Appeals Court Reverses District Court in Urofsky v. Virginia

(February 12, 1999) The U.S. Court of Appeals for the Fourth Circuit reversed a trial court decision which had struck down a Virginia law which barred most state employees from using their work computers to view porn. The ACLU had successfully argued in the trial court that the law violated First Amendment free speech rights.

Six college professors employed by public schools in Virginia brought a suit 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.

The February 10 opinion stated that the analysis for free speech rights of public employees differs from that for citizens in general. The Court wrote:

A determination of whether a restriction imposed on a public employee's speech is violative of 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.'" ... This balancing involves an inquiry first into whether the speech at issue touches upon a matter of public concern, and, if so, 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. ... Speech involves a matter of public concern when it affects a social, political, or other interest of a community.

(citations omitted)

The Court concluded that viewing sexually explicit matter at work does not constitute "a matter of public concern" and hence, the speech may be restricted.

The Court also expounded a rationale for its decision. "It cannot be doubted that in order to pursue its legitimate goals effectively, the Commonwealth 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."

"Attorney General Earley is very pleased with the decision. All three judges concurred with the state's argument that state employees on state time with state resources cannot download pornography on the Internet, and to regulate such activity is not a violation of First Amendment rights," said David Botkins, press secretary to Virginia Attorney General Mark Earley.

The plaintiffs now have three options. They can accept the decision of the three judge panel. They can ask the entire Fourth Circuit to review the decision en banc. Or third, they can file a petition for writ of certiorari with the U.S. Supreme Court (essentially, an appeal). No action has yet been taken.

David Botkins, who spoke with Tech Law Journal after the decision was handed down on Wednesday, February 10, said that "the Fourth Circuit is one of the most thorough and deliberative Circuits in the country."

This decision brings to an end the winning streak of the ACLU and other groups which have successfully challenged the constitutionality of several state restrictions on Internet use on First Amendment grounds. However, each case has been based on a different set of facts. This is the only case which deals with free speech rights of state employees working on state time. The Court wrote that "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 state of Virginia has long been known as the "Old Dominion." Recently, because of the influx of high tech companies into northern Virginia, some are calling it the "Silicon Dominion."

"This decision is not anti-high-tech, or anti-Internet," said David Botkins. "Attorney General Early is a major advocate of Virginia's significance in the growing high tech and Internet industry and supports Governor Gilmore's efforts to pass legislation that is high tech friendly. This case is very narrow and controlled ... It is not in any way meant to be censorship or muzzling in of First Amendment rights."

"A lot of high tech industries are locating in Virginia because it is business friendly ... and high tech friendly," said Botkins, citing such factors as low taxes.

Tech Law Journal's Congressional Scorecard 1998 study found that some of the legislators who are most supportive of high tech in Congress are from Virginia. These include Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA), both of whom made the House Top Ten List. Also, the House Commerce Committee has consistently approved the bills that were a key part of the high tech agenda in the 105th Congress, such as the WIPO bill, the Securities Litigation Uniform Standards Act, and the Internet Tax Freedom Act. It is chaired by Rep. Tom Bliley (R-VA).

The opinion was written by William Wilkins, and joined by Michael Luttig and Clyde Hamilton. Hamilton also wrote a concurring opinion. All three judges on the panel are Republican appointees. Trial Court judge whom they reversed, Leonie Brinkema, was appointed by Bill Clinton.

Hamilton was nominated for the District Court in South Carolina in 1981 by Ronald Reagan, and elevated to the Appeals Court in 1991 by George Bush. William Wilkins was nominated for the District Court in South Carolina in 1981 by Ronald Reagan, and elevated to the Court of Appeals in 1986. Both men's nominations were supported by Sen. Strom Thurmond (R-SC). Wilkins also served briefly as a legislative assistant to Sen. Thurmond.

Michael Luttig was appointed by George Bush. Immediately prior to taking office, he headed the prestigious and powerful Office of Legal Counsel (OLC) at the Department of Justice. Other former OLC chiefs include William Rehnquist and Antonin Scalia. Luttig's last major assignment at OLC was to prepare Clarence Thomas for his Senate confirmation hearings, and to coordinate Department of Justice efforts to win his confirmation.