|||UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
|||June 23, 2000
|||MELVIN I. UROFSKY; PAUL SMITH; BRIAN J. DELANEY; DANA HELLER; BERNARD
H. LEVIN; TERRY L. MEYERS, PLAINTIFFS-APPELLEES,
JAMES S. GILMORE, III, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF VIRGINIA, DEFENDANT-APPELLANT.
AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS; THE AUTHORS GUILD; THE THOMAS JEFFERSON CENTERFORTHE PROTECTION OF FREE EXPRESSION, AMICI CURIAE.
|||Before Wilkinson, Chief Judge, Widener, Murnaghan, Wilkins, Niemeyer,
Luttig, Williams, Michael, Motz, Traxler, and King, Circuit Judges, and
Hamilton, Senior Circuit Judge.
|||The opinion of the court was delivered by: Wilkins, Circuit Judge
|||OPINION ON REHEARING EN BANC
|||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
|||Reversed by published opinion. Judge Wilkins wrote the majority opinion,
in which Judges Widener, Niemeyer, Luttig, Williams, Traxler, and Hamilton
joined. Judge Luttig wrote a concurring opinion; Judge Hamilton wrote a
concurring opinion; and Chief Judge Wilkinson wrote an opinion concurring
in the judgment. Judge Murnaghan wrote a dissenting opinion, in which Judges
Michael, Motz and King joined.
|||ARGUED: William Henry Hurd, Senior Counsel to the Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Marjorie Heins,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees.
ON BRIEF: Mark L. Earley, Attorney General of Virginia, Peter R. Messitt,
Senior Assistant Attorney General, Alison Paige Landry, Assistant Attorney
General, Rita R. Woltz, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellant. Ann Beeson, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Louis M. Bograd, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, Washington, D.C.; Michael H. Hammer, Todd G. Hartman,
WILKIE, FARR & GALLAGHER, Washington, D.C., for Appellees. Jonathan
Alger, Donna Euben, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Washington,
D.C.; J. Joshua Wheeler, Robert M. O'Neil, THE THOMAS JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION, Charlottesville, Virginia; Edward M.
McCoyd, THE AUTHORS GUILD, New York, New York, for Amici Curiae.
|||Appellees, six professors employed by various public colleges and universities
in Virginia, brought this action challenging the constitutionality of a
Virginia law restricting state employees from accessing sexually explicit
material on computers that are owned or leased by the state.*fn1
See Va. Code Ann. §§ 2.1-804 to -806 (Michie Supp. 1999) (the Act). The
district court granted summary judgment in favor of Appellees, reasoning
that the Act unconstitutionally infringed on state employees' First Amendment
rights. See Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998). A panel
of this court reversed that decision, holding that our prior en banc opinion
in Boring v. Buncombe County Board of Education, 136 F.3d 364, 368-69 (4th
Cir. 1998) (en banc), compelled the conclusion that the restriction on state
employees' access to sexually explicit material on computers owned or leased
by the state is constitutional because the Act regulates only state employees'
speech in their capacity as state employees, as opposed to speech in their
capacity as citizens addressing matters of public concern. See Urofsky v.
Gilmore, 167 F.3d 191 (4th Cir. 1999). A majority of the active circuit
judges thereafter voted to hear this appeal en banc. We now hold that the
regulation of state employees' access to sexually explicit material, in
their capacity as employees, on computers owned or leased by the state is
consistent with the First Amendment. Accordingly, we reverse the decision
of the district court.
|||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)]. Va. Code Ann.
