Urofsky v. Allen

• Citation: 995 F.Supp. 634
• Decision Date: 26 February 1998
• Docket Number: Civil Action No. 97-701-A.
• Parties: Melvin I. UROFSKY, et al., Plaintiffs, v. George ALLEN, Governor of the Commonwealth of Virginia, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

995 F.Supp. 634

Melvin I. UROFSKY, et al., Plaintiffs, v. George ALLEN, Governor of the Commonwealth of Virginia, Defendant.

Civil Action No. 97-701-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 26, 1998.

Mary Catherine Bauer, A.C.L.U. of Virginia, Richmond, VA, for Plaintiffs.

Alison Paige Landry, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

BRINKEMA, District Judge.

Before the Court are the parties' crossmotions for summary judgment, in a case concerning the constitutionality of Va.Code § 2.1-804 et seq., entitled "Restrictions on State Employee Access to Information Infrastructure" ("the Act"), which restricts the ability of state employees to access sexually explicit material on state-owned or leased computers.

I.

The plaintiffs are professors at various Virginia state colleges and universities, who allege that the Act unconstitutionally interferes with their research and teaching. For example, plaintiff Urofsky has been reluctant to assign students online research assignments on "indecency" law because of the Act; Smith's website containing materials on gender roles and sexuality has been censored as a result of the Act; Meyers is concerned about his ability to access the Commonwealth's own database of sexually explicit poetry to continue his studies on the "fleshy school" of Victorian poets; Heller has stopped using the Internet to continue her research on lesbian and gay studies; and Levin and Delaney are reluctant to use the Internet to continue their psychological research on human sexual experience. Plaintiffs contend that the Act, which became effective on July 1, 1996, violates their First Amendment right to free speech, and ask this Court to grant them summary judgment invalidating the Act. Defendant argues in response that the Act is a legitimate limitation of the speech of government employees, and asks the Court for summary judgment affirming the Act's validity.

Section 2.1-805 of the Act provides that: 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.

Section 2.1-804 defines "sexually explicit" content broadly 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.¹

Section 18.2-390 of Virginia's Criminal Code provides further definitions for the Act:

"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, public 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.

Although the Act restricts the ability of state employees to research, speak on, or receive information concerning sexually explicit topics via state computers, it does not completely prohibit such activities. Instead, the Act permits an employee to access sexually explicit material only after receiving written approval from the appropriate agency head who may grant such approval only if the proposed use is "required" in connection with a "bona fide" research project or undertaking. See Va.Code § 2.1-805.

II. The Applicable Standard of Review for Speech by Government Employees

When government employees speak on matters of public concern their speech is entitled to First Amendment protection under the standard set forth in Pickering v. Board of Education. See 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); see also Connick v. Myers, 461 U.S. 138, 147-49, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (speech of public employees on matters of merely private concern such as personal employment grievances is unprotected). Under the Pickering standard, the Court must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as employer, in promoting the efficiency of the public services it performs through its employees." Id. at 568. This balancing test applies equally to speech within the workplace as it does to speech outside it. See Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (Pickering balancing applied to employee's on-the-job statements).

The Act's broad definition of "sexually explicit" content obviously includes obscene speech, that is, speech which lacks "serious literary, artistic, political, or scientific value;" that is "patently offensive;" and appeals primarily to a "prurient interest." See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Such speech does not enjoy First Amendment protection. However, the Act also applies to sexually explicit speech that is normally protected. For example, the Act's broad definition of "sexually explicit" content would include research and debate on sexual themes in art, literature, history and the law, speech and research by medical and mental health professionals concerning sexual disease, sexual dysfunction, and sexually related mental disorders,² and the routine exchange of information among social workers on sexual assault and child abuse. Much of this information can be expected to be of benefit to the public. Indeed, the Supreme Court has expressly stated that sex is "one of the vital problems of human interest and public concern." Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). As such, the speech of state employees on sexually explicit topics includes speech on matters of public concern entitled to First Amendment protection under the Pickering balancing test.

The Commonwealth argues that "state employee computer use is not protected speech under the First Amendment because the employees are acting in their capacities as government employees, not public citizens." (Memo at 8). To support this position, the Commonwealth relies on DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir.1995) and Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.1998) (en banc). Both cases and Pickering focused on whether after-the-fact discipline of a public employee by a government employer violated the employee's First Amendment free speech rights. They did not address, as we must here, a broad statute which prospectively addresses the speech of over 100,000 public employees. Indeed, as the DiMeglio court recognized, the relevant inquiry as to whether a public employee's speech on a matter of public concern is protected "requires a `particularized balancing' that is subtle, difficult to apply, and not yet well defined." DiMeglio 45 F.3d at 806 (citing Connick, 461 U.S. at 150).

Because the Act before us establishes a prospective deterrent "to a broad category of expression by a massive number of potential speakers," U.S. v. National Treasury Employees Union, 513 U.S. 454, 467, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (hereinafter "NTEU"), the government's justification for the restriction must be correspondingly higher. Id. at 468 (such a restriction "gives rise to far more serious concerns than could any single supervisory decision"). In addition, the Supreme Court has recognized a difference between "adverse action taken in response to actual speech," and an up-front restriction like that found in the Act, which "chills potential speech before it happens." Id. (citing Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)). This feature of the Act also necessarily increases the government's burden. Moreover, prospective restrictions on public employee speech impact heavily "on the public's right to read and hear what the employees would otherwise have written and said." Id. at 470. This lost public benefit is particularly great where a government employee speaks on matters of which she has specialized knowledge. See Sanjour v. EPA, 56 F.3d 85, 94 (D.C.Cir.1995) (en banc) ("[A]s numerous courts and commentators have observed, government employees are in a position to offer the public unique insights into the workings of the government generally and their areas of specialization in particular."); see also Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). Accordingly, the public's interest in receiving the speech of government employees must also be weighed against the government's interest in a challenged restriction. To address these concerns, the Supreme Court expanded the Pickering test and held in NTEU that when the government broadly restricts public employee speech, it has the burden of...