Urofsky v. Gilmore

Filed: July 6, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-1481
(CA-97-701-A)
Melvin I. Urofsky, et al,
Plaintiffs - Appellees,
versus
James S. Gilmore, III, etc.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed June 23, 2000, as follows:
On page 25, first paragraph, line 25 -- a comma is inserted
after the word “make.”
On page 27, first full paragraph, line 21 -- the word “there-
fore” is corrected to read “therefor.”
On page 33, first paragraph, line 3 -- the word “which” is
changed to read “that.”
On page 33, first full paragraph, lines 10-11 -- the sentence
is changed to begin “It is for this reason ....”
- 2 -
On page 34, first paragraph, line 9 -- the line is changed to
read “that which he wishes to reach. That balancing would yield
either the validation of the ....”
On page 37, third full paragraph, line 1 -- the paragraph is
changed to begin “In reality, however, the true academic ....”
On page 38, first paragraph, line 11 -- the comma after the
word “speech” is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Volume 1 of 2
OPINION ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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
No. 98-1481
Commonwealth of Virginia,
Defendant-Appellant.
AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS; THE AUTHORS GUILD; THE
THOMAS JEFFERSON CENTERFORTHE
PROTECTION OF FREE EXPRESSION,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-97-701-A)
Argued: October 25, 1999
Decided: June 23, 2000
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, Trax-
ler, and Hamilton joined. Judge Luttig wrote a concurring opinion;
Judge Hamilton wrote a concurring opinion; and Chief Judge Wilkin-
son wrote an opinion concurring in the judgment. Judge Murnaghan
wrote a dissenting opinion, in which Judges Michael, Motz and King
joined.
_________________________________________________________________
COUNSEL
ARGUED: William Henry Hurd, Senior Counsel to the Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellant. Marjorie Heins, AMERICAN CIVIL LIBER-
TIES 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 Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellant. Ann Beeson, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Louis M. Bograd,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washing-
ton, 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 PRO-
TECTION OF FREE EXPRESSION, Charlottesville, Virginia;
Edward M. McCoyd, THE AUTHORS GUILD, New York, New
York, for Amici Curiae.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Appellees, six professors employed by various public colleges and
universities in Virginia, brought this action challenging the constitu-
tionality of a Virginia law restricting state employees from accessing
2
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 deci-
sion, 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 agency-
approved undertaking, no agency employee shall utilize
agency-owned or agency-leased computer equipment to
access, download, print or store any information infrastruc-
ture 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)].
_________________________________________________________________
1 Appellees named George Allen, then Governor of Virginia, as defen-
dant. Subsequently, James S. Gilmore, III was elected Governor and was
substituted as a party.
3
Va. Code Ann. § 2.1-805.2 Another section of the Act defines "sexu-
ally 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, draw-
ing, motion picture film, digital image or similar visual rep-
resentation depicting sexual bestiality, a lewd exhibition of
nudity, as nudity is defined in § 18.2-390, sexual excite-
ment, 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 excite-
ment, 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
_________________________________________________________________
2 Another provision of the Act defines "agency" and "information infra-
structure":
"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, online sys-
tems, and telephone networks.
Va. Code Ann. § 2.1-804 (emphasis omitted).
3 Section 18.2-390 provides in pertinent part:
4
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 permis-
sion to access the material has not been given by the appropriate
agency head.
None of the Appellees has requested or been denied permission to
_________________________________________________________________
(2) "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 uncov-
ered male genitals in a discernibly turgid state.
(3) "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 persons clothed or unclothed genitals, pubic area, buttocks
or, if such be female, breast.
(4) "Sexual excitement" means the condition of human male
or female genitals when in a state of sexual stimulation or
arousal.
(5) "Sadomasochistic abuse" means actual or explicitly simu-
lated flagellation or torture by or upon a person who is nude or
clad in undergarments, a mask or bizarre costume, or the condi-
tion of being fettered, bound or otherwise physically restrained
on the part of one so clothed.
Va. Code Ann. § 18.2-390(2) to -390(5) (Michie 1996) (emphasis omit-
ted).
5
access sexually explicit materials pursuant to the Act. Indeed, the
record indicates that no request for access to sexually explicit materi-
als 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 main-
tain 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 sover-
eign 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 pos-
sesses in connection with regulation of the speech of the citizenry in
general"). A determination of whether a restriction imposed on a pub-
lic employee's speech violates the First Amendment requires "`a bal-
ance between the interests of the [employee], as a citizen, in
_________________________________________________________________
4 In June 1997, a machine shop supervisor in the Physics Department
at the College of William and Mary requested approval under the Act to
research non-work-related issues concerning his disability. An adminis-
tration official determined that prior approval was not necessary to
access such materials.
6
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public ser-
vices it performs through its employees.'" Connick, 461 U.S. at 142(alteration in original) (quoting Pickering, 391 U.S. at 568). This bal-
ancing 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 pri-
vate 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 plain-
tiff's speech "cannot be fairly characterized as constituting speech on
a matter of public concern, it is unnecessary . . . to scrutinize the rea-
sons for [the] discharge"); Holland v. Rimmer, 25 F.3d 1251, 1254-55
& n.11 (4th Cir. 1994). Whether speech is that of a private citizen
addressing a matter of public concern is a question of law for the
court and, accordingly, we review the matter de novo. See Connick,
461 U.S. at 148 n.7; Hall v. Marion Sch. Dist. Number 2, 31 F.3d 183,
192 (4th Cir. 1994); Holland, 25 F.3d at 1255.
To determine whether speech involves a matter of public concern,
we examine the content, context, and form of the speech at issue in
light of the entire record. See Connick, 461 U.S. at 147-48. Speech
involves a matter of public concern when it involves an issue of
social, political, or other interest to a community. See id. at 146. An
inquiry into whether a matter is of public concern does not involve
a determination of how interesting or important the subject of an
_________________________________________________________________
5 When a public employee's speech as a private citizen does not touch
upon a matter of public concern, that speech is not "totally beyond the
protection of the First Amendment," but "absent the most unusual cir-
cumstances, a federal court is not the appropriate forum in which to
review the wisdom of a personnel decision taken by a public agency."
Connick, 461 U.S. at 147.
7
employee's speech is. See Terrell v. University of Tex. Sys. Police,
792 F.2d 1360, 1362 (5th Cir. 1986). Further, the place where the
speech occurs is irrelevant: An employee may speak as a citizen on
a matter of public concern at the workplace, and may speak as an
employee away from the workplace. Compare Rankin v. McPherson,
483 U.S. 378, 388-92 (1987) (holding public employee's discharge
was violative of First Amendment when based on comment by
employee as a private citizen on a matter of public concern made at
work), with DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir. 1995)
(recognizing that speech by a public employee outside the workplace
was made in the employee's official capacity).
The Supreme Court has made clear that the concern is to maintain
for the government employee the same right enjoyed by his privately
employed counterpart. To this end, in its decisions determining
speech to be entitled to First Amendment protection the Court has
emphasized the unrelatedness of the speech at issue to the speaker's
employment duties. See NTEU, 513 U.S. at 465 (concluding that bal-
ancing test applied to employees' "expressive activities in their capac-
ity as citizens, not as Government employees" and noting that "[w]ith
few exceptions, the content of [employees'] messages [had] nothing
to do with their jobs"); id. at 466 (emphasizing that the Court has
applied the Pickering balancing test "only when the employee spoke
as a citizen upon matters of public concern rather than as an employee
upon matters only of personal interest"); id. at 480 (O'Connor, J.,
concurring in the judgment in part and dissenting in part) (agreeing
that balancing test was appropriate because restriction applied only to
"off-hour speech bearing no nexus to Government employment");
Pickering, 391 U.S. at 574 (explaining that when "the fact of employ-
ment is only tangentially and insubstantially involved in the subject
matter of the public communication made by [the employee], . . . it
is necessary to regard the [employee] as the member of the general
public he seeks to be"). Thus, critical to a determination of whether
employee speech is entitled to First Amendment protection is whether
the speech is "made primarily in the [employee's] role as citizen or
primarily in his role as employee." Terrell, 792 F.2d at 1362; see Bor-
ing, 136 F.3d at 368-69 (holding that the selection of a play by a high
school drama teacher did not involve a matter of public concern
because the choice was made by the teacher in her capacity as a
teacher in a matter dealing with curriculum); Holland, 25 F.3d at
8
1255-56 (concluding that speech by supervisor disciplining subordi-
nates was not speech as private citizen on matters of public concern
because it constituted "in-house communications between employees
speaking as employees"); see also DiMeglio, 45 F.3d at 805 (noting
that "the [Supreme] Court [has] distinguished between speaking as a
citizen and as an employee, and [has] focused on speech as a citizen
as that for which constitutional protection is afforded").
This focus on the capacity of the speaker recognizes the basic truth
that speech by public employees undertaken in the course of their job
duties will frequently involve matters of vital concern to the public,
without giving those employees a First Amendment right to dictate to
the state how they will do their jobs. For example, suppose an assis-
tant district attorney, at the District Attorney's direction, makes a for-
mal statement to the press regarding an upcoming murder trial--a
matter that is unquestionably of concern to the public. It cannot seri-
ously be doubted that the assistant does not possess a First Amend-
ment right to challenge his employer's instructions regarding the
content of the statement.6 In contrast, when the same assistant district
_________________________________________________________________
6 In this respect, restrictions on speech by public employees in their
capacity as employees are analogous to restrictions on government-
funded speech. For example, in Rust v. Sullivan, 500 U.S. 173 (1991),
the Court rejected an argument that regulations prohibiting abortion
counseling in a federally funded project violated the First Amendment
rights of the staff of clinics accepting federal funds, reasoning that "[t]he
employees' freedom of expression is limited during the time that they
actually work for the project; but this limitation is a consequence of their
decision to accept employment in a project, the scope of which is permis-
sibly restricted by the funding authority." Rust, 500 U.S. at 199. In both
situations--public employee speech and government-funded speech--
the government is entitled to control the content of the speech because
it has, in a meaningful sense, "purchased" the speech at issue through a
grant of funding or payment of a salary. The limits of government con-
trol are similar in both types of cases, as well: Just as the government as
provider of funds cannot dictate the content of speech made outside the
confines of the funded program, see id. at 198, the government as
employer is restricted in its ability to regulate the speech of its employees
when they speak not as public employees, but as private citizens on mat-
ters of public concern.
9
attorney writes a letter to the editor of the local newspaper to expose
a pattern of prosecutorial malfeasance, the speech is entitled to consti-
tutional protection because it is made in the employee's capacity as
a private citizen and touches on matters of public concern.
Judge Wilkinson and Judge Murnaghan fail to recognize the impor-
tance of the role of the speaker in determining whether speech by a
public employee is entitled to First Amendment protection. Under
their respective analyses, the assistant district attorney in the above
hypothetical would have a First Amendment right to challenge his
employer's directions regarding the press conference.7 It is difficult to
_________________________________________________________________
The insistence of Judge Wilkinson and Judge Murnaghan that a public
employee is entitled to First Amendment protection for speech made in
the course of his employment duties creates a fundamental and unneces-
sary schism between government-employee speech cases and
government-funding cases. Under their respective analyses, a public
employee would possess a First Amendment right to challenge his
employer's directions regarding, for example, the preparation and con-
tent of a report, while the same directions issued with respect to a report
prepared pursuant to a grant of funding would not be subject to a First
Amendment challenge.
7 Judge Wilkinson writes as though he believes that professors possess
a special constitutional right of academic freedom not enjoyed by other
citizens. However, his statement that he applies the Pickering analysis
solely to professors merely because "the statute's application to academic
inquiry" provides "a useful illustration," post at 42, might indicate that
he actually believes that they do not. If one reads his opinion this way,
then he could be understood to believe that all public employees, not just
professors, have First Amendment interests in speech made in the course
of their employment duties--a concession, even if tacit, that completely
undermines the arguments and analysis that he undertakes in his opinion.
Judge Wilkinson attempts to blunt the force of any such concession by
claiming that he is addressing an "as applied" challenge by Appellees.
See post at 42 n.1. This attempt must fail for the simple reason that none
of the Appellees have ever sought permission to access any materials on
the Internet pursuant to the terms of the Act. See Lawline v. American
Bar Ass'n, 956 F.2d 1378, 1386 (7th Cir. 1992) (holding that an "as
applied" challenge was improper when the provision had not yet been
10
imagine the array of routine employment decisions that would be
presented as constitutional questions to this court under this view of
the law. See Connick, 461 U.S. at 143 (recognizing that "government
offices could not function if every employment decision became a
constitutional matter").
The speech at issue here--access to certain materials using com-
puters owned or leased by the state for the purpose of carrying out
employment duties--is clearly made in the employee's role as
employee. Therefore, the challenged aspect of the Act does not regu-
late the speech of the citizenry in general, but rather the speech of
state employees in their capacity as employees. It cannot be doubted
that in order to pursue its legitimate goals effectively, the state must
retain the ability to control the manner in which its employees dis-
charge their duties and to direct its employees to undertake the
responsibilities of their positions in a specified way. Cf. Waters, 511
U.S. at 675 (explaining that restrictions on speech may be necessary
when "the government is employing someone for the very purpose of
effectively achieving its goals"); id. at 672 (noting that "even many
of the most fundamental maxims of . . . First Amendment jurispru-
dence cannot reasonably be applied to speech by government employ-
ees"); Connick, 461 U.S. at 143 (acknowledging that "government
offices could not function if every employment decision became a
constitutional matter"). The essence of Appellees' claim is that they
are entitled to access sexually explicit material in their capacity as
state employees by using equipment owned or leased by the state.
Because, as Appellees acknowledge, the challenged aspect of the Act
does not affect speech by Appellees in their capacity as private citi-
zens speaking on matters of public concern, it does not infringe the
First Amendment rights of state employees.
_________________________________________________________________
applied to the plaintiffs); National Commodity & Barter Ass'n v. United
States, 951 F.2d 1172, 1175 (10th Cir. 1991) (same). Moreover, the text
of Judge Wilkinson's concurrence--which addresses the constitutionality
of the statute as a whole, rather than with respect to any particular
application--makes clear that he is in fact responding to Appellees'
facial challenge.
11
III.
Alternatively, Appellees maintain that even if the Act is valid as to
the majority of state employees it violates the First Amendment aca-
demic freedom rights of professors at state colleges and universities,8
and thus is invalid as to them.9 In essence, Appellees contend that a
university professor possesses a constitutional right to determine for
_________________________________________________________________
8 For ease of reference, we will refer to public institutions of higher
learning generally as "universities." This designation includes neither pri-
vate institutions of higher learning nor public and private primary and
secondary schools, as constitutional considerations applicable to such
institutions are not pertinent to this appeal.
