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Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)

The Commonwealth of Virginia passed a statute that restricts the ability of state employees to access sexually explicit material on state-owned or state-leased computers. Several Virginia public college and university professors challenged the law, alleging that it interferes with their academic freedom to research and teach. A federal district court ruled in favor of the professors, and the Commonwealth appealed to the Fourth Circuit. AAUP and The Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia filed a friend-of-the-court brief with the Fourth Circuit in June 1998, arguing that the law violates the academic freedom of professors by inhibiting their use of the Internet as a teaching and research tool. A three-judge panel of the Fourth Circuit ruled in February 1999 that the state law that prohibits the use of state-owned computers to view sexually explicit material does not violate the First Amendment. That court decision failed to address the academic freedom concerns of faculty members in higher education institutions. In early June the Fourth Circuit granted the professors' motion for a hearing before the full court. In June 2000 the Fourth Circuit, in a 8-4 decision, ruled 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." In so doing, the majority of the court asserted that academic freedom for individual professors is merely a professional norm, not a constitutional right. As Chief Judge Wilkinson, who concurred in the judgment only (but dissented from the majority's reasoning) wrote: "the majority accords the speech and research of state employees, including those in universities, no First Amendment protection whatsoever." He continued: "I offer no apology for believing, along with the Supreme Court . . . in the significant contribution made to society by our colleges and universities. . . . I fear the court forgets that freedom of speech belongs to all Americans and that the threat to the expression of one sector of society will soon enough become a danger to the liberty of all." The opinion is available online at http://bulk.resource.org/courts.gov/c/F3/216/216.F3d.401.-97-701-.98-1481.html. In September 2000 the professors filed a petition for writ of certiorari with the United States Supreme Court, seeking that Court's review of the Fourth Circuit decision. In support of that petition, the AAUP and The Thomas Jefferson Center for Free Expression filed an amicus brief (.pdf) in November 2000. The Association and The Thomas Jefferson Center for Free Expression argued in their brief that: (1) the Fourth Circuit majority decision conflicted with the Supreme Court's and other circuit courts' rulings that clearly recognize academic freedom as an individual right of professors; (2) the Fourth Circuit majority opinion significantly misconstrued the Supreme Court's test on "matters of public concern" as well as conflicted with at least five courts of appeals that recognize the public interest of employee speech; and (3) the Fourth Circuit majority's approval of the Virginia statute's licensing scheme contravened the Supreme Court's First Amendment rulings because the law discriminates based on content and constitutes an impermissible prior restraint.

Status: In January 2001 the U.S. Supreme Court declined to hear the case.