§ 2.1-805.*fn2 Another section of the
Act defines "sexually explicit content." When the district court
ruled, and when the panel initially considered this appeal, the Act defined
"sexually explicit content" to include:
|||(i) any description of or (ii) any picture, photograph, draw ing, motion
picture film, digital image or similar visual rep presentation 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
|||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).*fn3
|||As its language makes plain, the Act restricts access by state employees
to lascivious sexually explicit material on computers owned or leased by
the state. But, the Act does not prohibit all access by state employees
to such materials, for a state agency head may give permission for a state
employee to access such information on computers owned or leased by the
state if the agency head deems such access to be required in connection
with a bona fide research project or other undertaking. Further, state employees
remain free to access sexually explicit materials from their personal or
other computers not owned or leased by the state. Thus, the Act prohibits
state employees from accessing sexually explicit materials only when the
employees are using computers that are owned or leased by the state and
permission to access the material has not been given by the appropriate
|||None of the Appellees has requested or been denied permission to access
sexually explicit materials pursuant to the Act. Indeed, the record indicates
that no request for access to sexually explicit materials on computers owned
or leased by the state has been declined.*fn4
|||Appellees maintain that the restriction imposed by the Act violates the
First Amendment rights of state employees. Appellees do not assert that
state employees possess a First Amendment right to access sexually explicit
materials on state-owned or leased computers for their personal use; rather,
Appellees confine their challenge to the restriction of access to sexually
explicit materials for work-related purposes. Appellees' challenge to the
Act is twofold: They first maintain that the Act is unconstitutional as
to all state employees; failing this, they argue more particularly that
the Act violates academic employees' right to academic freedom.
|||It is well settled that citizens do not relinquish all of their First
Amendment rights by virtue of accepting public employment. See United States
v. National Treasury Employees Union , 513 U.S. 454, 465 (1995) [hereinafter
NTEU]; Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Board of
Educ., 391 U.S. 563, 568 (1968). Nevertheless, the state, as an employer,
undoubtedly possesses greater authority to restrict the speech of its employees
than it has as sovereign to restrict the speech of the citizenry as a whole.
See Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (recognizing
that "the government as employer . . . has far broader powers than
does the government as sovereign"); Pickering , 391 U.S. at 568 (explaining
that "the State has interests as an employer in regulating the speech
of its employees that differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general"). A determination
of whether a restriction imposed on a public employee's speech violates
the First Amendment requires "`a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.'" Connick, 461
U.S. at 142 (alteration in original) (quoting Pickering, 391 U.S. at 568).
This balancing involves an inquiry first into whether the speech at issue
was that of a private citizen speaking on a matter of public concern. If
so, the court must next consider whether the employee's interest in First
Amendment expression outweighs the public employer's interest in what the
employer has determined to be the appropriate operation of the workplace.
See Pickering, 391 U.S. at 568.
|||The threshold inquiry thus is whether the Act regulates speech by state
employees in their capacity as citizens upon matters of public concern.
If a public employee's speech made in his capacity as a private citizen
does not touch upon a matter of public concern, the state, as employer,
may regulate it without infringing any First Amendment protection.*fn5
See Connick, 461 U.S. at 146 (explaining that if a plaintiff's speech "cannot
be fairly characterized as constituting speech on a matter of public concern,
it is unnecessary . . . to scrutinize the reasons for [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 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 balancing test applied to employees' "expressive activities in
their capacity 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 employment 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 Boring, 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 1255-56
(concluding that speech by supervisor disciplining subordinates 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
|||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 assistant district attorney,
at the District Attorney's direction, makes a formal statement to the press
regarding an upcoming murder trial--a matter that is unquestionably of concern
to the public. It cannot seriously be doubted that the assistant does not
possess a First Amendment right to challenge his employer's instructions
regarding the content of the statement.*fn6
In contrast, when the same assistant district attorney writes a letter to
the editor of the local newspaper to expose a pattern of prosecutorial malfeasance,
the speech is entitled to constitutional protection because it is made in
the employee's capacity as a private citizen and touches on matters of public
|||Judge Wilkinson and Judge Murnaghan fail to recognize the importance 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.*fn7 It is difficult to 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 computers
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 regulate 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 discharge 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 jurisprudence cannot reasonably
be applied to speech by government employees"); 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
citizens speaking on matters of public concern, it does not infringe the
First Amendment rights of state employees. III.