Although we discuss Appellees' argument regarding academic free-
dom as applying to professors, we note that in their brief Appellees
asserted that "[a]cademic freedom embraces not only professors but
[also] the librarians, research assistants, and other staff without whom
they cannot effectively function." Brief of the Appellees at 22. And, at
oral argument Appellees went so far as to suggest that the Act infringes
the academic freedom of any state employee who engages in "intellectual
work" analogous to the work of a professor. Of course, our determina-
tion, set forth below, that the Act does not violate any right of academic
freedom possessed by university professors obviates the need to consider
whether such a right could extend beyond professors. We feel compelled
to note, however, the virtually limitless nature of Appellees' suggestion.
Research is, by its very nature, an "intellectual" pursuit. Thus, any state
employee who conducts work-related research on sexually explicit topics
on the Internet--i.e., any state employee covered by the Act--arguably
would possess a constitutional right of academic freedom. We have little
doubt that even the most vigorous proponent of an individual right of
academic freedom would not contend that the right extends so far.
9 Appellees assert that the Act infringes on academic freedom by hin-
dering professors' ability to perform their employment duties, particu-
larly teaching and research. The facts alleged in the complaint illustrate
the type of restrictions with which Appellees are primarily concerned.
Melvin I. Urofsky, the lead plaintiff in the district court, alleged that he
had declined to assign an online research project on indecency law
because he feared he would be unable to verify his students' work with-
out violating the Act. Appellee Terry L. Meyers contended that he is
affected by the Act because his ability to access Virginia's database to
research sexually explicit poetry in connection with his study of Victo-
rian poets is restricted by the policy. Appellee Paul Smith's website has
been censored as a result of the Act. And, appellees Dana Heller, Ber-
nard H. Levin, and Brian J. Delaney maintained that they were hesitant
to continue their Internet research of various aspects of human sexuality.
12
himself, without the input of the university (and perhaps even con-
trary to the university's desires), the subjects of his research, writing,
and teaching. Appellees maintain that by requiring professors to
obtain university approval before accessing sexually explicit materials
on the Internet in connection with their research, the Act infringes this
individual right of academic freedom. Our review of the law, how-
ever, leads us to conclude that to the extent the Constitution recog-
nizes any right of "academic freedom" above and beyond the First
Amendment rights to which every citizen is entitled, the right inheres
in the University, not in individual professors, and is not violated by
the terms of the Act.
"Academic freedom" is a term that is often used, but little
explained, by federal courts. See W. Stuart Stuller, High School Aca-
demic Freedom: The Evolution of a Fish Out of Water, 77 Neb. L.
Rev. 301, 302 (1998) ("[C]ourts are remarkably consistent in their
unwillingness to give analytical shape to the rhetoric of academic
freedom."); see also J. Peter Byrne, Academic Freedom: A "Special
Concern of the First Amendment", 99 Yale L.J. 251, 253 (1989)
("Lacking definition or guiding principle, the doctrine [of academic
freedom] floats in the law, picking up decisions as a hull does barna-
cles."). As a result, decisions invoking academic freedom are lacking
in consistency, see Stuller, supra, at 303, and courts invoke the doc-
trine in circumstances where it arguably has no application, see
Byrne, supra, at 262-64. Accordingly, we begin with a brief review
of the history of the concept of academic freedom in the United
States.
Prior to the late nineteenth century, institutions of higher education
in this country were not considered centers of research and scholar-
ship, but rather were viewed as a means of passing received wisdom
on to the next generation. See Richard Hofstadter & Walter P. Metz-
ger, The Development of Academic Freedom in the United States 278-
79 (1955); Stuller, supra, at 307-08. "Faculty performed essentially
fixed if learned operations within a traditional curriculum under the
sanction of established truth. . . . [A]cademic freedom as we know it
simply had no meaning." Byrne, supra, at 269. Additionally, Ameri-
can universities during this period were characterized by "legal con-
trol by non-academic trustees; effective governance by administrators
set apart from the faculty by political allegiance and professional ori-
13
entation; [and] dependent and insecure faculty." Id. at 268-69. This
began to change, however, as Americans who had studied at German
universities sought to remodel American universities in the German
image. See Walter P. Metzger, Profession and Constitution: Two Def-
initions of Academic Freedom in America, 66 Tex. L. Rev. 1265,
1269 (1988).
The German notion of academic freedom was composed primarily
of two concepts: Lehrfreiheit and Lernfreiheit. See generally Hof-
stadter & Metzger, supra, at 386-91 (discussing German understand-
ing of academic freedom). Lehrfreiheit, or freedom to teach,
embodied the notion that professors should be free to conduct
research and publish findings without fear of reproof from the church
or state; it further denoted the authority to determine the content of
courses and lectures. See id. at 386-87. Lernfreiheit was essentially a
corollary right of students to determine the course of their studies for
themselves. See id. at 386.
In 1915, a committee of the American Association of University
Professors (AAUP) issued a report on academic freedom that adapted
the concept of Lehrfreiheit to the American university. See generally
Metzger, supra, at 1267-85 (examining the factors influencing the
AAUP's definition of academic freedom). In large part, the AAUP
was concerned with obtaining for professors a measure of profes-
sional autonomy from lay administrators and trustees.10 See Byrne,
supra, at 273-78; Metzger, supra, at 1275-76. The AAUP defined
academic freedom as "a right claimed by the accredited educator, as
teacher and investigator, to interpret his findings and to communicate
his conclusions without being subjected to any interference, molesta-
tion, or penalization because the conclusions are unacceptable to
some constituted authority within or beyond the institution." Stuller,
supra, at 309 (internal quotation marks omitted).11 Significantly, the
_________________________________________________________________
10 The AAUP was not concerned with interference from the federal or
state governments, which at that time "largely refrained from any
involvement in internal university affairs." Byrne, supra, at 273; see
Metzger, supra, at 1277-79.
11 This freedom from lay interference, however, did not mean that aca-
demics were immune from the professional judgments of their peers. See
Byrne, supra, at 277-78.
14
AAUP conceived academic freedom as a professional norm, not a
legal one: The AAUP justified academic freedom on the basis of its
social utility as a means of advancing the search for truth, rather than
its status as a manifestation of First Amendment rights. See Hof-
stadter & Metzger, supra, at 398-400; Byrne, supra, at 277-78. The
principles adopted in the 1915 report were later codified in a 1940
Statement of Principles on Academic Freedom and Tenure promul-
gated by the AAUP and the Association of American Colleges. See
Richard H. Hiers, Academic Freedom in Public Colleges and Univer-
sities: O Say, Does that Star-Spangled First Amendment Banner Yet
Wave?, 40 Wayne L. Rev. 1, 4-5 (1993). The 1940 Statement since
"has been endorsed by every major higher education organization in
the nation," Byrne, supra, at 279, "through its adoption into bylaws,
faculty contracts, and collective bargaining agreements," Amy H.
Candido, Comment, A Right to Talk Dirty?: Academic Freedom Val-
ues and Sexual Harassment in the University Classroom, 4 U. Chi. L.
Sch. Roundtable 85, 86-87 (1996-97).12
Appellees' insistence that the Act violates their rights of academic
freedom amounts to a claim that the academic freedom of professors
_________________________________________________________________
12 In view of this history, we do not doubt that, as a matter of profes-
sional practice, university professors in fact possess the type of academic
freedom asserted by Appellees. Indeed, the claim of an academic institu-
tion to status as a "university" may fairly be said to depend upon the
extent to which its faculty members are allowed to pursue knowledge
free of external constraints. See Metzger, supra, at 1279 (explaining that
the authors of the 1915 AAUP report believed "that any academic institu-
tion that restrict[ed] the intellectual freedom of its professors . . . cease[d]
to be a true university"). Were it not so, advances in learning surely
would be hindered in a manner harmful to the university as an institution
and to society at large. However, Appellees fail to appreciate that the
wisdom of a given practice as a matter of policy does not give the prac-
tice constitutional status. See Minnesota State Bd. for Community Col-
leges v. Knight, 465 U.S. 271, 288 (1984) (concluding that "[f]aculty
involvement in academic governance has much to recommend it as a
matter of academic policy, but it finds no basis in the Constitution").
Additionally, we note that we are not here called upon to decide the
wisdom of the Act as a matter of policy. That an enactment may be
utterly unnecessary, or even profoundly unwise, does not affect its valid-
ity as a matter of constitutional law.
15
is not only a professional norm, but also a constitutional right.13 We
disagree. It is true, of course, that homage has been paid to the ideal
of academic freedom in a number of Supreme Court opinions, often
with reference to the First Amendment. See, e.g., Regents of the Univ.
of Mich. v. Ewing, 474 U.S. 214, 226 & n.12 (1985); Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265, 312-13 (1978) (opinion of Pow-
ell, J.); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967);
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opin-
ion); id. at 261-63 (Frankfurter, J., concurring in the result). Despite
these accolades, the Supreme Court has never set aside a state regula-
tion on the basis that it infringed a First Amendment right to academic
freedom. Cf. Minnesota State Bd. for Community Colleges v. Knight,
465 U.S. 271, 287 (1984) (stating that the Court has not recognized
a First Amendment right of faculty to participate in academic policy-
making).
Moreover, a close examination of the cases indicates that the right
praised by the Court is not the right Appellees seek to establish here.
Appellees ask us to recognize a First Amendment right of academic
freedom that belongs to the professor as an individual. The Supreme
Court, to the extent it has constitutionalized a right of academic free-
dom at all, appears to have recognized only an institutional right of
self-governance in academic affairs.
We begin our examination of the cases with Sweezy, in which
Appellees claim "[t]he Supreme Court first adopted the principle of
academic freedom." Brief of the Appellees at 21. Sweezy arose from
_________________________________________________________________
13 Irrespective of the validity of this claim as a matter of constitutional
law, we note that the argument raises the specter of a constitutional right
enjoyed by only a limited class of citizens. See David M. Rabban, Func-
tional Analysis of "Individual" and "Institutional" Academic Freedom
Under the First Amendment, 53 Law & Contemp. Probs. 227, 238
(1990). Indeed, the audacity of Appellees' claim is revealed by its poten-
tial impact in this litigation. If Appellees are correct that the First
Amendment provides special protection to academic speakers, then a
professor would be constitutionally entitled to conduct a research project
on sexual fetishes while a state-employed psychologist could constitu-
tionally be precluded from accessing the very same materials. Such a
result is manifestly at odds with a constitutional system premised on
equality.
16
an investigation of "subversive activities" by the New Hampshire
Attorney General. Paul Sweezy, a target of the investigation, refused
to answer certain questions regarding a guest lecture he had given at
the University of New Hampshire. His refusal to answer these and
other questions ultimately resulted in his incarceration for contempt.
On certiorari review of the decision of the New Hampshire Supreme
Court affirming the conviction, a plurality of four justices indicated
that the action of the state "unquestionably" infringed Sweezy's "lib-
erties in the areas of academic freedom and political expression."
Sweezy, 354 U.S. at 250.
The essentiality of freedom in the community of Ameri-
can universities is almost self-evident. No one should under-
estimate the vital role in a democracy that is played by those
who guide and train our youth. To impose any strait jacket
upon the intellectual leaders in our colleges and universities
would imperil the future of our Nation. No field of educa-
tion is so thoroughly comprehended by man that new dis-
coveries cannot yet be made. Particularly is that true in the
social sciences, where few, if any, principles are accepted as
absolutes. Scholarship cannot flourish in an atmosphere of
suspicion and distrust. Teachers and students must always
remain free to inquire, to study and to evaluate, to gain new
maturity and understanding; otherwise our civilization will
stagnate and die.
Id. This paean to academic freedom notwithstanding, the plurality did
not vacate Sweezy's contempt conviction on First Amendment
grounds, but rather concluded that because the Attorney General
lacked authority to investigate Sweezy, the conviction violated due
process. See id. at 254-55.
Justice Frankfurter, who along with Justice Harlan provided the
votes necessary to reverse, relied explicitly on academic freedom in
concluding that Sweezy's contempt conviction offended the Constitu-
tion. The right recognized by Justice Frankfurter, however, was not
the individual right claimed by Appellees, but rather an institutional
right belonging to the University of New Hampshire: "When weighed
against the grave harm resulting from governmental intrusion into the
intellectual life of a university, [the] justification for compelling a wit-
17
ness to discuss the contents of his lecture appears grossly inadequate."
Id. at 261 (Frankfurter, J., concurring in the result) (emphasis added).
Justice Frankfurter emphasized "the dependence of a free society on
free universities" and concluded by enumerating "the four essential
freedoms of a university--to determine for itself on academic
grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study." Id. at 262-63 (internal quotation
marks omitted). Significantly, at no point in his concurrence does Jus-
tice Frankfurter indicate that individual academic freedom rights had
been infringed; in his view, the constitutional harm fell entirely on the
university as an institution.14
In light of this review of the actual holding and rationale in Sweezy,
it is difficult to understand how that case can be viewed as clearly
"adopting" any academic freedom right, much less a right of the type
claimed by Appellees. At best, it can be said that six justices agreed
that the First Amendment protects values of academic freedom. How-
ever, the justices were plainly of very different minds as to the nature
of this "right." And, even if Sweezy could be read as creating an indi-
vidual First Amendment right of academic freedom, such a holding
would not advance Appellees' claim of a First Amendment right per-
taining to their work as scholars and teachers because Sweezy
involved only the right of an individual to speak in his capacity as a
private citizen. See id. at 249 (explaining that "[t]he sole basis for the
inquiry was to scrutinize [Sweezy] as a person," not as a teacher).
Several other cases decided at roughly the same time as Sweezy
involved restrictions on state employees' rights as private citizens to
speak and associate. See, e.g., Whitehill v. Elkins, 389 U.S. 54 (1967)
(loyalty oath required of publicly employed teachers); Shelton v.
Tucker, 364 U.S. 479 (1960) (affidavit listing organizational member-
_________________________________________________________________
14 Justice Frankfurter's reasoning, if controlling, would dictate that we
uphold the Act on the basis that it does not infringe the academic free-
dom of the university. As explained infra note 17, the Act places with
the university authority to approve or disapprove access to sexually
explicit materials on computers owned or leased by the state. Because the
Act does not subject university decisionmaking to outside interference by
the state, the Act would pass constitutional muster under Justice Frank-
furter's understanding of academic freedom.
18
ship required of teachers at state-funded educational institutions);
Wieman v. Updegraff, 344 U.S. 183 (1952) (loyalty oath required of
state employees). Although the Court discussed the infringement of
the state act on academic freedom in two of the cases, see Whitehill,
389 U.S. at 59-60; Shelton, 364 U.S. at 487, and all of the actions
were brought by teachers, in none of them did the Court base its hold-
ing on academic freedom, see Whitehill, 389 U.S. at 59-62 (striking
down provision on basis of overbreadth); Shelton, 364 U.S. at 490(same); Wieman, 344 U.S. at 190-92 (declaring statute unconstitu-
tional as violative of due process).
