Recently Deceased: The First Amendment in Virginia

The free flow of information and ideas is central to academic freedom. A professor of Victorian literature explains how the state can sometimes control access to this flow.

By Terry L. Meyers

That may be true in most states and for most Americans. But it is no longer true in Virginia, where I teach at the College of William and Mary and do research on Victorian poetry, concentrating on Algernon Charles Swinburne (1837–1909), a bad boy of British poetry, who in the 1860s turned out some racy stuff. To call up Swinburne’s more explicit poems on my state-leased office computer, I am required by Virginia law to get permission from the state (in the person of its agent, William and Mary’s dean of the faculty of arts and sciences). Early last year, the U.S. Supreme Court declined to review a case, in which I was a plaintiff, challenging Virginia’s restrictive law, thus leaving it in effect.

How could this erosion of the First Amendment come about in Virginia of all places? Isn’t Virginia the state where Thomas Jefferson and George Mason articulated the rights basic to free inquiry? And isn’t it striving these days to attract computer and Internet enterprises, which depend on the unshackled exchange of ideas—in other words, on the free exercise of First Amendment rights?

Virginia’s assault on the First Amendment began in a fit of virtual virtue on the part of the Commonwealth’s General Assembly. In 1996 the assembly unanimously passed a bill, signed into law by then-governor George Allen, forbidding state employees to access sexually explicit material on state-owned computers without written permission from their agency’s head. The law might have been aimed at stopping a parts clerk in the Virginia Department of Transportation from using state resources to surf X-rated sites on state time (though surely that could have been managed with a simple statement of office policy). But, as written, the law applies to all state employees except the state police. Why police officers alone need unsupervised access to such material is not clear. The consequence, presumably unintended, is that the law covers many state employees whose professional responsibilities require them to deal with sexually explicit material. Here’s what the law says, in main:

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 infrastructure 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.

“Sexually explicit content” means 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 excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, coprophilia, urophilia, or fetishism.

The requirement that agency approvals be kept in a public file changes Virginia’s Freedom of Information Act, meant as a check on government duplicity, into a frigid blast on research into matters of a sexual sort.

Legal Defeat

Then the U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, and long steeped in the local history of states’ rights, affirmed the constitutionality of the law. The U.S. Supreme Court declined to accept an appeal mounted by the ACLU. In Virginia, and indeed in the whole of the fourth circuit’s domain, the First Amendment has been trumped by employment law. As the fourth circuit put it, “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.”

The fourth circuit was also skeptical of academic freedom itself, at least as individual professors might think they can exercise it: “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.”

For the fourth circuit, academic freedom, if it exists, rests not in the individual, but in the institution: “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.”

The court did recognize that a research proposal being turned down by the “institution” under Virginia law might raise constitutional questions. What is troubling is the likelihood that by “institution” the court understands “administration” or “board of trustees,” not faculty. And since pressure on faculty members to think and write in orthodox ways comes as often from administrators and trustees as from the public, academic freedom suddenly seems weakened.

The fourth circuit’s chief judge, J. Harvie Wilkinson III, concurred in the majority opinion, but he acknowledged the importance of academic freedom and detected the law’s deleterious consequences:

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.” . . . These topics undeniably touch on matters of public concern.

Impossible Hurdles

Ironies aside, what is it like to work professionally under an attenuated First Amendment? Let me count some of the ways I have had to seek and await the state’s permission to do what I had thought the state paid me to do, read and write in my field.

When I began to think about this essay on how the First Amendment stands (or sags) for a Swinburne scholar in Virginia, I determined that I would be entirely above board about it and try to follow the law in word and spirit, no matter how absurd it might appear. I knew I would need state permission to draft the article on my office computer, because I wanted to include some verses by Swinburne that the law says I’m not allowed to read (or even type) without the state’s permission, as granted through my dean. I duly sought (and received) the state’s permission. Then I realized that when the time came to submit the article for publication by way of e-mail, a common practice these days, I would need permission for that as well. Permission granted.

It took time and interrupted the flow of my thought and writing to submit my various requests for state approval and to await permission. At one point, when I realized that I would also need permission to send my draft to colleagues in several disciplines, including law, things got complicated. The dean was out of town, beyond e-mail even. I forwarded my request to the provost, who sought legal advice and the next day asked that I circulate my draft by “regular mail, not e-mail.” The college’s counsel, the provost told me, was “uncomfortable” about my request. When I asked her informally, she could not tell me what had disturbed his comfort.

I twice wrote again, asking if the implication was that no drafts of any sort should be circulated by e-mail or whether the explicit poetry by Swinburne I was quoting in my essay singled it out. I also asked about any legal distinction between writing on paper and writing online. And finally I asked whether her “request” was really a formal denial of permission. Since I had reached the point at which my thinking and writing would benefit from timely criticism and advice, I explained that I intended to circulate my draft by e-mail, but would read carefully what the college’s counsel had to say if his comments arrived promptly. When I received no response, I sent the draft from my computer and turned myself in. So far no sanctions, but, of course, it was never clear to me whether I had been denied permission.

