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Sex, Constitutional Law, and the Internet

Appeals by college and university faculty are forcing American courts to reconcile the Bill of Rights with the complexities of the Information Age.

A suit that prompted the decision by a federal appellate court in Urofsky v. Gilmore is the most recent--and likely most prominent--example of such actions.

At issue in the case was a Virginia statute that purports to limit access to the World Wide Web by state employees. Specifically, the law prohibits such an employee from using publicly-owned computer equipment to "access, download, print or store any information, infrastructure files or services having sexually explicit content" unless such activity is "required in conjunction with a bona fide, agency-approved research project" or similar enterprise approved by an appropriate official.

A group of professors at various public colleges and universities in Virginia brought suit against the state, alleging that the law violated their right of free expression under the First Amendment to the US Constitution.

One alleged that he had declined to assign an on-line research project on indecency law out of fear that he would be unable to correct student work without violating the measure. Another claimed he was restrained from researching sexually explicit works by Victorian poets.

Nevertheless, the US Court of Appeals for the Fourth Circuit upheld the statute. The court acknowledged that while citizens do not surrender all their First Amendment rights simply because they are public employees, "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."

The court was skeptical of the supposed importance of the instructors' ability to view sex-oriented sites without obtaining prior approval:

"The essence of Plaintiffs' claim is that they are entitled to access sexually explicit material in their capacity as state employees.

"Because Plaintiffs assert only an infringement on the manner in which they perform their work as state employees, they cannot demonstrate that the speech to which they claim entitlement would be made in their capacity as citizens speaking on matters of public concern."

According to the court, then, the statute passed Constitutional muster because it set out to regulate "the speech of individuals speaking in their capacity as Commonwealth employees, not as citizens...."

Published in the Spring 1999 Edition of In Brief

Questions or comments?
Contact Lee Combs @ 480.731.8878

Maricopa Community Colleges
Office of General Counsel
2411 West 14th Street
Tempe, AZ 85281-6942
480.731.8877 / 480.731.8890 fax

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