Virginia Internet case hailed as ‘significant’ for free speech on the Internet

Friday, March 6, 1998

Internet speech remains free in the state of Virginia, thanks to a recent court decision striking down a law that limited state-employee access to information.

Last week in Urofsky v. Allen, a federal district court found unconstitutional a law that said “absent prior approval, no state employee could use a work computer to “access, download, print or store any information infrastructure files or services having sexually explicit content.”

State officials had argued the law was necessary (1) to promote workplace efficiency and (2) to prevent sexual-harassment claims based on charges of a hostile workplace environment.

Six professors, employed by state institutions and represented by the ACLU, contended the law restricted their free-speech rights on a number of topics unrelated to traditional pornographic images.

History professor Melvin Urofsky, for example, has been hesitant to assign his students on-line research projects concerning Internet “decency” laws for fear of violating the state statute. English professor Terry J. Meyers feared the legislation would prevent Net access to sexually explicit poetry for class discussion about the “fleshy school” of Victorian poets. Contemporary American Literature professor Dana Heller stopped using the Internet for research on gay and lesbian studies.

The court sided with the professors, noting that the law’s “broad definition of ‘sexually explicit’ content would encompass 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.”

Before the court began its analysis, it emphasized the First Amendment interests of both state employees and the general public:

“At stake is the ability of more than 101,000 public employees at all levels of state government to read, research, and discuss sexually explicit topics within their areas of expertise. … Equally at stake is the right of the public to receive and benefit from the speech of state employees on matters within their areas of expertise.”

The court sympathized with the government’s attempt to prevent employees from using the Internet for inappropriate purposes during work hours, stating: “Employees viewing sexual images unrelated to their work are neglecting the duties they were hired to perform, causing a loss of productivity.”

However, the Virginia law was not a constitutional method of addressing this valid concern, according to the court, because: (1) the law is underinclusive; (2) the law is overinclusive; and (3) the requirement of prior approval burdens speech.

A law is underinclusive if it restricts speech that communicates a particular message while allowing other harmful messages. The danger of an underinclusive law is that it discriminates based on viewpoint. The judge criticized the Virginia law because it failed to address other areas that create workplace disruption, including “on-line video games, news services, stock quotes and financial information, chat rooms, and shopping sites.”

The law also did not address employees engaged in sending personal e-mail on the job.

According to Robert O’Neil, founder of The Thomas Jefferson Center for the Protection of Free Expression, the law’s failure to address these other topics shows it was a “content-based attack upon messages of a sexual nature.”

“If lawmakers wanted to prohibit state employees from goofing off on the Interent on the job, they could have provided that state computers are to be used only for state business. This would have been a content-neutral regulation,” O’Neil said.

The court also found the Virginia Internet law overinclusive, because it “interferes with countless, work-related endeavors by state employees dealing with sexuality and the human body.” An overinclusive law prohibits speech that should be protected in addition to speech that may be regulated.

Finally, the court also noted the law’s requirement of “prior approval” gives too much discretion to state officials in determining what material can be accessed. The government had argued that any burden on free speech was tempered by the provision in the law that says a state employee can access even “sexually explicit” material with “prior approval.” However, the law failed to provide any standards to guide state officials in deciding whether to grant such approval.

“The Supreme Court has held that such grants of unbridled discretion can be expected to invite arbitrary enforcement and to chill the free exercise of speech rights,” wrote the court.

Free-speech advocates say the Urofsky case is an important one. Kent Willis, executive director of the Virginia ACLU, says that “the decision sends a clear message to state legislators: ‘Hands off the Internet.’ This decision should prevent other states from enacting similar laws.

“Even though this case is somewhat unique in addressing state employees using state computers, the decision is still very important. The law on the Internet is so new that every ruling in this area will have a significant effect,” he says.

O’Neil, who testified against the law when it was first proposed, also sees positive, far-ranging effects from the decision: “First of all, this case stands as further evidence of the principle that speech on the Internet is fully protected,” he says. “Internet speech deserves greater protection than both the cable and broadcast media and must be judged by the standards applied in the print context.

“The decision stops dead in its tracks the notion that state officials can leverage control of messages simply because they have ownership of hardware.”