|||Alternatively, Appellees maintain that even if the Act is valid as to
the majority of state employees it violates the First Amendment academic
freedom rights of professors at state colleges and universities,*fn8
and thus is invalid as to them.*fn9 In
essence, Appellees contend that a university professor possesses a constitutional
right to determine for himself, without the input of the university (and
perhaps even contrary 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, however, leads
us to conclude that to the extent the Constitution recognizes 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 Academic
Freedom: The Evolution of a Fish Out of Water , 77 Neb. L. Rev. 301, 302
(1998) ("[C]courts 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 barnacles."). As a result, decisions
invoking academic freedom are lacking in consistency, see Stuller, supra,
at 303, and courts invoke the doctrine 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
|||Prior to the late nineteenth century, institutions of higher education
in this country were not considered centers of research and scholarship,
but rather were viewed as a means of passing received wisdom on to the next
generation. See Richard Hofstadter & Walter P. Metzger, 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, American universities during this period were
characterized by "legal control by non-academic trustees; effective
governance by administrators set apart from the faculty by political allegiance
and professional orientation; [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 Definitions
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 Hofstadter & Metzger, supra,
at 386-91 (discussing German understanding 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
professional autonomy from lay administrators and trustees.*fn10
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, molestation, or
penalization because the conclusions are unacceptable to some constituted
authority within or beyond the institution." Stuller, supra, at 309
(internal quotation marks omitted).*fn11
Significantly, the 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 Hofstadter
& 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 promulgated by the AAUP and the Association
of American Colleges. See Richard H. Hiers, Academic Freedom in Public Colleges
and Universities: 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 Values and Sexual Harassment in the University
Classroom, 4 U. Chi. L. Sch. Roundtable 85, 86-87 (1996-97).*fn12
|||Appellees' insistence that the Act violates their rights of academic freedom
amounts to a claim that the academic freedom of professors is not only a
professional norm, but also a constitutional right.*fn13
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 Powell, J.); Keyishian v. Board
of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S.
234, 250 (1957) (plurality opinion); id. at 261-63 (Frankfurter, J., concurring
in the result). Despite these accolades, the Supreme Court has never set
aside a state regulation 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 policymaking).
|||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 freedom 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 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 "liberties 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 Constitution. 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 witness 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 Justice Frankfurter indicate that individual academic freedom rights
had been infringed; in his view, the constitutional harm fell entirely on
the university as an institution.*fn14
|||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. However, 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 individual First Amendment right
of academic freedom, such a holding would not advance Appellees' claim of
a First Amendment right pertaining 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 membership 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 holding 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 unconstitutional 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 significance 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 constitutional 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
disqualifying 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 termination of any public employee who invoked
Fifth Amendment right against self-incrimination to avoid a question related
to official conduct, 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 nondiscriminatory
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) (opinion 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,
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 academic
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 provisions of which were upheld
in Adler, designed "to prevent the appointment or retention of `subversive'
persons in state employment." 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 provisions were unconstitutionally vague, the Court discussed the
detrimental 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 governmental infringement on the right of an institution"to
determine for itself on academic grounds who may teach" (internal quotation
|||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 Keyishian and on Justice Frankfurter's
concurrence in Sweezy, Justice Powell characterized academic freedom as
"[t]he freedom of a university 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. Significantly, the Court has never recognized that professors
possess 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 admonition 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.*fn15 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 time, however, the Court did not even
mention academic freedom as a relevant consideration in holding the statute
|||Taking all of the cases together, the best that can be said for Appellees'
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 jurisprudence 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 freedom solely on issues of institutional autonomy.
We therefore conclude that because the Act does not infringe the constitutional
rights of public employees in general, it also does not violate the rights
|||We reject the conclusion of the district court that Va. Code Ann. §§ 2.1-804
to -806, prohibiting state employees from accessing sexually explicit material
on computers owned or leased by the state except in conjunction with an
agency-approved research project, infringes upon the First Amendment rights
of state employees. We further reject 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.*fn18 Accordingly,
we reverse the judgment of the district court.