Even if Whitehill, Shelton, and Wieman could be said to have
established a constitutional right of academic freedom enjoyed by
publicly employed teachers, such a holding would be of little signifi-
cance in light of the historical context. As late as March 1952, mere
months before Wieman was decided, the Supreme Court had adhered
to the principle that public employment was a privilege, not a right,
and thus could be conditioned on restrictions on the exercise of con-
stitutional rights by individuals in their capacities as private citizens.
See Adler v. Board of Educ., 342 U.S. 485, 492 (1952) (rejecting
argument by public school teacher that statute and regulations dis-
qualifying from employment individuals who belonged to certain
organizations violated First Amendment rights). By 1956, however,
the Court had begun to back away from this position. See Slochower
v. Board of Higher Educ., 350 U.S. 551, 555, 558-59 (1956) (holding
that dismissal of professor, pursuant to statute that required termina-
tion of any public employee who invoked Fifth Amendment right
against self-incrimination to avoid a question related to official con-
duct, violated due process; observing that "[t]o state that a person
does not have a constitutional right to government employment is
only to say that he must comply with reasonable, lawful, and nondis-
criminatory terms laid down by the proper authorities"). And, by
1967, the Court had rejected it altogether. See Keyishian, 385 U.S. at
605-06; see also Elrod v. Burns, 427 U.S. 347, 358-59 (1976) (opin-
ion of Brennan, J.) ("Keyishian squarely held that political association
alone could not, consistently with the First Amendment, constitute an
adequate ground for denying public employment."). Indeed, it is now
beyond question that a public employer does not enjoy carte blanche
to sanction employees for the exercise of First Amendment rights. See
Rankin, 483 U.S. at 383-84. Therefore, to the extent that Whitehill,
19
Shelton, and Wieman may have held that a publicly employed teacher
may not be disciplined for the exercise of First Amendment rights as
a private citizen, that holding has been subsumed by later cases
extending the same protection to all public employees.
Other cases that have referred to a First Amendment right of aca-
demic freedom have done so generally in terms of the institution, not
the individual. For example, in Keyishian the Court considered a
renewed challenge to a New York statute and regulations, certain pro-
visions of which were upheld in Adler, designed "to prevent the
appointment or retention of `subversive' persons in state employ-
ment." Keyishian, 385 U.S. at 592. Keyishian, like the cases discussed
above, involved the right of a professor to speak and associate in his
capacity as a private citizen, and thus is not germane to Appellees'
claim. Moreover, in the course of reaching its conclusion that the pro-
visions were unconstitutionally vague, the Court discussed the detri-
mental impact of such laws on academic freedom, which the Court
characterized as "a special concern of the First Amendment." Id. at
603. The discussion by the Court indicates, however, that it was not
focusing on the individual rights of teachers, but rather on the impact
of the New York provisions on schools as institutions: The vice of the
New York provisions was that they impinged upon the freedom of the
university as an institution. See University of Pa. v. EEOC, 493 U.S.
182, 198 (1990) (noting that Keyishian was a case involving govern-
mental infringement on the right of an institution "to determine for
itself on academic grounds who may teach" (internal quotation marks
omitted)).
This emphasis on institutional rights is particularly evident in more
recent Supreme Court jurisprudence. For example, in Bakke Justice
Powell discussed academic freedom as it related to a program of
admissions quotas established by a medical school. Relying on Key-
ishian and on Justice Frankfurter's concurrence in Sweezy, Justice
Powell characterized academic freedom as "[t]he freedom of a univer-
sity to make its own judgments as to education." Bakke, 438 U.S. at
312 (opinion of Powell, J.). Similarly, in Ewing the Court described
academic freedom as a concern of the institution. See Ewing, 474 U.S.
at 226.
20
Significantly, the Court has never recognized that professors pos-
sess a First Amendment right of academic freedom to determine for
themselves the content of their courses and scholarship, despite
opportunities to do so. For example, in Epperson v. Arkansas, 393
U.S. 97 (1968), the Court considered a challenge to a state law that
prohibited the teaching of evolution. The Court repeated its admoni-
tion in Keyishian that "the First Amendment `does not tolerate laws
that cast a pall of orthodoxy over the classroom,'" Epperson, 393 U.S.
at 105 (quoting Keyishian, 385 U.S. at 603), but nevertheless declined
to invalidate the statute on the basis that it infringed the teacher's
right of academic freedom.15 Rather, the Court held that the provision
violated the Establishment Clause. See id. at 106-09. Almost twenty
years later, the opportunity to create an individual First Amendment
right of academic freedom again arose in Edwards v. Aguillard, 482
U.S. 578 (1987), another case involving limitations on public school
teachers' authority to teach evolution. In Edwards, a state statute
required that instruction on evolution be accompanied by teaching on
creation science. As in Epperson, the Court decided the case on
Establishment Clause grounds. See Edwards, 482 U.S. at 596-97. This
_________________________________________________________________
15 Interestingly, several concurring justices criticized the discussion of
academic freedom in the majority opinion. Justice Black rejected the dis-
cussion altogether:
I am . . . not ready to hold that a person hired to teach school
children takes with him into the classroom a constitutional right
to teach sociological, economic, political, or religious subjects
that the school's managers do not want discussed. . . . I question
whether it is absolutely certain, as the Court's opinion indicates,
that "academic freedom" permits a teacher to breach his contrac-
tual agreement to teach only the subjects designated by the
school authorities who hired him.
Id. at 113-14 (Black, J., concurring). Justice Harlan disassociated himself
from the discussion, which he found unnecessary and likely to lead to
confusion. See id. at 115 (Harlan, J., concurring). Justice Stewart, while
not using the term "academic freedom," attempted to limit the right dis-
cussed by the majority. See id. at 115-16 (Stewart, J., concurring in the
result) (noting that "[t]he States are most assuredly free to choose their
own curriculums for their own schools," but rejecting the notion that a
State could constitutionally punish a teacher for mentioning the existence
of a prohibited subject (internal quotation marks omitted)).
21
time, however, the Court did not even mention academic freedom as
a relevant consideration in holding the statute unconstitutional.16
Taking all of the cases together, the best that can be said for Appel-
lees' claim that the Constitution protects the academic freedom of an
individual professor is that teachers were the first public employees
to be afforded the now-universal protection against dismissal for the
exercise of First Amendment rights. Nothing in Supreme Court juris-
prudence suggests that the "right" claimed by Appellees extends any
further. Rather, since declaring that public employees, including
teachers, do not forfeit First Amendment rights upon accepting public
employment, the Court has focused its discussions of academic free-
dom solely on issues of institutional autonomy. We therefore con-
clude that because the Act does not infringe the constitutional rights
of public employees in general, it also does not violate the rights of
professors.17
IV.
We reject the conclusion of the district court that Va. Code Ann.
§§ 2.1-804 to -806, prohibiting state employees from accessing sexu-
ally explicit material on computers owned or leased by the state
except in conjunction with an agency-approved research project,
_________________________________________________________________
16 Justice Brennan's omission of academic freedom from his majority
opinion in Edwards is particularly noteworthy in light of his subsequent
dissent in Knight, in which he argued that university faculty possess a
constitutional right of academic freedom to participate in institutional
policymaking. See Knight, 465 U.S. at 295-300 (Brennan, J., dissenting).
Arguably, Justice Brennan believed that while faculty members were
constitutionally entitled to participate in curricular decisions, they did not
enjoy constitutional protection for rejecting the selected curriculum in
favor of their own.
17 In reaching this conclusion, we note that the Act places the authority
to approve or disapprove research projects with the agency, here the uni-
versity. Thus, the Act leaves decisions concerning subjects of faculty
research in the hands of the institution. And, while a denial of an applica-
tion under the Act based upon a refusal to approve a particular research
project might raise genuine questions--perhaps even constitutional ones
--concerning the extent of the authority of a university to control the
work of its faculty, such questions are not presented here.
22
infringes upon the First Amendment rights of state employees. We
further reject Appellees' contention that even if the Act is constitu-
tionally valid as to the majority of state employees, it is invalid to the
extent it infringes on the academic freedom rights of university faculty.18
Accordingly, we reverse the judgment of the district court.
REVERSED
LUTTIG, Circuit Judge, concurring:
I join in Judge Wilkins' fine opinion for the court. I agree that the
Commonwealth of Virginia may regulate its employees' access to
"bestiality, lewd exhibition of nudity, . . . sexual excitement, sexual
conduct or sadomasochistic abuse, . . . coprophilia, urophilia, or
fetishism," on the public's computers, in the public's offices, on the
public's time, and at the public's expense, without infringement on
any First Amendment right of those employees. The Supreme Court's
precedents would not countenance the contrary conclusion reached by
Judge Wilkinson and the dissent.
Judge Wilkinson reaches his conclusion, writing, as he understands
it, in support of academic freedom. Because of its analytical flaws and
the pyrrhic victory it offers the academy, however, I believe that the
true academic will understand that Judge Wilkinson's opinion ulti-
mately will be of little service to the real cause of academic freedom,
despite its superficial appeal. More importantly, however, as I explain
below, the true academic is actually in no need of such attempts at
support -- least of all from the federal judiciary.
From time to time, even within the confines of an Article III case
or controversy, jurists express their general and personal views on
_________________________________________________________________
18 Our conclusion that the Act does not infringe on protected speech is
dispositive of Appellees' claim that the Act is overbroad. See Boos v.
Barry, 485 U.S. 312, 331 (1988) (recognizing that a regulation that "does
not reach a substantial amount of constitutionally protected" speech can-
not be overbroad). Further, the Act is not unconstitutionally vague
because it gives a "person of ordinary intelligence a reasonable opportu-
nity to know what is prohibited." Grayned v. City of Rockford, 408 U.S.
104, 108 (1972).
23
subjects related (and, to be honest, often unrelated) to the particular
legal issues before them. It is best that we do so infrequently, and ide-
ally we would never do so, because such naturally gives rise to the
legitimate question whether, when we do write opinions only of law,
our personal views have influenced or even supplanted the dispas-
sionate, reasoned analysis that defines the Judiciary in our constitu-
tional scheme. At points, what Judge Wilkinson writes in his opinion
might fairly be understood as more in the nature of a general state-
ment of personal viewpoint because he comments on a range of mat-
ters legal and non-legal, including: the aggregate social impact of
"subjects touching our physical health, our mental well-being, our
economic prosperity, and ultimately our appreciation for the world
around us and the different heritages that have brought that world
about," post at 44; the asserted perniciousness of affirmative action
and college speech codes to our cultural progress, post at 48; the need
for intolerance of sexual harassment in every setting, post at 49-50;
the "exponential growth of freedom" for society in general that comes
with the "modern technological development" of the Internet, post at
49, 53; the importance of federalism in our system of governance,
post at 52 -- and even the imperative for judicial restraint. Post at 52-
53.
But he does also express the opinion on the issue that is before us,
that there is a First Amendment right of "academic freedom" and that
other public employees do not possess an analogous First Amendment
right to pursue matters that they believe are important to performance
of their public responsibilities. Because he writes separately and does
not join in either of the court's principal opinions, Judge Wilkinson's
is an opinion of significance to our court. Accordingly, even though
it be that of only a single judge, it is right that that analysis be sub-
jected to the rigors of conventional legal analysis. When subjected to
such analysis, I believe it is apparent that the conclusions he reaches
and the means by which he reaches those conclusions are analytically
indefensible.
First, it is unclear even in whom Judge Wilkinson would create his
new constitutional right. For example, from reading his opinion, one
cannot discern whether he is creating a right in professors generally,
in only university professors, in all academics, in all institutions of
learning, in only universities, in all public employees, in some of the
24
above, or in all of the above. All that is clear is that he is emphatic
that a new constitutional right must be created. If there were nothing
else, one might suppose from the fact that he discusses the impact
upon the academy purportedly only as "illustrative" of the Common-
wealth's statute on all public employees, see post at 42 ("I consider
the statute's application to academic inquiry as a useful illustration of
how the statute restricts material of public concern.") (emphasis
added)), that he would recognize for all public employees the same
constitutional right that he apparently would create for academics. At
the end of the day, however, his analysis and conclusion confirm that
indeed he would not recognize the same right in all public employees,
and that his new-found right is reserved for professors alone. He
begins his opinion with that conclusion: "By thus preserving the
structure of university self-governance, the statute withstands consti-
tutional scrutiny." Post at 41. He ends his opinion with this same con-
clusion: "Because the limited restrictions in this Act are administered
within the traditional structure of university governance, I do not
believe the Virginia statute contravenes the Constitution." Post at 53.
And his entire discussion focuses on the need for such a special right
for those in the academic community. Indeed, nonacademic public
employees are never mentioned by Judge Wilkinson, except in pass-
ing, and in ways that are substantively irrelevant. Judge Wilkinson
simply, and quite genuinely, believes that the academy has a special
contribution to make to society, beyond that that the ordinary citizen
is able to make, and that its "speech" should enjoy constitutional pro-
tection that other public employees' speech should not.
Second, at the same time that Judge Wilkinson fails to identify
even in whom he would vest the constitutional right that he would
create, he also never defines the First Amendment right that he so
unreservedly would recognize. As a court, we have before us a dis-
crete question of law as to whether the particular speech limited by
the statute we interpret is subject to the protection of the First Amend-
ment, and the majority addresses itself to that speech and only to that
speech, as a court should. Judge Wilkinson is certain that "the First
Amendment does not slumber while the state regulates" the speech in
question here, post at 41, that "the legislative scythe [has] cut[ ] a
broad swath through the field of public employee speech," post at 41,
that "some umbrella of protection" must be extended to public
employee speech, lest they be "caught in the rain," post at 43, and that
25
no "stream or tributary" of the "broad river of American speech
[should be] shut off," post at 55. However, he never actually identifies
the speech that he concludes is entitled to First Amendment protec-
tion.
Thus, he begins his opinion as if the speech that he concludes is
protected is the speech of "Internet access." Post at 41. One page
later, he states that the threshold inquiry in this case, rather, is
whether "the use of the Internet for academic research" relates to a
matter of public concern. Post at 41. Four pages after that, he suggests
something entirely different -- that the speech at issue, and the
speech that is addressed by the statute, is "academic inquiry," and
even "academic curiosity." Post at 44. Within the very same para-
graph, he says not that it is academic curiosity, but, instead, "research
in socially useful subjects such as medicine, biology, anatomy, psy-
chology, anthropology, law, economics, art history, literature, and
philosophy" that is the "matter of public concern." Id. In the next
paragraph after that, he says that it is the "content of academic fields"
which is at issue. Post at 44. And later in that same paragraph, he
implies that it is "Internet research" that is the relevant speech. Id.He vacillates between "use [of] the Internet to research and write"
and "research and writing" generally as the speech of public interest
in the very next paragraph. Post at 45. And he later suggests, in the
same paragraph in which he states that it is "a professor's research
projects" that is the First Amendment protected speech, post at 45,
that it actually is the "professor's work" that is the speech on a matter
of public concern, post at 45. And he recites in the very next sentence
that it is "the content of [professorial] Internet research" that is at
issue in this case, post at 46, only a page later, to observe that it is
"[s]peech in the social and physical sciences, the learned professions,
and the humanities" that is in the public interest, and this because it
is "central to our democratic discourse and social progress." Post at
47. Two pages later still, he says it is "academic speech" that is the
speech on a matter of public concern that he addresses. Post at 48. On
that same page, he says that it is the "informational resource" of the
Internet that is the relevant speech. Id. And, finally, Judge Wilkinson
tells us that it is "academic freedom," which he nowhere defines, that
is entitled to the protection of the First Amendment, a concept that
26
one must assume includes not only research and writing, but also
teaching. Post at 51.