The law impedes me in other ways as well. Last fall, I discovered in backing up my hard disk to a college server that in the course of the ACLU lawsuit and before the law was applied, I had downloaded some lines from Swinburne to send to reporters who wanted an example of what I could not read without permission. Now, I realized, I needed the state’s permission to have those on my office computer and on the college’s server. In another instance, as I was annotating an unpublished letter by Swinburne, I needed permission to add a footnote containing some of his unpublished flagellation poetry.

One day, as I was checking eBay, the Internet trading site, to see what Swinburneiana might be up for auction, a picture popped onto the screen, showing a Swinburne book illustrated on the fore-edge with a painting of three ladies doing lascivious things to each other. I had broken the law by seeing that picture and immediately reported my involuntary transgression. Fortunately, no charges were brought—at least not yet—and I was given permission to track the auction. In the spirit of the law, I tried each day to avert my eyes from the picture as I scrolled down to check the number of possibly interested bidders. When a discussion on the Listserv “Victoria” turned to Tennyson’s eroticism, I wanted to participate by quoting several lines in his “Lucretius” that describe a nymph’s nipple to suggest her sexual arousal. I needed permission again.

More recently, I heard of a novel, Springtime in Siena, published online by an author I admire. I thought I would like to read it. Full disclosure: the author is my brother Steven Key Meyers, whose works are, I have to admit, sexually explicit. Permission sought. Response delayed about ten days (that was when the dean was out of town), but permission finally given.

Last fall, as I started a research leave to work on Swinburne, I got permission in advance in case I wanted to quote some of Swinburne’s poetry or download it from the Virtual Library of Virginia, which includes a database containing most English poetry up to about 1900. Some of that poetry, it has been alleged, includes naughty bits. Chaucer’s “The Miller’s Tale,” for example. Or, especially, the often hilarious but certainly lascivious oeuvre of the Earl of Rochester.

Another irony. If I’m forbidden by state law from reading Rochester online without permission, how is it that the state-supported Virtual Library of Virginia can provide it online without having sought permission? Some of the users of VIVA are, to be sure, students, exempt from the law, and some are faculty at private colleges and hence not state employees. But lascivious works of art are being kept on and transmitted through state computers by a state agency that, I’ve been told, does not itself have permission to do that. Something needs to be done. And when legislators realize that these same works are available in state libraries in books owned by the state, maybe someone will want to do something about that, too.

The University of Virginia may be a serial offender, in fact, as home not only to VIVA, but to the Electronic Text Service, which panders to the perverse in at least two instances I can (with state permission, of course) point to. One is an obscene illustration to Huckleberry Finn in a salesman’s prospectus reproduced in an archive, “Mark Twain in His Times.” The other is a poem by Dante Gabriel Rossetti in the “Rossetti Archive.” “Nuptial Sleep,” which I once got permission to read online, was denounced in 1871 by Robert Buchanan:

Here is a full-grown man, presumably intelligent and cultivated, putting on record for other full-grown men to read, the most secret mysteries of sexual connection, and that with so sickening a desire to reproduce the sensual mood, so careful a choice of epithet to convey mere animal sensations, that we merely shudder at the shameless nakedness. We are no purists in such matters. We hold the sensual part of our nature to be as holy as the spiritual or intellectual part, and we believe that such things must find their equivalent in all; but it is neither poetic, nor manly, nor even human, to obtrude such things as the themes of whole poems. It is simply nasty.

Some might think the state of Virginia to be at once a panderer and a hypocrite.

No Right to Privacy

No Expectation of Privacy. No user should have any expectation of privacy in any message, file, image or data created, sent, retrieved or received by use of the Commonwealth’s equipment and/or access. Agencies have a right to monitor any and all aspects of their computer systems including, but not limited to, sites, instant messaging systems, chat groups, or news groups visited by agency users, material downloaded or uploaded by agency users, and e-mail sent or received by agency users. Such monitoring may occur at any time, without notice, and without the user’s permission. In addition, electronic records may be subject to the Freedom of Information Act (FOIA) and, therefore, available for public distribution.

Prohibited Activities. Certain activities are prohibited when using the Internet or electronic communications. These include, but are not limited to accessing, downloading, printing or storing information with sexually explicit content as prohibited by law.

Some might detect in these words a faintly chilling effect. Others might feel the frost of a cold front blasting in from state bureaucrats in the Capital of the Confederacy. To be fair, the wording simply asserts an agency’s right to a monitoring program that any dictator would envy; it does not mandate it. But, in any case, no provision is mentioned for anyone to apply for an exemption.

William and Mary’s initial local implementation of the state human resource policy came, with a symbolism profoundly appropriate to its totalitarian nature, amid the confusion and fear of September 11, 2001. The college abruptly expanded the Internet restriction beyond employees to students and to citizens using library computers: “This policy applies to all state employees, including those exempt from coverage of the Virginia Personnel Act and any nonemployees who may be permitted access to our Internet or electronic communication systems.”