|||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 ultimately 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 subjects
related (and, to be honest, often unrelated) to the particular legal issues
before them. It is best that we do so infrequently, and ideally 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 dispassionate, reasoned analysis that
defines the Judiciary in our constitutional scheme. At points, what Judge
Wilkinson writes in his opinion might fairly be understood as more in the
nature of a general statement of personal viewpoint because he comments
on a range of matters 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 subjected 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 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 Commonwealth'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 constitutional
scrutiny." Post at 41. He ends his opinion with this same conclusion:
"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 passing, 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 protection that other public employees' speech should
|||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 discrete question of law as to whether the
particular speech limited by the statute we interpret is subject to the
protection of the First Amendment, 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 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 protection.
|||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 paragraph, he says not
that it is academic curiosity, but, instead, "research in socially
useful subjects such as medicine, biology, anatomy, psychology, 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 one
must assume includes not only research and writing, but also teaching. Post
|||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 intercourse," 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 photograph 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 professors, with no apparent pedagogical reason therefore, 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 Wilkinson's.
Third, even if one takes Judge Wilkinson to hold that it is "academic
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
|||David M. Rabban, Functional Analysis of "Individual" and "Institutional"
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 decisions 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 Recycling
Corp., 204 F.3d 149, 163 (4th Cir. 2000) (en banc) (Wilkinson, J.) ("This
case illustrates at heart the importance of judicial 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 employees. 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 newspaper 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 employee/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 personal interest, absent the most unusual
circumstances, a federal court is not the appropriate forum in which to
review the wisdom of a personnel decision. . . ." Id. at 147. (emphasis
added). Finally, and ironically, United States v. National Treasury Employees
Union, 513 U.S. 454 (1995), the authority relied on most extensively by
Judge Wilkinson, provides perhaps the most powerful indictment of Judge
Wilkinson's failure to address the employee/citizen distinction. There,
in striking down a law banning federal government employees from collecting
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 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
|||Thus, although the public concern/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 fundamental 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. Buncombe County Bd. of Education, 136 F.3d 364, 375,
379 (Motz, J., dissenting) ("Conceivably, the majority's holding is
grounded in misreading Connick to make the role in which a public employee
speaks determinative of whether her speech merits First Amendment protection.").
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 concern/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 altogether from Connick and Pickering the public employee/private
citizen 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 hearing
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 different as can be imagined from the teacher who wrote to the newspaper
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 responsibilities
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 identify incorrectly
the employee speech to be balanced, he incorrectly identifies the corresponding
state interest that would be balanced were 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 discussed 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
conclusion that one can reach upon thus properly balancing the correct interests
is that the Commonwealth's statute cannot stand -- a consequence that Judge
Wilkinson (even at the cost of analytical incredibility) 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 general
is of utmost importance, but also that there could well be legitimate research
that would entail, if not necessitate, access to the very kinds of material
to which access is prohibited by the Commonwealth's statute. And it is also
unquestionable that an individual professor'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 interests. And, obviously, neither can Judge Wilkinson, despite
his affirmance 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 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,
which Judge Wilkinson balances against the professors' interest in "academic
freedom," is wholly unattributable to the professor 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 environment.").
|||In other words, if one really believed that there is an actual constitutional
right to academic freedom and that it is a right of the importance 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 Wilkinson, post at 49-50 -- because
the state's interest in limiting individual 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. And 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
|||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 balancing, 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 balancing at all -- none at all.
The total of his reasoning on the Pickering 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 opposite
that which he wishes to reach -- either the validation of the Commonwealth'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 conclusion 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 administration, 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 conferral 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 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" Academic Freedom Under
the First Amendment, 53 Law & Contemp. Probs. 227, 229 (1990) ("Threats
to professors from university trustees 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
|||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 university governance") with id. (noting in
next sentence that "[t]he statute grants `agency heads' the authority
to approve these waivers"). The waiver provision may, in Judge Wilkinson's
view, save the Commonwealth'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 precedent 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 indistinguishable 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 writing does not bear the imprimatur of government. See post at 45.
Boring, of course, did not rest upon any such notion of official imprimatur.
