent State University. Among his published works are Pound Revised (1983) (a study of Ezra Pound), Men in Feminism (ed.) (1987), and Boys: Masculinity and Contemporary Culture (ed.) (1996). He is an expert on semiotics, feminist theory, film criticism, and literary theory, and has written scholarly essays on pornography, culture, and censorship. For the past ten years, much of his extensively published research has focused on the relations among gender, sexuality, and visual representations, including the ways in which pornography shapes gender roles and sexual identity.

(44) Professor Smith's teaching and research responsibilities frequently require him to use agency-owned or leased computer equipment to access, download, print, or store sexually explicit but nonobscene information. For example, he has recently conducted research on La Cicciolina, the former pornography actress and member of the Italian Parliament, and particularly on her initiatives to combat "moralism" in contemporary politics. He has visited numerous Web sites in connection with his research on art, culture, and pornography that contain depictions of nudity or sexuality.

(45) As part of his academic work, Professor Smith publishes and maintains his own Web site using George Mason computer equipment. His purpose is to explore visual culture, gender and sexuality in the context of an anti-censorship statement that runs throughout the site. Some of the images on the site have been sexually explicit and are directly related to his research on the nature and effect of pornography as an industry that defines and reflects social relationships in contemporary culture.

(46) In the fall of 1996, George Mason officials directed Professor Smith to remove several images from his Web site which they believed violated the Act's prohibition on storing sexually explicit content. Professor Smith reluctantly removed these items and has not subsequently reloaded them. He has also since refrained from adding new material to his Web site that could be considered sexually explicit.

(47) Professor Smith was told that he could ask the Provost for approval to use sexually explicit material on his Web site. He did not do so because he believes that the Act's preapproval requirement violates his academic freedom by making free speech conditional on government approval and establishing a system to police the free flow of ideas.

(48) BRIAN J. DELANEY is an Associate Professor of English at Blue Ridge Community College (BRCC), where he has taught primarily courses in American literature and composition for the last 25 years. He has made numerous presentations and published many articles in the field of English composition.

(49) BRCC strongly supports the integration of computing skills into the curriculum. Over the last three years, BRCC has created a strategic plan to become a leading institution in the use of computers as an educational resource and has invested heavily in professional development for faculty and staff to make this plan a reality. Many BRCC faculty have already developed Web pages; most will have them by the end of 1997. Active participation in these activities is an explicit condition of Professor Delaney's employment.

(50) Professor Delaney's teaching and research responsibilities frequently require him to use agency-owned or leased computer equipment to access, download, print, or store information having sexually explicit but nonobscene content. For example, one of the regular activities in his Survey of American Literature course is a "Critical Perspective Project" in which he asks students to develop a clear and detailed sense of a particular critical perspective (e.g., psychoanalytical, feminist, deconstructionist, cultural), as a tool for analysis and discussion of contemporary literature. One of the major tools for developing the project is the Web, which students access from both computer labs on campus and personal computers at home. Given the diversity of material available on the Web -- both sexually explicit and non-sexually explicit -- it is virtually impossible to know what materials students will encounter and pass along to Professor Delaney. Professor Delaney fears that he must either risk violating the Act anytime he uses his university-supplied computer to monitor his students' work, or else must forego using computer research facilities in his teaching, thereby violating BRCC's express policy requiring the use of computers in the teaching process.

(51) Professor Delaney regularly uses e-mail, the Web, and other information infrastructure files as research tools. He uses e-mail extensively to exchange information with both colleagues and students. His research requires him to access numerous Web sites each week in the

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