Constitutional Law, and the Internet
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:
essence of Plaintiffs' claim is that they are entitled to access sexually
explicit material in their capacity as state employees.
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...."
in the Spring 1999 Edition of In Brief