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 secondary 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.*fn19
|||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, Functional Analysis of "Individual"
and "Institutional" Academic Freedom 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
|||I do not chronicle these analytic flaws in Judge Wilkinson's analysis
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 critical step of the established analysis, then he has
preordained his conclusion. If one places a thumb on the scale of the determinative
balance, then the resulting measure will be the foreseeable consequence
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
|||However, in reality, 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 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 support
necessary for its very existence. The Supreme Court has recognized as much
-- be it through wisdom, prescience, or simple duty to the Constitution
-- for over two hundred years now. It has recognized 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 limitations of the First Amendment
certainly no more, but just as certainly 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. Volume 2 of 2 HAMILTON, Senior Circuit
|||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 accomplished in their capacities as state employees.
Because the Appellees' access to, and dissemination of, sexually explicit
materials is accomplished in their capacities as state employees, the court
today correctly 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 balancing 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 public 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 unrelated to their work. Here the Commonwealth
has promoted this legitimate 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.
|||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."
Connick, 461 U.S. at 147; Robinson v. Balog, 160 F.3d 183, 187-89 (4th 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 dispositive 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 importance. 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 statute's application to academic inquiry as
a useful illustration of how the statute restricts material of public concern.*fn20
The 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.
|||To take the matter of content first, if the speech at issue were primarily
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 quotation 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 questionnaire soliciting the views of her colleagues.
She was then terminated because of her refusal to accept the transfer and
her insubordination 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
supervisor 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 matter 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 workplace 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 handled 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 challenged a statute that forbade federal employees
from accepting honoraria. 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 history,
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 workplace." 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. 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
"academic 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, economics, 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 subjects with broad social impact --
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.*fn21
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 restricting 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 conclusion
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." Rosenberger 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 Alstyne, 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."
|||Furthermore, state university professors work in the context of considerable
academic independence. The statute limits professors' ability 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, Functional 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
selection, 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).*fn22
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).*fn23
The interest of the state in a professor's research projects is simply not
as all-encompassing. 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 computers. 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 Commonwealth 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 prerogative -- 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 Commonwealth 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.
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.*fn24
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 "lascivious"
or whether it constituted the material's"dominant theme." Compare
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 invalidated 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
unconstitutionally vague and overbroad); Iota Xi Chapter of Sigma Chi Fraternity
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 university code forbids "`any intentional, unintentional,
physical, verbal, or nonverbal behavior that subjects an individual to an
intimidating, hostile 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, [epithets]
or slogans that infer negative connotations about the individual's racial
or ethnic affiliation.'" See Dambrot, 55 F.3d at 1182 (quoting the
Plan for Affirmative Action at Central Michigan University). A statute could
be passed that has similarly broad terms reaching 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 concern. The majority provides no way to distinguish the statute
at issue here from more intrusive future statutes. Under the majority's
rationale, 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 Amendment netherworld.
|||The Supreme Court has recognized that "the university is a traditional
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 universities 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 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 outside the majority's conception
of public concern. Discarding the ancient safeguards of the First Amendment
is no way to welcome this modern technological development.
|||Because the Act restricts speech on matters of public concern, we must
determine whether the burden on speech is justified by the governmental
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 desirability,
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
environment. While such abuses may be confined to a small minority of employees,
Virginia has an undisputed and substantial interest in preventing 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
|||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 Commonwealth's interest in the management of its own
educational system 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 considerably.
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 nonobscene information, it now restricts
a more limited range of material -- namely that which has as its dominant
theme the lascivious depiction 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 academic 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
governance. 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
primary 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, Academic 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 university 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 judgment
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 interest in the makeup of the curriculum
of the school." Id. at 370. We reasoned 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 structure. 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 traditional governance structure
for educational institutions, the hand of the federal judiciary should ordinarily
|||This is so for many reasons. It is well-established that federal courts
have no business acting as surrogate university deans. Our "reluctance
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 faculties 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]courts 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 academic
institution will invade the freedoms of its own constituent members. In
fact, the record reflects just the opposite -- several professors have received
research waivers from their colleges or universities upon request. We have
not been made aware of any examples of professors whose requests for exemptions
|||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 opportunities 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
|||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 misadventures 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 political 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 administered within the traditional structure of university governance,
I do not believe the Virginia statute contravenes the Constitution.
|||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.,
concurring), 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 consequence 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
perspective 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 possible 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 society," ante
at 25 (Luttig, J., concurring).