The only speech that Judge Wilkinson does not explicitly identify
as relevant, and for reasons obvious, is the only speech that actually
is relevant for purposes of the case or controversy before us. That
"speech" is Internet access, on state computers and on state time, to
websites that offer displays of "bestiality, lewd exhibition of nudity,
. . . sexual excitement, sexual conduct or sadomasochistic abuse, . . .
coprophilia, urophilia, or fetishism." Va. Code Ann. § 2.1-804. And
the "academic research" in particular that is proffered to this court as
deserving of First Amendment protection by the professor plaintiffs,
and that must be, and is, accepted by Judge Wilkinson as an example
of the highest "matter of public concern," includes, as described by
the district court, "graphic images of a nude woman in chains, a nude
man with an erection, and a man and woman engaged in anal inter-
course," see Urofsky v. Allen, 995 F. Supp. 634, 639 (E.D. Va. 1998).
Or, as that research appears in the record before us, a close-up photo-
graph of a woman holding open her buttocks, so that her dilated anus
and genitals, pierced with multiple earrings, are visible, J.A. 182; a
photograph of a woman wearing a false penis and engaging in anal
intercourse with another individual of unidentifiable sex, J.A. 183; a
photograph of a naked man apparently hanging by his wrists from a
chain to which are attached numerous sexual paraphernalia, J.A. 170;
a photograph of a naked woman, spread-eagle, whose wrists and
ankles have been chained and extended, J.A. 179; a photograph of a
close-up of the erect genital of a man, J.A. 181; and a photograph of
a naked woman whose wrists have been padlocked together behind
her back, J.A. 178. Although he never addresses himself to this
speech, which is the speech at issue in the case, Judge Wilkinson says
that "[t]he content and context of the speech covered by this statute
leave no doubt that the law in question affects speech on matters of
public concern." Post at 42. I agree that the fact that university profes-
sors, with no apparent pedagogical reason therefor, are accessing
material like this at public taxpayers' expense, on public taxpayer
time, and with public taxpayer-purchased computers-- all under the
auspices of "academic research" -- is a matter of public concern, but
I believe that it is so for reasons quite different from Judge Wilkin-
son's.
27
Third, even if one takes Judge Wilkinson to hold that it is "aca-
demic freedom" or "academic research" that is entitled to "the ancient
safeguards of the First Amendment," post at 49, he does not even
attempt to support the existence of such a right in either the text of
the Constitution or Supreme Court precedents, or even through resort
to the history or traditions of our Nation. He simply asserts that there
is (and assumes that there must be) a First Amendment right in such
speech, however it is defined. And this, in the face of the substantial
Supreme Court and other precedent marshaled by Judge Wilkins to
the effect that there is no such right, and certainly no such individual
professorial right. Ante at 15-22. As Professor Rabban, on whom
Judge Wilkinson so heavily relies for a different point, has put it:
Fitting academic freedom within the rubric of the first
amendment is in many respects an extremely difficult chal-
lenge. The term "academic freedom," in obvious contrast to
"freedom of the press," is nowhere mentioned in the text of
the first amendment. It is inconceivable that those who
debated and ratified the first amendment thought about aca-
demic freedom.
David M. Rabban, Functional Analysis of "Individual" and "Institu-
tional" Academic Freedom Under the First Amendment, 53 Law &
Contemp. Probs. 227, 237 (1990). Thus, although Judge Wilkinson
trumpets judicial restraint when explaining (as to an issue that is not
before the court today) that courts must be reticent to review the deci-
sions of deans and other university administrators on whether to grant
research waivers under the statute at issue, post at 52 ("It is well-
established that federal courts have no business acting as surrogate
university deans."), his fanfare can hardly be heard over the clashing
from his own unabashed creation of new constitutional rights out of
whole cloth -- an unabashedness that forces his surrender of the high
ground that he has assumed in the debate over judicial activism. See,
e.g., Gibbs v. Babbitt, No. 99-1218, 2000 WL 726073, at *7 (4th Cir.
June 6, 2000) (Wilkinson, J.) ("The irony of disregarding limits on
ourselves in the course of enforcing limits upon others will assuredly
not be lost on those who look to courts to respect restraints imposed
by rules of law."); Friends of the Earth, Inc. v. Gaston Copper Recy-
cling Corp., 204 F.3d 149, 163 (4th Cir. 2000) (en banc) (Wilkinson,
J.) ("This case illustrates at heart the importance of judicial
28
restraint."); Johnson v. Collins Entertainment Co., Inc., 193 F.3d 710,
725-26 (4th Cir. 1999) (Wilkinson, J.) ("Legal constraints cannot
yield even to the noblest of intentions, for judicial visions of the
social good will differ from issue to issue and from judge to judge,
and will, if allowed to run unchecked, thwart the expression of the
democratic will.").
Fourth, when, in all but afterthought, Judge Wilkinson finally does
turn to the determinative Pickering balance, he ignores the critical
aspect of that analysis as set forth by the Supreme Court: the question
whether the plaintiffs are speaking in their roles as citizens or in their
roles as employees. In all three of its seminal cases on public
employee speech, the Supreme Court has placed heavy emphasis on
whether the speakers in question were acting in their roles as employ-
ees. In Pickering v. Board of Educ., 391 U.S. 563 (1968), a case in
which the Court extended protection to a teacher's letter to a newspa-
per concerning school budgeting, the court emphasized that "the fact
of employment [was] only tangentially and insubstantially involved in
the subject matter of the public communication made by a teacher,"
and that, for that reason, it was "necessary to regard the teacher as
the member of the general public he [sought] to be." Id. at 574. In
Connick v. Myers, 461 U.S. 138 (1983), which presented the question
whether a prosecutor could be fired for circulating a questionnaire in
her workplace, the Court made the importance of the employ-
ee/citizen distinction clear in its very holding sentence: "We hold only
that when a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of per-
sonal interest, absent the most unusual circumstances, a federal court
is not the appropriate forum in which to review the wisdom of a per-
sonnel decision. . . ." Id. at 147. (emphasis added). Finally, and ironi-
cally, United States v. National Treasury Employees Union, 513 U.S.
454 (1995), the authority relied on most extensively by Judge Wilkin-
son, provides perhaps the most powerful indictment of Judge Wilkin-
son's failure to address the employee/citizen distinction. There, in
striking down a law banning federal government employees from col-
lecting honoraria for speaking or writing, the Court emphasized that:
[The plaintiff-government employees] seek compensation
for their expressive activities in their capacity as citizens,
not as Government employees. They claim that their
29
employment status has no more bearing on the quality or
market value of their literary output than it did on that of
Hawthorne or Melville. With few exceptions, the content of
the [government employees'] messages has nothing to do
with their jobs and does not even arguably have any adverse
impact on the efficiency of the offices in which they work.
They do not address audiences composed of co-workers or
supervisors; instead, they write or speak for segments of the
general public. Neither the character of the authors, the sub-
ject matter of their expression, the effect of the content of
their expression on their official duties, nor the kind of audi-
ences they address has any relevance to their employment.
Id. at 465. (emphasis added). Thus, although the public con-
cern/personal interest distinction is no doubt of importance under
Connick, the citizen/employee distinction is, by force of these three
authorities, equally so, at the very least.
Judge Wilkinson never quotes or otherwise references any of these
key passages from Pickering, Connick, and NTEU. Indeed, in the only
passage in which Judge Wilkinson makes any reference to the funda-
mental distinction between the individual acting in his role as
employee and the individual acting in his role as citizen, he criticizes
our court and the Commonwealth for our over-emphasis on it. See
post at 42 ("[T]he majority . . . goes astray by placing exclusive
emphasis on the fact that the statute covers speech of `state employees
in their capacity as employees.'"); compare id. with Boring v. Bun-
combe County Bd. of Education, 136 F.3d 364, 375, 379 (Motz, J.,
dissenting) ("Conceivably, the majority's holding is grounded in mis-
reading Connick to make the role in which a public employee speaks
determinative of whether her speech merits First Amendment protec-
tion."). And, in effect to read the employee/citizen distinction out of
Pickering and its successors altogether, Judge Wilkinson eventually
completely merges the employee/citizen analysis into the public con-
cern/private analysis, criticizing the Commonwealth for "begin[ning]
and end[ing] the public concern inquiry with the signature on the
plaintiffs' paychecks or the serial number on their computers." Post
at 46. Thus, by the time he is through, although seemingly without
even realizing that he has done so, Judge Wilkinson has purged alto-
gether from Connick and Pickering the public employee/private citi-
30
zen analysis that he himself has consistently held is critical. See, e.g.,
Robinson v. Balog, 160 F.3d 183, 189 (4th Cir. 1998) (Wilkinson, J.)
("By Responding to the Board's invitation to testify at a public hear-
ing and by cooperating with law enforcement investigators, Robinson
and Marc spoke not in their `capacity as . . . public employee[s],'
DiMeglio, 45 F.3d at 805, but as `citizen[s] upon matters of public
concern.' Connick, 461 U.S. at 147, 103 S. Ct. 1684.").
It is unsurprising that Judge Wilkinson would avoid the question
whether the plaintiffs here are speaking in their roles as public
employees or in their roles as private citizens, because in the answer
to that question lies the refutation of the constitutional right that Judge
Wilkinson concludes exists. For, when university professors conduct
university research on university time, on university computers, and
in conduct of their university duties, it is indisputable that they are
performing in their role as public employees of the university, even
though Judge Wilkinson is unwilling to accept as much. See post at
45 ("[I]n their research and writing university professors are not state
mouthpieces -- they speak mainly for themselves."). They are as dif-
ferent as can be imagined from the teacher who wrote to the newspa-
per in Pickering, the prosecutor who circulated the questionnaire in
Connick, or the federal government employees who gave speeches
and wrote articles for the general public in NTEU. The professors'
research is conducted on computers and via Internet access services
that are both paid for by the public; thus, the professors' research is
itself paid for by the people of the Commonwealth of Virginia.
Indeed, the professors are paid to conduct the research that they do.
The professors' research thus belongs to the public (at least in the
only sense that matters here). In a word, when conducting their
research so that they may better discharge their professorial responsi-
bilities to the public, these professors are speaking qua public
employees, not qua private citizens. I cannot imagine that anyone
would contend otherwise. Certainly, the professors before us are not
so brazen as to do so.
Fifth, with respect to those portions of the Pickering analysis to
which Judge Wilkinson does address himself, not only does he iden-
tify incorrectly the employee speech to be balanced, he incorrectly
identifies the corresponding state interest that would be balanced were
31
he correct that that employee speech was the relevant speech under
Pickering.
Thus, consistent with his exclusive focus on academic speech in
the first half of his opinion in which he identifies the employee speech
at issue -- which focus he said at that point was "illustrative" only,
see post at 42 -- he identifies as the entirety of the relevant employee
speech for purposes of his Pickering balance the academic speech dis-
cussed in the first half of his opinion. (At this point in his opinion,
Judge Wilkinson is unwilling to assert that this speech relates to a
matter of public concern; rather, he says only that it "potentially
touches on" such matters. Post at 50.). If one chooses to balance only
the academic employees' interests, as does Judge Wilkinson, then one
must balance against that interest only the governmental interest in
regulation of that academic speech, not the government's interest in
regulation of that same kind of speech by all of the state's public
employees, as does Judge Wilkinson. And the only principled conclu-
sion that one can reach upon thus properly balancing the correct
interests is that the Commonwealth's statute cannot stand -- a conse-
quence that Judge Wilkinson (even at the cost of analytical incredibil-
ity) is unwilling to accept. For, if the academic employees' First
Amendment interests are as profound as Judge Wilkinson believes
them to be, then the government's interest in regulating the university
professors' private access to the prohibited materials for individual
research purposes pales by comparison.
That is, it is unquestionable not only that academic research in gen-
eral is of utmost importance, but also that there could well be legiti-
mate research that would entail, if not necessitate, access to the very
kinds of material to which access is prohibited by the Common-
wealth's statute. And it is also unquestionable that an individual pro-
fessor's private access to such materials in the sanctity of his own
office would have little, if any, disruptive effect on the workplace at
all. Indeed, I cannot imagine a governmental interest either specific
to university professors or equally applicable to them as to any other
public employee that would override those academic freedom inter-
ests. And, obviously, neither can Judge Wilkinson, despite his affir-
mance of the Commonwealth's statute on the very ground that the
state's interest in the avoidance of workplace disruption surpasses the
professors' First Amendment right to research the matters proscribed
32
by the statute. Not only does he identify none at all; he does not even
attempt to do so. In fact, the state's interest in avoidance of workplace
disruption, that Judge Wilkinson balances against the professors'
interest in "academic freedom" is wholly unattributable to the profes-
sor plaintiffs. See post at 49 ("The posting of such material on web
sites in state offices has led to workplace disruption and complaints
that such sexually graphic matter contributes to a hostile work envi-
ronment.").
In other words, if one really believed that there is an actual consti-
tutional right to academic freedom and that it is a right of the impor-
tance believed by Judge Wilkinson, then he would unhesitatingly
invalidate the Commonwealth's statute as urged by the professor
plaintiffs (at least as applied to them) -- not sustain it and dismiss the
plaintiffs' research as "abuse" and "misconduct," as does Judge Wil-
kinson, post at 49-50 -- because the state's interest in limiting indi-
vidual professor access to the proscribed material within the privacy
of the professor's own office is, and obviously so, comparatively
insignificant to the professor's interest in academic freedom. It
is for this reason that Judge Wilkinson's seemingly bold recognition
of a constitutional right in the university professors is but a pyrrhic
victory (indeed, as it is indirectly for all public employees), because
it is a right that must yield to the subjective and uninformed views of
the federal judiciary, and even beyond that, to the most negligible of
governmental interests.
Of course, it is not academic speech alone that must be balanced
under Pickering, contrary to Judge Wilkinson's belief. It is the speech
of all public employees who would engage in "research" that must be
balanced against the state's interest in the regulation of this particular
speech by all of its employees. The consequence of this proper bal-
ancing, however, is that one is unable to recognize a special First
Amendment right in academics over all other public employees -- a
consequence that Judge Wilkinson likewise is unwilling (also at the
cost of analytical incredibility) to accept.
