Urofsky v. Gilmore
216 F.3d 401 (2000)
Rule of Law:
When a state regulates the speech of its employees in their capacity as employees, rather than as private citizens speaking on matters of public concern, the First Amendment is not infringed. The concept of "academic freedom," to the extent it is constitutionally recognized, inheres in the university as an institution, not in individual professors, and does not provide individual professors a heightened First Amendment right to control the content of their work using state resources.
Facts:
- The Commonwealth of Virginia enacted a law (Va.Code Ann. §§ 2.1-804 to -806) that generally prohibits state employees from using state-owned or leased computer equipment to access, download, print, or store sexually explicit content.
- The Act initially defined "sexually explicit content" broadly to include descriptions or visual representations depicting various sexual acts or nudity.
- The Act allows for an exception: state agency heads may give written permission for employees to access such material if it is required for a bona fide, agency-approved research project or other agency-approved undertaking.
- Virginia subsequently amended the definition of "sexually explicit content" to specify that the content must have "as a dominant theme" any "lascivious" description or depiction of the enumerated sexual acts.
- Six professors at various public colleges and universities in Virginia were state employees whose work involved, or potentially involved, accessing materials that could be classified as sexually explicit for work-related purposes, such as research on indecency law, Victorian poetry, or human sexuality.
- None of the professors had requested or been denied permission to access sexually explicit materials under the Act, and the record indicated no such requests had been declined by agency heads.
Procedural Posture:
- Six professors employed by various public colleges and universities in Virginia brought an action challenging the constitutionality of a Virginia law (Va.Code Ann. §§ 2.1-804 to -806) in federal district court, naming then-Governor George Allen as defendant.
- James S. Gilmore, III, the newly elected Governor, was substituted as the party defendant.
- The district court (E.D.Va.) granted summary judgment in favor of the professors, ruling that the Act unconstitutionally infringed on state employees' First Amendment rights.
- A panel of the Fourth Circuit Court of Appeals reversed the district court's decision.
- A majority of the active circuit judges of the Fourth Circuit Court of Appeals thereafter voted to hear the appeal en banc.
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Issue:
Does a state law prohibiting public employees from accessing sexually explicit material on state-owned or leased computers, with an exception for agency-approved research, violate the First Amendment rights of state employees, including university professors claiming academic freedom?
Opinions:
Majority - Wilkins, Circuit Judge
No, the Virginia law does not violate the First Amendment rights of state employees or professors. The court held that the Act regulates state employees' speech in their capacity as employees, not as citizens addressing matters of public concern. The threshold inquiry in public employee speech cases is whether the speech is by a private citizen on a matter of public concern. If not, the state, as employer, may regulate it without infringing First Amendment protections. The speech at issue—accessing materials on state-owned computers for employment duties—is clearly made in the employee's role as an employee. Public employers have greater authority to restrict employee speech to promote efficiency and control how duties are discharged. The court also rejected the academic freedom argument, stating that the Supreme Court has recognized academic freedom as an institutional right of self-governance, not an individual right of professors to determine their research and teaching. The Act leaves decision-making authority with the university (the agency head), which is consistent with institutional academic freedom.
Concurring - Luttig, Circuit Judge
Yes, the Virginia law is constitutional because the state can regulate its employees' access to sexually explicit material on public resources without infringing First Amendment rights. Luttig fully joins Judge Wilkins's majority opinion, agreeing that the Supreme Court's precedents do not support a contrary conclusion. He criticizes Judge Wilkinson's concurring opinion for attempting to create a "new constitutional right" of academic freedom that is analytically indefensible, not supported by constitutional text, precedent, or history, and ultimately a "pyrrhic victory" as it would still yield to negligible governmental interests. He asserts that when professors conduct university research on university resources, they are acting as public employees, not private citizens. He also criticizes Judge Wilkinson for not performing a proper Pickering balancing test. He emphasizes that academic freedom is a professional norm, not a constitutional right that needs judicial defense, and that all public servants should be equally accountable to the people.
Concurring - Hamilton, Senior Circuit Judge
Yes, the Virginia law is constitutional as the speech in question is employee speech and not entitled to First Amendment protection, and it does not infringe on academic freedom rights of faculty. Hamilton concurs, stating that under the implicit holding of the en banc decision in Boring v. Buncombe County Board of Education, the access and dissemination of sexually explicit materials by Appellees, even if necessary for their duties, is done in their capacity as state employees, and thus not entitled to First Amendment protection. He acknowledges that if left to his own devices, he would apply the Connick/Pickering balancing test, but feels bound by Boring. He also clarifies that the decision leaves open the question of whether a government employee accessing and disseminating such materials as a private citizen on matters of public concern would be protected.
Concurring in the judgment - Wilkinson, Chief Judge
Yes, the Virginia Act is constitutional. While agreeing with the outcome, Wilkinson disagrees with the majority's reasoning that the speech receives no First Amendment protection. He argues that the statute restricts matters of public concern, especially in academia, and that the First Amendment does not "slumber" when the state regulates speech of vital public importance. He emphasizes the need for a careful Pickering/Connick balancing test due to the statute's broad impact as a prior restraint. He contends that academic inquiry into subjects like medicine, psychology, literature, etc., is of public concern and that professors, in their research, speak mainly for themselves, not as state mouthpieces. He distinguishes this from secondary school curriculum decisions where the state has a strong interest in "imprimatur of the school." However, he ultimately finds the statute constitutional because the state has a legitimate interest in preventing workplace disruption and a hostile environment from sexually explicit material. Crucially, the "waiver process" (allowing agency heads, typically university officials, to approve legitimate research) minimizes the intrusion on academic inquiry, allowing institutional self-governance to operate, which he sees as a "minimal intrusion." Federal courts should defer to such academic judgments.
Dissenting - Murnaghan, Circuit Judge
Yes, the Virginia law violates the First Amendment rights of state employees. Murnaghan dissents, arguing the majority adopts an unduly restrictive interpretation of the "public concern" doctrine by making the "role of the speaker" dispositive. He cites Connick v. Myers to show that the Court examined content, context, and form, and Connick itself found a question about political campaigns to be public concern even when asked by an employee in an internal questionnaire. He also references Fourth Circuit precedent (e.g., Berger v. Battaglia) which focuses on the public importance of the speech, not solely the speaker's role. He argues that sexually explicit material, as recognized in Roth v. United States, can be a matter of public concern (e.g., research in art, literature, medicine, social work). Since the speech is of public concern, a Pickering balancing test should be applied, with a higher burden on the state due to the statute's "wholesale deterrent" effect (citing NTEU). He finds the state's interests (workplace efficiency, preventing hostile environment) are not sufficiently served by the Act, which is both under-inclusive (doesn't cover all distractions or sources of sexually explicit material) and over-inclusive (prohibits legitimate research). The lack of clear standards in the prior approval process (unbridled discretion) leads to potential censorship and self-censorship.
Analysis:
This case significantly narrows the scope of First Amendment protection for public employees' speech, particularly when such speech occurs in the course of their employment duties and utilizes state resources. By emphasizing the "employee capacity" distinction, the Fourth Circuit limits the application of the Pickering balancing test, effectively granting public employers broad authority to regulate work-related speech. The ruling also clarifies that "academic freedom" is primarily an institutional right, not an individual one, potentially impacting how professors can assert constitutional challenges to university or state policies affecting their research and teaching methods when using institutional resources. Future cases involving public employee speech or academic freedom claims will likely face a high bar in demonstrating that the speech is "citizen speech on a matter of public concern" to trigger full First Amendment scrutiny.