|||But the Supreme Court itself has emphasized that"academic freedom
. . . 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 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 academic proposals, but rejection, not suppression,
is the constitutionally tested course. In all events, for speech to function
usefully and creatively 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 dismissal is something we shall come
to regret. I recognize that academic 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 leadership to understand what is misguided and naive about
expert opinion and what is sound and wise. I offer no apology for believing,
along with the Supreme Court in Keyishian, Sweezy, and Rosenberger, 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, industrialists, farmers, entrepreneurs,
social workers, religious leaders, parents 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,
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 employee'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 concern" doctrine, I respectfully
|||In Connick, the Supreme Court held that, as a threshold matter, if a public
employee's speech "cannot be fairly characterized as constituting 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
|||Indeed, the facts of Connick belie this suggestion. Sheila Myers, an Assistant
District Attorney, was discharged for distributing a questionnaire to the
other attorneys in her office. In general, Myers' questionnaire 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 her fellow
attorneys "ever feel pressured to work in political campaigns 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 precedent.
|||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 (classrooms) 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 personnel grievance,'" that would not be of public concern.
|||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 personal 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 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 concerned 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
|||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)).
|||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 prohibiting 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 public 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. 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 unrelated 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 suggests that the role of the speaker
is a factor in a public concern analysis. 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 analysis, 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 Boring, the plaintiff,
a high school teacher, was transferred by her principal 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 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, however,
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 cannot 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., dissenting) ("Because the majority
does not attempt to explicitly hold that the role in which an employee speaks
is determinative [or overrule prior precedent], this reasoning must not
be the basis for its conclusion that Boring's speech does not relate to
a matter of public concern."). Boring therefore does not compel a finding
that the plaintiffs' speech is not on a matter of public concern, merely
because the plaintiffs' speech occurs in their role as employees.*fn25
|||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." Connick, 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 absorbing interest to mankind through the
ages; it is one of the vital problems 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 university 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 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.
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 definition
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 specifically
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 abnormal 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 communications,
makes the speech of special public significance. In the information age,
electronic communications may be the most important forum for accessing
and discussing topics of concern to the community. This court should be
wary of allowing the State to regulate this important medium of communication
without requiring a legitimate justification for the regulation.
|||Because the plaintiffs' speech is on a matter of public concern, we must
balance the plaintiffs' interests in speaking on a matter of public concern
against "the interest of the State, as an employer, in promoting 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 decision 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 speakers." 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 disciplinary
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 outweighed by that expression's
`necessary impact on the actual operation' 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, discussing,
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 material available to "potential audiences"
of the plaintiffs' speech, restricting "the public's right to read
and hear what the employees 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)
|||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 Commonwealth's asserted interests,
the under and overinclusiveness of the Act is fatal to its constitutionality.
|||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, however, cannot be the basis for
the Act's specific prohibition on accessing sexually explicit material on
|||First, employee efficiency is undermined by any activities that distract
an employee from her job-related duties, not just unauthorized Internet
use. Reading newspapers, listening to the radio, chatting with co-workers,
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 accessing 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 computers to send
non-work related e-mail, as well as access news services, chat rooms, sports
websites, and other material unrelated to 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 professor 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
|||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 workplace. Thus, a state
employee may use his own computer to access patently pornographic pictures
around his students or colleagues without violating the Act. The Commonwealth
does not provide any justification 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.
|||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 pornographic material that the Act was intended
to address. The Commonwealth 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 with a bona
fide, agency-approved research project or other agencyapproved 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 enforcement. 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
|||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
|||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 selfcensorship, ultimately to the detriment
of the public in the form of a banal and lifeless discourse on issues of
|||The under and overinclusiveness of the Act shows the"obvious lack
of `fit' between the government's purported interest and the 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 allegedly 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 Government." NTEU, 513 U.S. at
468 (internal quotation omitted). Consequently, the Act does not survive
the heightened scrutiny applied to statutory restrictions on employee speech.
|||For the foregoing reasons, I would affirm the judgment of the district
|||*fn1 Appellees named George Allen, then
Governor of Virginia, as defendant. Subsequently, James S. Gilmore, III
was elected Governor and was substituted as a party.