Sixth, and most tellingly, in his understandable haste to express
disapproval of the material to which access has been denied by the
Commonwealth, Judge Wilkinson actually does not perform any bal-
ancing at all -- none at all. The total of his reasoning on the Pickering
33
balance is that the Commonwealth's revised statute "restricts a more
limited range of material" than its predecessor statute, post at 51 --
which of course is to say nothing as to the relative weight of the
respective employee and governmental interests. Given the complete
absence of any attempt at the Supreme Court-required balancing of
interests under Pickering, the only reasonable conclusion that can be
drawn is that, at least by this point in his opinion, Judge Wilkinson
knows well that the result of that balancing would be precisely oppo-
site that which he wishes to reach. That balancing would yield
either the validation of the Com-
monwealth's statute as to all employees of the State, not just the
State's academic employees, or the invalidation of the statute as to all
of the State's employees, academic and non-academic alike.
Judge Wilkinson believes that he has undertaken the substantive
equivalent of the required balancing of interests in reaching his con-
clusion that the state's interests outweigh those of the relevant public
employees, because he goes on to consider that the statutory waiver
power resides in the university itself and thus that the intrusion on the
public employees' speech interests is "minimal." Post at 51. Of
course, in neither substance nor form is this the equivalent of the
Pickering balance.
However, even if one views the waiver provision as a free-floating
savings provision somehow related to the required Pickering balance,
as Judge Wilkinson mistakenly does, then that provision should not
have the constitutional effect that Judge Wilkinson concludes it has.
If one believes, as does he, that the constitutional right of "academic
freedom" belongs to the individual university professor, then the fact
that the state government, acting through the university's administra-
tion, holds the power of censorship cannot possibly be viewed as a
feature that saves the statute from unconstitutionality. It may be that,
if put to the choice, every professor would rather have the power of
censorship rest with their academic colleagues than with the state's
elected officials. However, no professor would believe that his right
of academic freedom is safeguarded merely because it can be denied
only by his politically-accountable university administrators, as this
litigation -- brought by professors notwithstanding the state's confer-
ral of the waiver authority upon the university-- proves. In fact, as
one of the professors on whom Judge Wilkinson relies extensively
explained in the article on which Judge Wilkinson relies, the seminal
34
academic definition of "academic freedom" was itself derived in
response to "threats to professors from university trustees." David M.
Rabban, Functional Analysis of "Individual" and "Institutional" Aca-
demic Freedom Under the First Amendment, 53 Law & Contemp.
Probs. 227, 229 (1990) ("Threats to professors from university trust-
ees loomed behind the seminal professional definition [of academic
freedom] produced in 1915 by a committee of eminent professors for
the first annual meeting of the American Association of University
Professors ("AAUP").").
But, even more fundamentally, the university does not exercise the
waiver authority with respect to the vast number of public employees
as to whom the Commonwealth's statute also applies, a fact that is
ignored by Judge Wilkinson. Compare post 51 (observing that
"[u]nder the Act, the ultimate judgment on whether a requested
waiver is for a bona fide research project resides in the system of uni-
versity governance") with id. (noting in next sentence that "[t]he stat-
ute grants `agency heads' the authority to approve these waivers").
The waiver provision may, in Judge Wilkinson's view, save the Com-
monwealth's statute from constitutional infirmity when the statute is
applied against the university professor, because it represents the
repository of the critical authority of self-governance in the institution
itself, rather than in the state. See id. But one may be assured that
Judge Wilkinson would not so view the waiver provision when the
statute is applied instead against the ordinary public servant, who is
"left in the rain" by Judge Wilkinson. For the ordinary public servant,
to confer the waiver authority in the relevant state department head
would be, in Judge Wilkinson's words, to consign that employee's
speech to "a First Amendment netherworld." See post at 48.
Finally, Judge Wilkinson's opinion in concurrence today is, it
should come as no surprise, irreconcilable with our own Circuit's pre-
cedent in Boring v. Buncombe County Bd. of Education, 136 F.3d 364(4th Cir. 1998), an opinion in which he joined at the time. In Boring,
we held unequivocally, against a First Amendment challenge indistin-
guishable from that here, that a high school teacher does not have a
First Amendment right in the secondary school's curriculum itself.
Judge Wilkinson, understanding the incompatibility of his position in
Boring with the position he takes today, distinguishes Boring on the
ground that, unlike curriculum choices, a professor's research and
35
writing does not bear the imprimatur of government. See post at 45.
Boring, of course, did not rest upon any such notion of official impri-
matur. It rested, instead, as we said, solely on the firm belief that the
teacher possessed no First Amendment right in the curriculum itself;
that this was the rationale for our decision is as clear from Judge
Motz's dissent as it is from the text of the majority opinion. To
attempt to distinguish Boring on the ground of official imprimatur is
to betray at once not only disagreement with the essential holding of
that case, but fundamental agreement with the dissent in that case.
Compare post at 42 (Judge Wilkinson asserting that the "`content of
the speech [here] surely touches on matters of political and social
importance" with Boring, 136 F.3d 375, 378 (Motz, J., dissenting)
("Although Boring's in-class speech does not itself constitute pure
public debate, obviously it does `relate to' matters of overwhelming
public concern . . . ."); see also id. at 379. If research and writing is
"a matter of public concern" within the intendment of Connick and
Pickering, as Judge Wilkinson believes it is, then surely far more "a
matter of public concern" is the curriculum of our elementary and sec-
ondary schools, and consequently far clearer is the elementary and
secondary school teachers' First Amendment right to participate in, if
not direct entirely, the curriculum of our young.1
The factual assertion on the basis of which Judge Wilkinson would
distinguish Boring is itself revealing of the doctrinal conundrum in
which he finds himself vis-a-vis Boring. For his needed distinction of
Boring, Judge Wilkinson asserts that, when professors research and
write, "they speak mainly for themselves," post at 45, a declaration
in support of which he can cite but a lone academic article from Law
& Contemporary Problems, see id. (citing David M. Rabban, Func-
tional Analysis of "Individual" and "Institutional" Academic Freedom
_________________________________________________________________
1 Elsewhere in his concurrence, when the need is different, Judge Wil-
kinson presents Boring as a decision chiefly premised not on official
imprimatur, but, rather, on the necessity of institutional governance. Post
at 51-52; see discussion supra. Boring was no more about institutional
governance than it was about official imprimatur. There is not even a
hint in our opinion in Boring that we would have viewed a state statute
forbidding the teaching of lesbianism any differently than we viewed the
high school's forbiddance -- nor, given our reasoning, would one ever
expect to find such a suggestion in the opinion.
36
Under the First Amendment, 53 Law & Contemp. Probs. 227, 242-
244 (1990)). If it is the case that the public university's professors
operate independently of state supervision and public accountability,
then it is a surprise to me. And I am confident that it would come as
a surprise to the public, who pays the professors' salaries in order that
they may conduct important research for the public and without
whose tax money the professors' research and writing would not be
possible.
I do not chronicle these analytic flaws in Judge Wilkinson's analy-
sis for the sake of chronicling. Collectively, each building upon the
other, these errors disguise, I believe even from Judge Wilkinson, the
uncomfortably counter-precedential and counter-intuitive conclusions
that he can, as a result, reach seemingly quite comfortably. If one
does not identify in whom a particular right would be created, then
he need never confront the consequences of the principled extension
of the same right to the similarly situated. If one does not identify the
actual right that is created, then he is never obliged to reconcile the
creation of that right with the precedent extant. If one ignores the crit-
ical step of the established analysis, then he has preordained his con-
clusion. If one places a thumb on the scale of the determinative
balance, then the resulting measure will be the foreseeable conse-
quence of that weighted balance. And if one conducts no balancing
at all, then the measure will be that which he, and he alone, tells us
it is.
The true academic should find small comfort in such a defense of
his academic freedom.
In reality, however, the true academic is in no need of defense. The
court holds today, as has been uniformly recognized by the Supreme
Court through the years, only that there is no constitutional right of
free inquiry unique to professors or to any other public employee, that
the First Amendment protects the rights of all public employees
equally. Neither the value nor the contributions of academic inquiry
to society are denigrated by such a holding. And to believe otherwise
is to subscribe to the fashionable belief that all that is treasured must
be in the Constitution and that if it is not in the Constitution then it
is not treasured. But precisely because it is a constitution that we
interpret, not all that we treasure is in the Constitution. Academic
37
freedom is paradigmatic of this truism. Academic freedom, however,
is also paradigmatic of the truism that not all that we treasure is in
need of constitutionalization. No university worthy of the name would
ever attempt to suppress true academic freedom -- constrained or
unconstrained by a constitution. And, if it did, not only would it find
itself without its faculty; it would find itself without the public sup-
port necessary for its very existence. The Supreme Court has recog-
nized as much -- be it through wisdom, prescience, or simple duty
to the Constitution -- for over two hundred years now. It has recog-
nized that, in the end, the academic can be no less accountable to the
people than any other public servant. His speech is subject to the lim-
itations of the First Amendment certainly no more, but just as cer-
tainly no less, than is the custodian's. That we should all be
accountable to the people, and accountable equally, should cause
none of us to bridle.
38
Volume 2 of 2
39
HAMILTON, Senior Circuit Judge, concurring:
The Appellees claim that they have a First Amendment right to
access and disseminate sexually explicit materials on computers that
are owned or leased by the Commonwealth. The Appellees' access to,
and dissemination of, sexually explicit materials is necessary for them
to perform their duties as educators; but, nevertheless, the Appellees'
access to, and dissemination of, sexually explicit materials is accom-
plished in their capacities as state employees. Because the Appellees'
access to, and dissemination of, sexually explicit materials is accom-
plished in their capacities as state employees, the court today cor-
rectly concludes under the implicit holding of our en banc decision
in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th
Cir.) (en banc), cert. denied, 119 S. Ct. 47 (1998), that the speech in
this case is employee speech, and, therefore, not entitled to First
Amendment protection. Furthermore, the court correctly rejects the
Appellees' contention that even if the Act is constitutionally valid as
to the majority of state employees, it is invalid to the extent it
infringes on the academic freedom rights of university faculty.
I joined Judge Motz's dissent in Boring which persuasively
explains why a public employee should enjoy far greater First
Amendment protection than that contemplated by Boring. See id. at
378-80. Left to my own devices, I would hold that the Appellees'
speech in this case is entitled to some measure of First Amendment
protection, thus triggering application of the Connick/Pickering bal-
ancing test. However, being bound by the en banc court's decision in
Boring, a decision the en banc court chose not to revisit in the present
case, I concur in the court's majority opinion.
Finally, I write separately to make clear that we leave unanswered
the question of whether a governmental employee who seeks to
access and disseminate sexually explicit materials rising to the level
of matters of public concern, not in his or her role as a governmental
employee, but rather as a private citizen, is entitled to some measure
of First Amendment protection. The facts of this case leave that issue
for another day.
WILKINSON, Chief Judge, concurring in the judgment:
I agree with the majority that the Virginia Act is constitutional.
Unlike the majority, I believe that this statute restricts matters of pub-
40
lic concern, especially in the context of academic inquiry. The state,
however, has a legitimate interest in preventing its employees from
accessing on state-owned computers sexually explicit material unre-
lated to their work. Here the Commonwealth has promoted this legiti-
mate interest through minimally intrusive means, i.e., by permitting
university officials to grant waivers for all bona fide research projects.
By thus preserving the structure of university self-governance, the
statute withstands constitutional scrutiny.
I write separately because the majority accords the speech and
research of state employees, including those in universities, no First
Amendment protection whatsoever. While the statute may ultimately
be constitutional, the First Amendment does not slumber while the
state regulates speech on matters of vital public importance.
I.
Although the restrictions on Internet access in this statute may
appear to pose a novel question, I agree with the majority that it is
amenable to traditional analysis through the framework for public
employee speech established in Pickering v. Board of Educ., 391 U.S.
563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). But because
the statute at issue regulates a broad range of speech, its widespread
impact "gives rise to far more serious concerns than could any single
supervisory decision." United States v. National Treasury Employees
Union, 513 U.S. 454, 468 (1995) ("NTEU "). Moreover, the Act's
restriction constitutes a prior restraint because it chills Internet
research before it happens. Cf. Near v. Minnesota ex rel. Olson, 283
U.S. 697 (1931). Unlike Pickering and its progeny, the statute does
not "involve a post hoc analysis of one employee's speech and its
impact on that employee's public responsibilities." NTEU, 513 U.S.
at 467. Rather, this statute involves a "wholesale deterrent to a broad
category of expression by a massive number of potential speakers."
Id. When the legislative scythe cuts such a broad swath through the
field of public employee speech, Pickering and NTEU require us to
carefully consider the First Amendment interests at stake.
The threshold inquiry in this case is whether the use of the Internet
for academic research relates to a matter of "public concern." Conn-
ick, 461 U.S. at 147; Robinson v. Balog, 160 F.3d 183, 187-89 (4th
41
Cir. 1998); DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir. 1995). To
make this determination Connick requires that we closely examine the
"content, form, and context" of the speech at issue. 461 U.S. at 147-
48.
While the majority undertakes this same inquiry, it goes astray by
placing exclusive emphasis on the fact that the statute covers speech
of "state employees in their capacity as employees." Whether speech
is undertaken as a citizen or public employee is certainly relevant to
the analysis. However, it is not the only inquiry. By making it the dis-
positive criterion, the majority rests its conclusions solely on the
"form" of the speech. The public concern inquiry, however, does not
cease with form. The majority fails to examine the "content" of the
speech, which surely touches on matters of political and social impor-
tance. It also fails to examine the "context" of the speech, which can
occur in a variety of settings, including the public university. As this
case was brought by public university professors, I consider the stat-
ute's application to academic inquiry as a useful illustration of how
the statute restricts material of public concern.1 The content and con-
text of the speech covered by this statute leave no doubt that the law
in question affects speech on matters of public concern.
To take the matter of content first, if the speech at issue were pri-
marily of personal workplace interest to the plaintiffs, it is clear that
no First Amendment significance would attach to it. Public employee
speech is not entitled to protection if it is of "purely personal concern
to the employee -- most typically, a private personnel grievance."
Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir. 1985) (internal quota-
tion marks omitted). For instance, in Connick, Assistant District
Attorney Sheila Myers was informed that she would be transferred.
461 U.S. at 140. She protested the transfer and distributed a question-
naire soliciting the views of her colleagues. She was then terminated
because of her refusal to accept the transfer and her insubordination
_________________________________________________________________
1 Appellees here are public university professors who raised both facial
and as-applied challenges to the statute. To prevail on their facial chal-
lenge, plaintiffs "must establish that no set of circumstances exists under
which the Act would be valid." Rust v. Sullivan, 500 U.S. 173, 183
(1991) (internal quotation marks omitted). By finding the statute valid as
applied to these plaintiffs, the facial challenge fails as well.