Suddenly, students’e-mail, not just that of faculty members, was susceptible to monitoring. And in parroting state policy that “electronic records may also be subject to the Freedom of Information Act and, therefore, may be available for public distribution,” the college at a stroke seemed to threaten all kinds of private records from grades and library borrowings to message boards and chat rooms set up in connection with classes or research projects. The college’s implementation also totally ignored the limited but existing exemptions possible for faculty and other employees.

I must be fair and must make it clear that after only four weeks (instantaneously, in academic time), the provost did back the college off its initial approach, though in language still rather frosty: “I . . . want to make it clear that, in accordance with Virginia law . . . , faculty and staff may continue to access files, materials or services with sexually explicit content, provided that (1) it is for the purpose of research, and (2) they have received approval in advance and in writing from the provost, vice president, dean or director, as appropriate.” Ironically, her rephrasing of the state’s limitations on access to sexually explicit material—it is permissible only “for the purpose of research”—omits the law’s allowance for “other agency-approved undertaking[s].”

I mentioned that I sought the state’s permission to draft this essay on my office computer. That’s because I wanted to illustrate what I need permission to read online with several excerpts from Swinburne’s “Anactoria” (which deals with lesbianism and sadism). To do this, I needed permission to download the poem from the Virtual Library of Virginia and have it on my computer screen and hard disk. Even though I made it clear that, strictly speaking, this essay is not part of “a bona fide, agency-approved research project or other agency-approved undertaking,” the dean did grant permission.

I am about to quote lines that provoked Swinburne’s Victorian critics to moral outrage (he answered by asking “whether or not the first and last requisite of art is to give no offence, whether or not all that cannot be lisped in the nursery or fingered in the schoolroom is therefore to be cast out of the library”). But first, I must caution any faculty at Virginia’s state universities who are reading these words online in their offices: you are required by law to obtain the state’s permission to read further.

Here, then, is an example of what the First Amendment does not cover for Virginia faculty, three excerpts from Swinburne’s dramatic monologue where Sappho speaks angrily of Anactoria’s abandoning her:

I would my love could kill thee; I am satiated
With seeing thee live, and fain would have thee dead.
I would earth had thy body as fruit to eat,
I would find grievous ways to have thee slain,
Intense device, and superflux of pain;
Vex thee with amorous agonies, and shake
Life at thy lips, and leave it there to ache;
Strain out thy soul with pangs too soft to kill,
Intolerable interludes, and infinite ill;
Relapse and reluctation of the breath,
Dumb tunes and shuddering semitones of death.
I am weary of all thy words and soft strange ways,
Of all love’s fiery nights and all his days,
And all the broken kisses salt as brine
That shuddering lips make moist with waterish wine,
And eyes the bluer for All those hidden hours
That pleasure fills with tears and feeds from flowers,
Fierce at the heart with fire that half comes through,
But all the flowerlike white stained round with blue;

Ah that my lips were tuneless lips, but pressed
To the bruised blossom of thy scourged white breast!
Ah that my mouth for Muses’ milk were fed
On the sweet blood thy sweet small wounds had bled!
That with my tongue I felt them, and could taste

The faint flakes from thy bosom to the waist!
That I could drink thy veins as wine, and eat
Thy breasts like honey! that from face to feet
Thy body were abolished and consumed,
And in my flesh thy very flesh entombed!

O that
I durst crush thee out of life with love, and die,
Die of thy pain and my delight, and be
Mixed with thy blood and molten into thee!
Would I not plague thee dying overmuch?
Would I not hurt thee perfectly? not touch
Thy pores of sense with torture, and make bright
Thine eyes with bloodlike tears and grievous light?
Strike pang from pang as note is struck from note,
Catch the sob’s middle music in thy throat,
Take thy limbs living, and new-mould with these
A lyre of many faultless agonies?
Feed thee with fever and famine and fine drouth,
With perfect pangs convulse thy perfect mouth,
Make thy life shudder in thee and burn afresh,
And wring thy very spirit through the flesh?
Cruel? but love makes all that love him well
As wise as heaven and crueller than hell.

The final count of permissions I have had to get since the law went into effect stands at twelve. Eleven of my requests were granted, most of them speedily. The exception, about which I am still not clear, was whether I had permission to circulate a draft of my essay by e-mail. All of the requests concerned my professional work on Victorian poetry, except for the perhaps marginal request concerning the eBay auction and my desire to read my brother’s novel.

So my experience in trying assiduously to work within the law persuades me that the First Amendment in Virginia is dead. I miss it already. It was a good amendment. And sometimes, when I get nostalgic, I just murmur to myself George Mason’s now-hollow assurances in the constitution of the state of Virginia “that the freedoms of speech and of the press are among the great bulwarks of liberty and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; [and] that the General Assembly shall not pass any law abridging the freedom of speech or of the press.”

Terry Meyers, professor of English at the College of William and Mary, is the author of The Sexual Tensions of William Sharp: A Study of the Birth of Fiona MacLeod. His edition of A. C. Swinburne’s correspondence is forthcoming in 2004.

 Printer-Friendly Page