|||*fn2 Another provision of the Act defines
"agency" and "information infrastructure": "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 systems, and telephone networks. Va. Code Ann. § 2.1-804 (emphasis
|||*fn3 Section 18.2-390 provides in pertinent
part: (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 uncovered 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 simulated flagellation
or torture by or upon a person who is nude or clad in undergarments, a mask
or bizarre costume, or the condition of being fettered, bound or otherwise
physically restrained on the part of one so clothed. Va. Code Ann. § 18.2-390(2)
to -390(5) (Michie 1996) (emphasis omitted).
|||*fn4 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 administration official determined that prior approval was not necessary
to access such materials.
|||*fn5 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 circumstances, 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.
|||*fn6 In this respect, restrictions on
speech by public employees in their capacity as employees are analogous
to restrictions on governmentfunded 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 permissibly 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 control 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 matters of public concern. 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 unnecessary 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 content
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
|||*fn7 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 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.
|||*fn8 For ease of reference, we will
refer to public institutions of higher learning generally as "universities."
This designation includes neither private 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 freedom
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 determination, 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.
|||*fn9 Appellees assert that the Act infringes
on academic freedom by hindering professors' ability to perform their employment
duties, particularly 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 without 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 Victorian poets is restricted by
the policy. Appellee Paul Smith's website has been censored as a result
of the Act. And, appellees Dana Heller, Bernard H. Levin, and Brian J. Delaney
maintained that they were hesitant to continue their Internet research of
various aspects of human sexuality.
|||*fn10 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.
|||*fn11 This freedom from lay interference,
however, did not mean that academics were immune from the professional judgments
of their peers. See Byrne, supra, at 277-78.
|||*fn12 In view of this history, we
do not doubt that, as a matter of professional practice, university professors
in fact possess the type of academic freedom asserted by Appellees. Indeed,
the claim of an academic institution 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 institution 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 practice constitutional status. See Minnesota State Bd.
for Community Colleges 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 validity as a matter of constitutional
|||*fn13 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, Functional 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 potential 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 constitutionally be precluded from accessing the very same materials.
Such a result is manifestly at odds with a constitutional system premised
|||*fn14 Justice Frankfurter's reasoning,
if controlling, would dictate that we uphold the Act on the basis that it
does not infringe the academic freedom 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 Frankfurter's understanding of academic freedom.
|||*fn15 Interestingly, several concurring
justices criticized the discussion of academic freedom in the majority opinion.
Justice Black rejected the discussion 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 contractual 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 discussed 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
|||*fn16 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.
|||*fn17 In reaching this conclusion,
we note that the Act places the authority to approve or disapprove research
projects with the agency, here the university. Thus, the Act leaves decisions
concerning subjects of faculty research in the hands of the institution.
And, while a denial of an application 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.
|||*fn18 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 cannot be overbroad). Further, the Act is not unconstitutionally
vague because it gives a "person of ordinary intelligence a reasonable
opportunity to know what is prohibited." Grayned v. City of Rockford,
408 U.S. 104, 108 (1972).
|||*fn19 Elsewhere in his concurrence,
when the need is different, Judge Wilkinson 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.
|||*fn20 Appellees here are public university
professors who raised both facial and as-applied challenges to the statute.
To prevail on their facial challenge, 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.
|||*fn21 As such, a statute of general
applicability differs from individual disputes 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).
|||*fn22 It should go without saying
that I adhere to my vote and views in Boring 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. Boring 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 education. 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.
|||*fn23 In his concurring opinion, my
brother Luttig thus wrongly asserts that "Boring, of course, did not
rest upon any such notion of official imprimatur." Ante at 36. Indeed,
courts dealing with the question of First Amendment rights concerning curriculum
choices have limited their holdings to curriculum matters in light of the
distinctly institutional character of curriculum 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).
|||*fn24 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 different context between its hypothetical
and the present case. Assistant district 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 employment matter that (academic or otherwise) is less likely
to involve matters of public concern than a broad statutory restriction
|||*fn25 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.
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