42
in distributing the questionnaire. See id. at 141. The Supreme Court
held that with but one exception the questions Myers asked did not
touch on matters of public concern because they were nothing more
than "mere extensions of Myers' dispute over her transfer." Id. at 148.
Similarly, in Terrell v. University of Texas System Police, the Fifth
Circuit found that a police captain's diary that was critical of a super-
visor did not constitute speech on a matter of public concern. 792
F.2d 1360, 1362-63 (5th Cir. 1986). And in Holland v. Rimmer, we
found that internal employee discipline by a director of a county
agency was not speech on a matter of public concern. 25 F.3d 1251,
1255-56 (4th Cir. 1994). All of these cases involved speech that
related to personal workplace disputes and did not involve "any mat-
ter of political, social, or other concern to the community." Connick,
461 U.S. at 146.
By contrast, speech found to be of public concern covers an array
of subjects stretching beyond the narrow confines of personal work-
place disputes. Courts have focused upon "whether the `public' or the
`community' is likely to be truly concerned with or interested in the
particular expression." Berger, 779 F.2d at 999; see also Pickering,
391 U.S. at 573 (emphasizing the "public interest in having free and
unhindered debate on matters of public importance"). For example, in
Pickering, a school teacher was dismissed for sending to a newspaper
a letter that was critical of the Board of Education for the way it han-
dled past proposals to raise new revenue for schools. 391 U.S. at 564.
The Court held that the letter touched on matters of "legitimate public
concern" because on such questions of school funding "free and open
debate is vital to informed decision-making by the electorate." Id. at
571-72. In NTEU, two unions and several career civil servants chal-
lenged a statute that forbade federal employees from accepting hono-
raria. 513 U.S. at 461. The employees received compensation for
speaking and writing on a variety of topics -- a mail handler lectured
on the Quaker religion, an aerospace engineer lectured on black his-
tory, and a microbiologist reviewed dance performances. See id. The
Court found that these expressive activities "fall within the protected
category of citizen comment on matters of public concern rather than
employee comment on matters related to personal status in the work-
place." Id. at 466. The First Amendment thus affords public employee
speech some umbrella of protection -- those, however, with purely
personal workplace disputes will get caught in the rain.
43
The statute at issue here addresses speech that is quite unrelated to
personal grievances about the workplace. The content of academic
inquiry involves matters of political and social concern because "aca-
demic freedom is of transcendent value to all of us and not merely to
the teachers concerned." Keyishian v. Board of Regents, 385 U.S.
589, 603 (1967). Academic inquiry is necessary to informed political
debate. Academic curiosity is critical to useful social discoveries. One
cannot possibly contend that research in socially useful subjects such
as medicine, biology, anatomy, psychology, anthropology, law, eco-
nomics, art history, literature, and philosophy is not a matter of public
concern. The content of this research does not involve a professor's
wages or working conditions. Rather it concerns an aggregate of sub-
jects with broad social impact -- subjects touching our physical
health, our mental well-being, our economic prosperity, and ulti-
mately our appreciation for the world around us and the different heri-
tages that have brought that world about.2 The right to academic
inquiry into such subjects cannot be divorced from access to one
means (the Internet) by which that inquiry is carried out. By restrict-
ing Internet access, a state thus restricts academic inquiry at what may
become its single most fruitful source.
Not only does the content of these academic fields support the con-
clusion that these are matters of public concern, the context of the
affected speech is unique. In the university setting "the State acts
against a background and tradition of thought and experiment that is
at the center of our intellectual and philosophic tradition." Rosenber-
ger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 835 (1995).
Internet research, novel though it be, lies at the core of that tradition.
These plaintiffs are state employees, it is true. But these particular
employees are hired for the very purpose of inquiring into, reflecting
upon, and speaking out on matters of public concern. A faculty is
employed professionally to test ideas and to propose solutions, to
deepen knowledge and refresh perspectives. See William W. Van Als-
_________________________________________________________________
2 As such, a statute of general applicability differs from individual dis-
putes over hiring, tenure, and promotion, which courts have routinely
regarded as matters of personal workplace rather than public concern.
See, e.g., Lovelace v. Southeastern Mass. Univ., 793 F.2d 419, 425-26
(1st Cir. 1986); Megill v. Board of Regents of the State of Fla., 541 F.2d
1073, 1085 (5th Cir. 1976).
44
tyne, Academic Freedom and the First Amendment in the Supreme
Court of the United States: An Unhurried Historical Review, 53 Law
& Contemp. Probs. 79, 87 (1990). Provocative comment is endemic
to the work of a university faculty whose "function is primarily one
of critical review." Id.Furthermore, state university professors work in the context of con-
siderable academic independence. The statute limits professors' abil-
ity to use the Internet to research and to write. But in their research
and writing university professors are not state mouthpieces -- they
speak mainly for themselves. See generally David M. Rabban, Func-
tional Analysis of "Individual" and "Institutional" Academic Freedom
Under the First Amendment, 53 Law & Contemp. Probs. 227, 242-44
(1990). It is not enough to declare, as the majority does, "The speech
at issue here . . . is clearly made in the employee's role as employee."
Ante at 11. No one assumes when reading a professor's work that it
bears the imprimatur of the government or that it carries the approval
of his or her academic institution. University research and writing
thus differ fundamentally from secondary school curriculum selec-
tion, in which we have held that the desires of the individual teacher
must give way to local school board policies. See Boring v. Buncombe
County Bd. of Educ., 136 F.3d 364, 370-71 (4th Cir. 1998) (en banc).3
Curricular choices uniquely can be perceived by"students, parents,
and members of the public . . . to bear the imprimatur of the school."
Id. at 368 (internal quotation marks omitted).4 The interest of the state
in a professor's research projects is simply not as all-encompassing.
_________________________________________________________________
3 It should go without saying that I adhere to my vote and views in Bor-
ing v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.
1998) (en banc), see also id. at 371-72 (Wilkinson, C.J., concurring). The
distinctions between that case and this one, however, are numerous. Bor-
ing involved an individual employment decision pertaining to curriculum
at the secondary school level. By contrast, this case involves a broadly
applicable statute unrelated to curriculum at the level of higher educa-
tion. To find that the statute in this case impacts non-curricular speech
in colleges and universities and that such speech is a matter of public
concern in no way weakens the Boring holding.
4 In his concurring opinion, my brother Luttig thus wrongly asserts that
"Boring, of course, did not rest upon any such notion of official imprima-
tur." Ante at 36. Indeed, courts dealing with the question of First Amend-
45
The Commonwealth has nonetheless insisted that professors have
no First Amendment interest in the content of their Internet research.
It rests this breathtaking assertion on two props: that the professors
are state employees, and that the computers are state-owned. See
Appellant's Br. at 12 ("The speech at issue here is speech by state
employees in the performance of their governmental duties. This is
not citizen speech; it is government speech."); id. ("[T]he Act governs
such speech only insofar as state employees seek to use state comput-
ers. This is a legitimate exercise of control by government over its
own property . . . .").
Put simply, Connick does not support the Commonwealth's leap.
To begin and end the public concern inquiry with the signature on
plaintiffs' paychecks or the serial number on their computers would
be to permit all manner of content- and viewpoint-based restrictions
on speech and research conducted in our universities. The Common-
wealth acknowledges as much. See Appellant's Reply Br. at 14.
("`[G]overnment-as-speaker' as well as `government-as-buyer' may
constitutionally engage in content and viewpoint discrimination."). It
cannot be true, however, that on university campuses the First
Amendment places no limits on the Commonwealth's proprietary pre-
rogative -- a prerogative that it claims here in sweeping terms. See
id. at 29 ("[T]he Internet remains as free as the open sea and anyone
who wishes may sail there; but the Commonwealth's boats are the
Commonwealth's business, and no one can take them out without the
Commonwealth's permission."). Under this view, if the Common-
wealth were to declare that certain politically sensitive subjects could
not be researched on state computers by state employees holding
politically objectionable views, the statutory restriction must be
upheld.
_________________________________________________________________
ment rights concerning curriculum choices have limited their holdings to
curriculum matters in light of the distinctly institutional character of cur-
riculum decisions: "[A] public university professor does not have a First
Amendment right to decide what will be taught in the classroom."
Edwards v. California Univ. of Pa., 156 F.3d 488, 491 (3d Cir. 1998).
"Although the concept of academic freedom has been recognized in our
jurisprudence, the doctrine has never conferred upon teachers the control
of public school curricula." Kirkland v. Northside Indep. Sch. Dist., 890
F.2d 794, 800 (5th Cir. 1989).
46
By embracing the Commonwealth's view that all work-related
speech by public employees is beyond public concern, the majority
sanctions state legislative interference in public universities without
limit. The majority's position would plainly allow the prohibition of
speech on matters of public concern.5 The worry over undue intrusion
is not mere tilting at windmills -- the Commonwealth's original
Internet access restrictions were stunning in their scope. For example,
the Act originally barred access to all materials having "sexually
explicit content" without regard to whether the depiction was "lascivi-
ous" or whether it constituted the material's "dominant theme." Com-
pare Va. Code Ann. § 2.1-804 (Michie Supp. 1998), with Va. Code
Ann. § 2.1-804 (Michie Supp. 1999). As the panel opinion noted, this
restriction swept within its ambit "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; and the
routine exchange of information among social workers on sexual
assault and child abuse." Urofsky v. Gilmore , 167 F.3d 191, 195 n.6
(4th Cir. 1999). These are areas of more than mere personal interest.
Speech in the social and physical sciences, the learned professions,
and the humanities is central to our democratic discourse and social
progress.
The majority's reasoning could also be used to uphold statutes that
otherwise would fall for overbreadth and vagueness. A prime example
is speech codes that have the potential to suppress classroom speech
that is unconventional or unorthodox. Courts have repeatedly invali-
_________________________________________________________________
5 The majority's hypothetical involving an assistant district attorney
serves further to illustrate the drawbacks of its approach. In focusing
once again solely on the form of speech, the majority ignores the differ-
ent context between its hypothetical and the present case. Assistant dis-
trict attorneys operate under a chain of supervision and command and
their words would be taken to represent the government's position on a
given matter. This differs so dramatically from the context of the present
speech that it is hard to believe that the majority would even seek to draw
a comparison. All this is quite apart from the fact that the majority's
assistant district attorney hypothetical represents an individual employ-
ment matter that (academic or otherwise) is less likely to involve matters
of public concern than a broad statutory restriction on speech.
47
dated these codes for trampling on First Amendment freedoms. See
Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182-84 (6th Cir.
1995) (finding policy against discriminatory harassment unconstitu-
tionally vague and overbroad); Iota Xi Chapter of Sigma Chi Frater-
nity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir. 1993)
(holding that university cannot maintain gender-neutral educational
environment by silencing speech on the basis of viewpoint). These
speech codes are often exceptionally broad. For instance, one univer-
sity code forbids "`any intentional, unintentional, physical, verbal, or
nonverbal behavior that subjects an individual to an intimidating, hos-
tile or offensive educational, employment or living environment by
. . . demeaning or slurring individuals through . . . written literature
because of their racial or ethnic affiliation; or . . . using symbols, [epi-
thets] or slogans that infer negative connotations about the individu-
al's racial or ethnic affiliation.'" See Dambrot, 55 F.3d at 1182(quoting the Plan for Affirmative Action at Central Michigan Univer-
sity). A statute could be passed that has similarly broad terms reach-
ing substantial amounts of protected speech. Yet under the majority's
reasoning, such statutes would not implicate any First Amendment
rights because they would regulate university professors only as state
employees, and therefore would not involve matters of public con-
cern. The majority provides no way to distinguish the statute at issue
here from more intrusive future statutes. Under the majority's ratio-
nale, whenever state employees are regulated as state employees, their
speech lies outside the realm of "public concern." Thus, regardless of
the statute, there is no balancing of the competing First Amendment
and state interests. This relegates academic speech to a First Amend-
ment netherworld.
The Supreme Court has recognized that "the university is a tradi-
tional sphere of free expression . . . fundamental to the functioning of
our society." Rust v. Sullivan, 500 U.S. 173, 200 (1991). Further,
"[t]he essentiality of freedom in the community of American universi-
ties is almost self-evident." Sweezy v. New Hampshire, 354 U.S. 234,
250 (1957). Thus the Commonwealth's ownership of the plaintiffs'
computers or communication lines cannot end our analysis. Virginia
also owns the chairs on which plaintiffs sit and the desks at which
they work. But the Commonwealth does not thereby "own" their
every thought and utterance. As cyberspace expands, web pages may
provide more and faster access to information that will contribute to
48
the understanding of social problems and ultimately to solutions for
them. Insofar as public employees are concerned, the majority would
allow the state to shut down this informational resource at its whim.
It is remarkable that Internet research with all its potential falls out-
side the majority's conception of public concern. Discarding the
ancient safeguards of the First Amendment is no way to welcome this
modern technological development.
II.
Because the Act restricts speech on matters of public concern, we
must determine whether the burden on speech is justified by the gov-
ernmental interest at stake. See Pickering, 391 U.S. at 568. Because
of the widespread impact of the statute, "the Government's burden is
greater . . . than with respect to an isolated disciplinary action" such
as those considered in Connick and Pickering. NTEU, 513 U.S. at
468. The Commonwealth must show that the interests of plaintiffs
and of society in the expression "are outweighed by [the] expression's
necessary impact on the actual operation of the Government." Id.(internal quotation marks omitted). Whether judges happen to
approve of this statute is not the question to be addressed under the
Pickering/NTEU balance. We do not evaluate the enactment's desir-
ability, only its constitutionality. Our view of the wisdom of a state
provision "may not color our task of constitutional adjudication."
Clements v. Fashing, 457 U.S. 957, 973 (1982).
While I fully agree with my dissenting colleagues that the speech
at issue here is of public concern, I part company with their balancing
under the second part of the Connick analysis. There is no question
that the General Assembly addressed a real, not a fanciful, problem
when it enacted this statute. The record is replete with examples of
Internet web sites displaying graphic forms of sexual behavior. See
Urofsky v. Allen, 995 F. Supp. 634, 639 (E.D. Va. 1998) (describing
web site on university computer containing "graphic images of a nude
woman in chains, a nude man with an erection, and a man and woman
engaged in anal intercourse"). The posting of such material on web
sites in state offices has led to workplace disruption and complaints
that such sexually graphic matter contributes to a hostile work envi-
ronment. While such abuses may be confined to a small minority of
employees, Virginia has an undisputed and substantial interest in pre-
49
venting misconduct of this sort. Sexual harassment via computer is as
objectionable in the university setting as it is in any workplace. The
Commonwealth's interest as an employer in workplace efficiency is
similarly beyond question. See Pickering, 391 U.S. at 568; Connick,
461 U.S. at 143 ("[G]overnment offices could not function if every
employment decision became a constitutional matter.").
