Urofsky v. Gilmore

• Decision Date: 25 October 1999
• Docket Number: No. 98-1481,CA-97-701-A,98-1481
• Citation: 216 F.3d 401
• Parties: (4th Cir. 2000) MELVIN I. UROFSKY; PAUL SMITH; BRIAN J. DELANEY; DANA HELLER; BERNARD H. LEVIN; TERRY L. MEYERS, Plaintiffs-Appellees, v. JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendant-Appellant. AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS; THE AUTHORS GUILD; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Amici Curiae. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 401

216 F.3d 401 (4th Cir. 2000)

MELVIN I. UROFSKY; PAUL SMITH; BRIAN J. DELANEY; DANA HELLER; BERNARD H. LEVIN; TERRY L. MEYERS, Plaintiffs-Appellees, v. JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia, Defendant-Appellant.

AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS; THE AUTHORS GUILD; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Amici Curiae.

No. 98-1481 (CA-97-701-A).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: October 25, 1999.

Decided: June 23, 2000.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: William Henry Hurd, Senior Counsel to the Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Marjorie Heins, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON BRIEF: Mark L. Earley, Attorney General of Virginia, Peter R. Messitt, Senior Assistant Attorney General, Alison Paige Landry, Assistant Attorney General, Rita R. Woltz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Ann Beeson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Louis M. Bograd, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C.; Michael H. Hammer, Todd G. Hartman, WILKIE, FARR & GALLAGHER, Washington, D.C., for Appellees. Jonathan Alger, Donna Euben, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Washington, D.C.; J. Joshua Wheeler, Robert M. O'Neil, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; Edward M. McCoyd, THE AUTHORS GUILD, New York, New York, for Amici Curiae.

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed by published opinion. Judge Wilkins wrote the majority opinion, in which Judges Widener, Niemeyer, Luttig, Williams, Traxler, and Hamilton joined. Judge Luttig wrote a concurring opinion; Judge Hamilton wrote a concurring opinion; and Chief Judge Wilkinson wrote an opinion concurring in the judgment. Judge Murnaghan wrote a dissenting opinion, in which Judges Michael, Motz and King joined.

OPINION

WILKINS, Circuit Judge:

Appellees, six professors employed by various public colleges and universities in Virginia, brought this action challenging the constitutionality of a Virginia law restricting state employees from accessing sexually explicit material on computers that are owned or leased by the state.¹ See Va. Code Ann. §§ 2.1-804 to -806 (Michie Supp. 1999) (the Act). The district court granted summary judgment in favor of Appellees, reasoning that the Act unconstitutionally infringed on state employees' First Amendment rights. See Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998). A panel of this court reversed that decision, holding that our prior en banc opinion in Boring v. Buncombe County Board of Education, 136 F.3d 364, 368-69 (4th Cir. 1998) (en banc), compelled the conclusion that the restriction on state employees' access to sexually explicit material on computers owned or leased by the state is constitutional because the Act regulates only state employees' speech in their capacity as state employees, as opposed to speech in their capacity as citizens addressing matters of public concern. See Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. 1999). A majority of the active circuit judges thereafter voted to hear this appeal en banc. We now hold that the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First Amendment. Accordingly, we reverse the decision of the district court.

I.

The central provision of the Act states: Except to the extent required in conjunction with a bona fide, agency-approved research project or other agencyapproved 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[, Va. Code Ann. §§ 2.1-340.1 to -346.1 (Michie Supp. 1999)].

Va. Code Ann. § 2.1-805.² Another section of the Act defines "sexually explicit content." When the district court ruled, and when the panel initially considered this appeal, the Act defined "sexually explicit content" to include:

(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.

Va. Code Ann. § 2.1-804 (Michie Supp. 1998). Following our panel decision, the Virginia General Assembly amended the definition of "sexually explicit content" to add the italicized language:

content having as a dominant theme (i) any lascivious description of or (ii) any lascivious 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.

Va. Code Ann. § 2.1-804 (Michie Supp. 1999) (emphasis added).³

As its language makes plain, the Act restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state. But, the Act does not prohibit all access by state employees to such materials, for a state agency head may give permission for a state employee to access such information on computers owned or leased by the state if the agency head deems such access to be required in connection with a bona fide research project or other undertaking. Further, state employees remain free to access sexually explicit materials from their personal or other computers not owned or leased by the state. Thus, the Act prohibits state employees from accessing sexually explicit materials only when the employees are using computers that are owned or leased by the state and permission to access the material has not been given by the appropriate agency head.

None of the Appellees has requested or been denied permission to access sexually explicit materials pursuant to the Act. Indeed, the record indicates that no request for access to sexually explicit materials on computers owned or leased by the state has been declined.⁴

Appellees maintain that the restriction imposed by the Act violates the First Amendment rights of state employees. Appellees do not assert that state employees possess a First Amendment right to access sexually explicit materials on state-owned or leased computers for their personal use; rather, Appellees confine their challenge to the restriction of access to sexually explicit materials for work-related purposes. Appellees' challenge to the Act is twofold: They first maintain that the Act is unconstitutional as to all state employees; failing this, they argue more particularly that the Act violates academic employees' right to academic freedom.

II.

It is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment. See United States v. National Treasury Employees Union , 513 U.S. 454, 465 (1995) [hereinafter NTEU]; Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Nevertheless, the state, as an employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry as a whole. See Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (recognizing that "the government as employer . . . has far broader powers than does the government as sovereign"); Pickering , 391 U.S. at 568 (explaining that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general"). A determination of whether a restriction imposed on a public employee's speech violates the First Amendment requires "`a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Connick, 461 U.S. at 142 (alteration in original) (quoting Pickering, 391 U.S. at 568). This balancing involves an inquiry first into whether the speech at issue was that of a private citizen speaking on a matter of public concern. If so, the court must next consider whether the employee's interest in First Amendment expression outweighs the public employer's interest in what the employer has determined to be the appropriate operation of the workplace. See Pickering, 391 U.S. at 568.

The threshold inquiry thus is whether the Act regulates speech by state employees in their capacity as citizens upon matters of public concern. If a public employee's speech made in his capacity as a private citizen does not touch upon a matter of public concern, the state, as employer, may regulate it without infringing any First Amendment protection.⁵ See Connick, 461 U.S. at 146 (explaining that if a plaintiff's speech "cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary . . . to scrutinize the reasons for ...