The state thus has every right to require its employees to spend
their workday energies on the functions for which it is paying them.
As the Supreme Court has stated, "Interference with work, personnel
relationships, or the speaker's job performance can detract from the
public employer's function; avoiding such interference can be a
strong state interest." Rankin v. McPherson, 483 U.S. 378, 388
(1987). While many university employees doubtless have genuine
scholarly interests in the study of sexual phenomena, for others the
examination of sexually explicit matter may bear no relationship to
any academic enterprise. As the Commonwealth argues,"Publication
of materials in the workplace that colleagues find offensive and
demeaning plainly harms workplace morale and detracts from the
efficiency of the workforce." Appellant's Br. at 35. In a more general
but still important sense, the ubiquity of sexual imagery may diminish
employee self-control and debase the entire workplace environment.
My dissenting colleagues, however, give little weight to the Com-
monwealth's interest in the management of its own educational sys-
tem and the running of its own workforce -- surely important
interests under our federal scheme of government.
On plaintiffs' side of the balance, the Act, as noted, restricts access
to material that potentially touches on matters of public concern. The
recent revisions to the statute, however, have narrowed its scope con-
siderably. As noted by the majority, the Act restricts the use of state
owned or leased computer equipment to access any material "having
sexually explicit content." Va. Code Ann. § 2.1-805 (Michie Supp.
1999). As revised the statute defines "sexually explicit content" as:
"content having as a dominant theme (i) any lascivious description of
or (ii) any lascivious picture, photograph, drawing, motion picture
film . . . or similar visual representation depicting sexual bestiality, a
lewd exhibition of nudity, . . . sexual excitement, sexual conduct or
sadomasochistic abuse, . . . coprophilia, urophilia, or fetishism." Id.§ 2.1-804. Although the statute still limits access to some non-
50
obscene information, it now restricts a more limited range of material
-- namely that which has as its dominant theme the lascivious depic-
tion of nudity or sexual conduct.
Most importantly, through the waiver process the Commonwealth
also accommodates the various interests at stake-- barring employee
access to lascivious material generally, but providing a procedure that
can be invoked whenever educational institutions determine that aca-
demic freedom so requires. The significant state interest here is thus
balanced against a minimal intrusion on academic inquiry. Under the
Act, the ultimate judgment on whether a requested waiver is for a
bona fide research project resides in the system of university gover-
nance. The statute grants "agency heads" the authority to approve
these waivers. Id. § 2.1-805. As a practical matter, it appears from the
record that Virginia's colleges and universities have delegated pri-
mary approval authority to officials such as deans and department
heads.
The Commonwealth thus maintains academic freedom by reposing
critical authority within the university itself. The Supreme Court has
noted that academic freedom "thrives not only on the independent and
uninhibited exchange of ideas among teachers and students, but also,
and somewhat inconsistently, on autonomous decisionmaking by the
academy itself." Regents of the Univ. of Mich. v. Ewing, 474 U.S.
214, 226 n.12 (1985) (citations omitted). See also J. Peter Byrne, Aca-
demic Freedom: A "Special Concern of the First Amendment", 99
Yale L.J. 251, 333 (1989) (defending institutional academic freedom
based on "those research and humanistic values of a university that
are unique to it"). Virginia's statute fits within this model of univer-
sity self-governance. In using the term university self-governance I do
not intend to downplay the significant role of state government and
boards of trustees with respect to state systems of higher education,
but to underscore the traditional role of deans, provosts, department
heads, and faculty in making purely academic decisions.
It is this thread of institutional self-governance that ties our judg-
ment today with Boring v. Buncombe County Board of Education,
136 F.3d 364 (4th Cir. 1998) (en banc). In Boring we held that
"school administrative authorities had a legitimate pedagogical inter-
est in the makeup of the curriculum of the school." Id. at 370. We rea-
51
soned that school boards must retain the "most basic authority to
implement a uniform curriculum." Id. at 373. In upholding the right
of a school board to make curriculum decisions, we upheld as well the
state's legitimate interest in its secondary school governance struc-
ture. See id. at 368-69 (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 271 (1988), and Kirkland v. Northside Indep. Sch. Dist.,
890 F.2d 794, 800 (5th Cir. 1989)). It is true that the governance
structures of higher education and secondary education differ quite
dramatically. The underlying approach of the court, however, should
be the same. Where the state, as here, has worked within the tradi-
tional governance structure for educational institutions, the hand of
the federal judiciary should ordinarily be stayed.
This is so for many reasons. It is well-established that federal
courts have no business acting as surrogate university deans. Our "re-
luctance to trench on the prerogatives of state and local educational
institutions," Ewing, 474 U.S. at 226, is grounded in powerful notions
of federalism and a healthy awareness of limited judicial competence
in university administration. Federal courts are simply not "suited to
evaluate the substance of the multitude of academic decisions that are
made daily by faculty members of public educational institutions." Id.Were we asked to review ex post the judgments of these academic
deans and department heads with respect to individual waiver
requests, we would thus act with extreme deference. And for good
reason. The discretionary choices made by provosts, deans, and facul-
ties in the contexts of hiring, tenure, curriculum selection, grants, and
salaries all potentially burden individual academic freedom to some
extent, but courts have generally been unwilling to second-guess these
necessarily sensitive and subjective academic judgments. See Ewing,
474 U.S. at 225 ("When judges are asked to review the substance of
a genuinely academic decision, . . . they should show great respect for
the faculty's professional judgment."); University of Pa. v. EEOC,
493 U.S. 182, 199 (1990) ("[C]ourts have stressed the importance of
avoiding second-guessing of legitimate academic judgments."). We
should not presume ex ante that those same institutions will discharge
their authority under this statute in an irrational or arbitrary fashion.
I am thus not prepared to believe, as plaintiffs suggest, that a free aca-
demic institution will invade the freedoms of its own constituent
members. In fact, the record reflects just the opposite -- several pro-
52
fessors have received research waivers from their colleges or univer-
sities upon request. We have not been made aware of any examples
of professors whose requests for exemptions were denied.
The fact that this statute governs use of the Internet should not
change our approach to institutional self-governance. The Internet
allows unparalleled access to information, thereby enhancing opportu-
nities for freedom of expression and holding tremendous promise for
virtually all types of research. But with this exponential growth of
freedom comes the potential for abuse. Whereas formerly access to
sexually explicit matter was somewhat limited, now a click of the
mouse can invite obscene material into the middle of the working
environment.
When the danger of abuse is great, however, so also is the danger
of unwarranted repression. There will be the temptation to brand all
public employees as miscreants because of the publicized misadven-
tures of a few. This would be a mistake. "`The greater the importance
of safeguarding the community . . . the more imperative is the need
to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free politi-
cal discussion . . . .'" Keyishian, 385 U.S. at 602 (quoting De Jonge
v. Oregon, 299 U.S. 353, 365 (1937)). The Commonwealth has made
the judgment that universities themselves are best equipped to balance
the enormous promise of the Internet against the novel risks that may
accompany it. Because the limited restrictions in this Act are adminis-
tered within the traditional structure of university governance, I do
not believe the Virginia statute contravenes the Constitution.
III.
My fine colleagues in the majority and in concurrence take issue
with the above approach. They claim I believe "professors possess a
special constitutional right," ante at 10 n.7, that I am "emphatic that
a new constitutional right must be created," ante at 25 (Luttig, J., con-
curring), and that my "new-found right is reserved for professors
alone," ante at 25. I would, however, create no new right of any sort.
I would simply review the form, content, and context of the speech
at issue -- something that the Supreme Court requires us to do in
Connick and that the majority steadfastly refuses to do. The conse-
53
quence of the majority's failure could not be more serious. Under the
majority's view, even the grossest statutory restrictions on public
employee speech will be evaluated by a simple calculus: if speech
involves one's position as a public employee, it will enjoy no First
Amendment protection whatsoever. My colleagues in the majority
would thus permit any statutory restriction on academic speech and
research, even one that baldly discriminated on the basis of social per-
spective or political point of view.
The Supreme Court has eschewed such a reductionist view of First
Amendment rights. By refusing to undertake a proper public concern
inquiry under the first step of Connick and Pickering, the majority
ensures that all statutes targeting public academic speech are immune
from balancing in the second step. Thus, a court need never even
examine the competing state and public employee interests at stake.
But the Supreme Court has stated that "[a]lthough such particularized
balancing is difficult, the courts must reach the most appropriate pos-
sible balance of the competing interests." Connick, 461 U.S. at 150.
By upholding this statute on the first step of Connick/Pickering, the
majority surrenders this balance to a world of absolutes.
The majority and concurrence also characterize my approach as
one of academic privilege. They contend I believe that "professors
possess a special constitutional right of academic freedom," ante at 10
n.7, and that "the academy has a special contribution to make to soci-
ety," ante at 25 (Luttig, J., concurring).
But the Supreme Court itself has emphasized that "academic free-
dom . . . is of transcendent value to all of us and not merely to the
teachers concerned." Keyishian, 385 U.S. at 603 (emphasis added).
Indeed, "[t]he essentiality of freedom in the community of American
universities is almost self-evident." Sweezy, 354 U.S. at 250 (emphasis
added). By its talk of special rights and privileges, I fear the majority
somehow sees academic speech and democratic values as inconsistent
or at odds. With all respect, this need not be our view. I had always
supposed that democracy and speech, including academic speech,
assisted one another and that democracy functioned best when the
channels of discourse were unfettered. It would be folly to forget this
fundamental First Amendment premise in complex times when
change of every sort confronts us. Those who have worked to acquire
54
expertise within their given fields can aid popular representatives in
reaching decisions and in shaping an informed response to rapid
change. Democratic representatives may often choose to reject aca-
demic proposals, but rejection, not suppression, is the constitutionally
tested course. In all events, for speech to function usefully and cre-
atively it cannot be subject, as my colleagues in the majority would
now have it, to the unexamined legislative will. "One's right to life,
liberty, and property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to
vote; they depend on the outcome of no elections." West Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
The majority undertakes an extended discussion of academic
speech, because public university professors are the plaintiffs before
us. But the majority concludes, without any proper content-context
inquiry, that such speech can never be of public concern. This dis-
missal is something we shall come to regret. I recognize that aca-
demic speech may well appear at times to be petty, "politically
correct," or floating far beyond reality. But to see it as only that is to
slip too easily into stereotype. Academic views on any subject are
often varied, and it remains an abiding challenge to democratic lead-
ership to understand what is misguided and naive about expert opin-
ion and what is sound and wise. I offer no apology for believing,
along with the Supreme Court in Keyishian, Sweezy, and Rosenber-
ger, in the significant contribution made to society by our colleges
and universities. That contribution, however, is but one of many made
from all walks of national life. Elected officials, labor leaders, indus-
trialists, farmers, entrepreneurs, social workers, religious leaders, par-
ents and teachers, the self-employed and the unemployed all make
their contribution to the broad river of American speech, and I would
not shut off any stream or tributary. The source from which speech
flows should not mark it for judicial disfavor. I fear the court forgets
that freedom of speech belongs to all Americans and that the threat
to the expression of one sector of society will soon enough become
a danger to the liberty of all.
MURNAGHAN, Circuit Judge, dissenting:
The majority's interpretation of the "public concern" doctrine
makes the role of the speaker dispositive of the analysis. Specifically,
55
the majority states that "critical to a determination of whether
employee speech is entitled to First Amendment protection is whether
the speech is `made primarily in the [employee's] role as citizen or
primarily in his role as employee.'" See ante at 8 (quoting Terrell v.
University of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986)).
The majority then rejects the plaintiffs' First Amendment claim
because "[t]he speech at issue here . . . is clearly made in the employ-
ee's role as employee." Id. at 11. Because an analysis of Connick v.
Myers, 461 U.S. 138 (1983), and its progeny reveals that the majority
has adopted an unduly restrictive interpretation of the "public con-
cern" doctrine, I respectfully dissent.
I.
A.
In Connick, the Supreme Court held that, as a threshold matter, if
a public employee's speech "cannot be fairly characterized as consti-
tuting speech on a matter of public concern," then a court does not
balance the employer's interests with those of the employee. Connick,
461 U.S. at 146. The Court broadly defined speech of public concern
as speech "relating to any matter of political, social, or other concern
to the community." Id. The Court also stated that "[w]hether an
employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as
revealed by the whole record." Id. at 147-48. Nowhere in Connick,
however, did the Court state that the role of the speaker, standing
alone, would be dispositive of the public concern analysis.
Indeed, the facts of Connick belie this suggestion. Sheila Myers, an
Assistant District Attorney, was discharged for distributing a ques-
tionnaire to the other attorneys in her office. In general, Myers' ques-
tionnaire asked her peers what they thought of the trustworthiness of
certain attorneys in the office, the morale of the office, and the
office's transfer policy. See id. at 141.
The Court held that these questions "do not fall under the rubric of
matters of `public concern,'" because they were "mere extensions of
Myers' dispute over her transfer to another section of the criminal
court." Id. at 148. Myers' questionnaire, however, also asked whether
56
her fellow attorneys "ever feel pressured to work in political cam-
paigns on behalf of office supported candidates." Id. at 149. This
question was in the same form and context as Myers' other questions
--an internal questionnaire distributed by an employee complaining
about on-the-job conditions. The question thus was speech by an
employee in her role as an employee. The Court nevertheless held that
this question did "touch upon a matter of public concern." Id. The
majority's formalistic focus on the "role of the speaker" in employee
speech cases therefore runs directly contrary to Supreme Court prece-
dent.
B.
Post-Connick decisions of this court also make it clear that the role
of the speaker does not control the public concern analysis. In Piver
v. Pender County Bd. of Educ., 835 F.2d 1076 (4th Cir. 1987), the
plaintiff, a high school teacher, circulated a petition to his students
during class urging retention of the school's principal. See id. at 1077.
The plaintiff undoubtedly was speaking in his role as an employee,
as he was being paid by the State and using State facilities (class-
rooms) to carry out his employment duties (instructing students). The
court nevertheless held that the plaintiff's speech was on a matter of
public concern because it was a "matter in which the community . . .
was vitally interested." Id. at 1080. The court also stressed that the
speech was "of much wider importance than a mere`private person-
nel grievance,'" that would not be of public concern. Id.In Piver, the court relied on the "public concern" analysis set out
by this court in Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985). In
Berger, the court interpreted the public concern doctrine as excluding
from First Amendment protection only those matters of purely per-
sonal interest to the employee.
Pickering, its antecedents, and its progeny--particularly
Connick--make it plain that the "public concern" or "com-
munity interest" inquiry is better designed--and more
concerned--to identify a narrow spectrum of employee
speech that is not entitled even to qualified protection than
it is to set outer limits on all that is. The principle that
emerges is that all public employee speech that by content
57
is within the general protection of the first amendment is
entitled to at least qualified protection against public
employer chilling action except that which, realistically
viewed, is of purely "personal concern" to the employee--
most typically, a private personnel grievance.
Id. at 998. Furthermore, the court stated that when analyzing whether
speech is upon "any matter of political, social, or other concern to the
community," see Connick, 461 U.S. at 146,"[t]he focus is . . . upon
whether the `public' or the `community' is likely to be truly con-
cerned with or interested in the particular expression, or whether it is
more properly viewed as essentially a `private' matter between
employer and employee." Berger, 779 F.2d at 999.
Berger's broad approach to the public concern doctrine, focusing
on the public importance of the speech, stands in stark contrast to the
majority's singular focus on the role of the speaker--regardless of the
public import of the speaker's message. See also Arvinger v. Mayor
and City Council of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)
("Although the Connick court did not elaborate on the relative weight
to be accorded these three factors, this court has held that `content,
subject-matter, is always the central aspect.'") (quoting Jackson v.
Blair, 851 F.2d 714, 720 (4th Cir. 1988)).
C.
The majority justifies its singular focus on the role of the speaker
by citing to language from United States v. National Treasury
Employees Union, 513 U.S. 454 (1995) ("NTEU"). In NTEU, the
plaintiffs were executive branch employees challenging a law prohib-
iting federal employees from accepting any compensation for making
speeches or writing articles, even when the speeches or articles did
not have any connection to the employees' official duties. The
Supreme Court held that the plaintiffs' speech was on a matter of pub-
lic concern. See id. at 466. In doing so, the Court stated that "[t]hey
seek compensation for their expressive activities in their capacity as
citizens, not as Government employees. . . . With few exceptions, the
content of respondents' messages has nothing to do with their jobs
and does not even arguably have any adverse impact on the efficiency
of the offices in which they work." Id. at 465.
58
The majority's analysis of this language attempts to push NTEU
where it did not go. The Court in NTEU stated that the plaintiffs'
speech was on a matter of public concern in part because it was unre-
lated to the plaintiffs' employment; however, nowhere in NTEU did
the Court state the converse: namely, that if the plaintiffs' speech was
in their role as employees, then it automatically would not qualify as
speech on a matter of public concern. Therefore, at best, NTEU sug-
gests that the role of the speaker is a factor in a public concern analy-
sis. But even a broad reading of NTEU does not suggest that the role
of the speaker is the only factor to consider in a public concern analy-
sis, despite the majority's claims to the contrary.
The majority also relies on our decision in Boring v. Buncombe
County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998) (en banc). In Bor-
ing, the plaintiff, a high school teacher, was transferred by her princi-
pal for producing a student-acted play that addressed controversial
topics such as lesbianism and teen pregnancy. The plaintiff alleged
that the County violated her First Amendment rights by transferring
her in retaliation for producing the play. See id. at 366-67.
A majority of this court framed the issue in Boring as only
"whether a public high school teacher has a First Amendment right
to participate in the makeup of the school curriculum through the
selection and production of a play." Id. at 366. The majority held that
the plaintiff's selection of the play was not a matter of public concern
and was merely an "ordinary employment dispute." Id. at 368. As
their framing of the issue shows, however, the majority's reasoning
was not based on the fact that the plaintiff's production of the play
was in her role as a school district employee. Rather, the majority
answered the narrower question of whether a teacher has a First
Amendment right to participate in the makeup of the curriculum.
Judge Luttig's concurring opinion in Boring also illustrates that the
majority's holding did not deal with the broader issue of whether
speech by an employee in her role as an employee can qualify as
speech on a matter of public concern. Judge Luttig stated that
[the dissent] fails to recognize the elementary difference
between teacher in-class speech which is curricular, and
teacher in-class speech which is noncurricular, because it
59
assumes that every word uttered by a teacher in a classroom
is curriculum. In the latter context of teacher in-class non-
curricular speech, the teacher assuredly enjoys some First
Amendment protection.
Id. at 373 (Luttig, J., concurring) (emphasis added). Presumably,
Judge Luttig meant that teacher in-class noncurricular speech could
be speech on a matter of public concern. As stated previously, how-
ever, a teacher's in-class speech is speech in her role as an employee,
whether the speech is curricular or noncurricular. While students are
under her care and supervision in the classroom, a teacher surely can-
not be regarded as a "citizen" rather than an "employee" merely
because she is discussing something other than trigonometry. Thus,
Boring must rest on something other than the principle that speech by
an employee in her role as an employee never qualifies as speech on
a matter of public concern. See Boring, 136 F.3d at 379 (Motz, J., dis-
senting) ("Because the majority does not attempt to explicitly hold
that the role in which an employee speaks is determinative [or over-
rule prior precedent], this reasoning must not be the basis for its con-
clusion that Boring's speech does not relate to a matter of public
concern."). Boring therefore does not compel a finding that the plain-
tiffs' speech is not on a matter of public concern, merely because the
plaintiffs' speech occurs in their role as employees.1
D.
Because speech by an employee in her role as an employee can
qualify as speech on a matter of public concern, the issue thus
becomes whether, in the instant case, the plaintiffs' speech is on a
"matter of political, social, or other concern to the community." Con-
nick, 461 U.S. at 146. The plaintiffs' speech easily meets this test.
The Supreme Court has stated that "[s]ex, a great and mysterious
motive force in human life, has indisputably been a subject of absorb-
ing interest to mankind through the ages; it is one of the vital prob-
_________________________________________________________________
1 In any event, to the extent that Boring controls the public concern
analysis in the instant case, and I do not agree that it does, I would revisit
that holding. Judge Motz persuasively argued in her dissent in Boring
why the majority's approach to public employees is at odds with Connick
and its progeny.
60
lems of human interest and public concern." Roth v. United States,
354 U.S. 476, 487 (1957) (emphasis added).
The Act restricts over 101,000 state employees, including univer-
sity professors, librarians, museum workers, and physicians and social
workers at state hospitals, from researching, discussing, and writing
about sexually explicit material. As the district court noted, "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 con-
cerning sexual disease, sexual dysfunction, and sexually related men-
tal disorders, and the routine exchange of information among social
workers on sexual assault and child abuse." Urofsky v. Allen, 995 F.
Supp. 634, 636 (E.D. Va. 1998). These topics undeniably touch on
matters of public concern.
The Commonwealth's recent revision to the Act limiting the defini-
tion of "sexually explicit content" to materials and descriptions that
are "lascivious" does not change the analysis. Many works of public
import could be classified as lascivious; in fact, many were specifi-
cally intended to have such an effect. For instance, the works of Toni
Morrison and many themes found in Victorian poetry, including the
material researched online by one of the plaintiffs, Professor Myers,
could be classified as lascivious. Also, the application of the Act to
"lascivious" e-mail discussions by psychologists and social workers
implicates topics of public import, because the public has an interest
in unfettered discussions by State professionals concerning the abnor-
mal sexual behaviors of their patients, in order to better diagnose and
understand sexual deviancy.
Finally, the form of the plaintiffs' speech, Internet and e-mail com-
munications, makes the speech of special public significance. In the
information age, electronic communications may be the most impor-
tant forum for accessing and discussing topics of concern to the com-
munity. This court should be wary of allowing the State to regulate
this important medium of communication without requiring a legiti-
mate justification for the regulation.
II.
Because the plaintiffs' speech is on a matter of public concern, we
must balance the plaintiffs' interests in speaking on a matter of public
61
concern against "the interest of the State, as an employer, in promot-
ing the efficiency of the public services it performs through its
employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Our
analysis of this balancing test is guided by the Supreme Court's deci-
sion in NTEU, a case involving a statutory prohibition on certain
types of employee speech.
As in NTEU, the Act at issue in the instant case does not involve
a post hoc analysis of one public employee's speech and the impact
of that speech on the operation of government. Rather, we are forced
to apply Pickering to the Commonwealth's "wholesale deterrent to a
broad category of expression by a massive number of potential speak-
ers." NTEU, 513 U.S. at 467. The widespread impact of a prospective
deterrent on employee speech "gives rise to far more serious concerns
than could any single supervisory decision," because "unlike an
adverse action taken in response to actual speech, this ban chills
potential speech before it happens." Id. at 468.
The Commonwealth's burden in justifying its statutory restrictions
on speech is therefore greater than with respect to an isolated disci-
plinary action. The Commonwealth must establish 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 out-
weighed by that expression's `necessary impact on the actual opera-
tion' of the Government." Id. (quoting Pickering, 391 U.S. at 571).
A. The Interests of the Plaintiffs and the Public
The Act restricts 101,000 state employees from researching, dis-
cussing, and writing about sexually explicit topics within their areas
of expertise, thereby depriving the plaintiffs of their ability to speak
on matters of public concern. It is difficult to measure the effect that
the Act will have in stifling commentary and discourse on important
topics in art, literature, psychology, and other disciplines; however, it
is possible, for example, that seminal academic commentary on the
works of Toni Morrison might be scrapped, and that research into
sadomasochistic abuse in prisons might be set aside. The chilling of
discourse on these topics and other issues adversely affects the mate-
rial available to "potential audiences" of the plaintiffs' speech,
restricting "the public's right to read and hear what the employees
62
would otherwise have written and said." NTEU, 513 U.S. at 470. The
Act thereby deprives the public of the "unique insights" that public
employees can provide in their areas of specialization. Sanjour v.
Environmental Protection Agency, 56 F.3d 85, 94 (D.C. Cir. 1995)
(en banc).
B. The Commonwealth's Interests
The Commonwealth advances two interests in support of the Act's
broad restrictions on employee speech: (1) maintaining operational
efficiency in the workplace; and (2) preventing a sexually hostile
work environment. While the Act may marginally serve the Common-
wealth's asserted interests, the under and overinclusiveness of the Act
is fatal to its constitutionality.
1. Underinclusiveness
The Commonwealth argues that the Act furthers its interest in
workplace efficiency. The Commonwealth states that "[a] state
employee who is reading sexually explicit material unrelated to his
work is not doing the job he was hired to do." Appellant's Br. at 35.
The Commonwealth's general interest in workplace efficiency, how-
ever, cannot be the basis for the Act's specific prohibition on access-
ing sexually explicit material on State computers.
First, employee efficiency is undermined by any activities that dis-
tract an employee from her job-related duties, not just unauthorized
Internet use. Reading newspapers, listening to the radio, chatting with
coworkers, or talking on the telephone with friends are examples of
activities that keep an employee from performing her best on the job.
The Commonwealth, however, does not attempt to regulate these
activities through the Act, nor does it cite to any evidence that access-
ing sexually explicit material undermines workplace efficiency any
more than these activities.
Second, the Act does not even cover all of the uses of the Internet
that undermine workplace efficiency. Employees may use State com-
puters to send non-work related e-mail, as well as access news ser-
vices, chat rooms, sports websites, and other material unrelated to
63
their jobs. The Commonwealth has not explained, and cannot possibly
explain, why employees who access sexually explicit material are any
less "efficient" at their work than employees who check espn.com
every twenty minutes during the NCAA tournament.
The Commonwealth next argues that the Act furthers its interest in
preventing sexual harassment in the workplace. Again, the Act is not
tailored to combat this ill in any material way. The Act targets only
access to sexually explicit material on the Internet--ignoring books,
calendars, pictures, and other sexually explicit material that demeans
women and helps create a sexually hostile work environment. A pro-
fessor therefore would violate the Act by accessing the Internet to
complete research on Victorian poetry, yet he would not violate the
Act by leaving copies of Hustler Magazine lying around his office.
In addition, the Act only prohibits the accessing of sexually explicit
material on state-owned computers; it does not impose a general ban
on accessing any sexually explicit material on computers in the work-
place. Thus, a state employee may use his own computer to access
patently pornographic pictures around his students or colleagues with-
out violating the Act. The Commonwealth does not provide any justi-
fication for why sexually explicit images are any less likely to create
a hostile work environment if those images come from an employee's
personal computer rather than from a state-owned computer.
2. Overinclusiveness
The Act is also impermissibly overinclusive. It prohibits research
and commentary by state employees who access this material to
advance public discourse, awareness, treatment, and commentary on
a variety of disciplines and social problems. The Act thus reaches the
legitimate work-related uses of sexually explicit material, uses wholly
unrelated to the narrower category of gratuitous sampling of porno-
graphic material that the Act was intended to address. The Common-
wealth appears to concede this point; however, the Commonwealth
argues that the Act's prior approval process ensures that employees
who have a legitimate need to access sexual explicit material will be
able to do so.
The Act's prior approval provision allows state employees to
access sexually explicit material "to the extent required in conjunction
64
with a bona fide, agency-approved research project or other agency-
approved undertaking." The Act's prior approval process, however,
has no check on the discretionary authority of State agencies. The
Supreme Court, in a related context, has found that such grants of
unbridled discretion to government agents invites arbitrary enforce-
ment. In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.
750 (1988), the Court held that
when the determination of who may speak and who may not
is left to the unbridled discretion of a government official
. . . we have often and uniformly held that such statutes or
policies impose censorship on the public or the press, and
hence are unconstitutional, because without standards gov-
erning the exercise of discretion, a government official may
decide who may speak and who may not based upon the
content of the speech or viewpoint of the speaker.
Id. at 763; see also Sanjour, 56 F.3d at 97 ("Far from being the saving
grace of this regulatory scheme--as the government suggests--the
broad discretion that the regulations vest in the agency reinforces our
belief that they are impermissible."). The potential for censorship by
the State "justifies an additional thumb on the employees' side of
[the] scales." See Harman v. City of New York, 140 F.3d 111, 120 (2d
Cir. 1998) (invalidating agency's policy requiring prior approval for
employee statements to the media) (quoting Sanjour, 56 F.3d at 97).
The danger of arbitrary censorship is particularly relevant in the
instant case, given the differing views on the merits of research and
discussion into sexually-related topics.
The prior approval process does not save the Act even if we could
assume that approvals would not be withheld arbitrarily, because the
"mere existence of the licensor's unfettered discretion, coupled with
the power of prior restraint, intimidates parties into censoring their
own speech, even if the discretion and power are never actually
abused." Lakewood, 486 U.S. at 757. Thus, even those employees
who receive permission to speak will be inclined to engage in self-
censorship, ultimately to the detriment of the public in the form of a
banal and lifeless discourse on issues of public concern.
The under and overinclusiveness of the Act shows the "obvious
lack of `fit' between the government's purported interest and the
65
sweep of its restrictions." Sanjour, 56 F.3d at 95. The lack of fit
between the Act's broad restrictions and the interests the Act alleg-
edly was intended to serve "cast[s] serious doubt," see id., on the
Commonwealth's claim that employees' access to sexually explicit
material has a "necessary impact on the actual operation of the Gov-
ernment." NTEU, 513 U.S. at 468 (internal quotation omitted). Conse-
quently, the Act does not survive the heightened scrutiny applied to
statutory restrictions on employee speech.
III.
For the foregoing reasons, I would affirm the judgment of the dis-
trict court.
66