The First Amendment and the Internet:
Urofsky v. Allen, 1998 U.S. Dist. LEXIS 2139 E.D. Va. Feb. 26, 1998
In Urofsky, the District Court determined that a Virginia statute which restricted access of state employees to sexually explicit material on state owned or leased computers violated the First and Fourteenth Amendments
The plaintiffs were professors as Virginia state colleges and universities and alleged that the statute unconstitutionally interfered with their research and teaching. The statute allowed access to restricted material but only after prior written approval by the appropriate state agency.
In reviewing the constitutionality of the statute, the court applied a balancing test articulated by the Supreme Court in which the interests of government employees commenting on matters of public concern were balanced with the interests of the State in promoting the efficiency of the public services it performed through its employees. This balancing test applied to speech within and outside of the workplace. Furthermore, because the statute was a prospective deterrent to a broad category of speech by a significant number of potential speakers, the State had a higher burden to justify its restriction.
The court found the statute was both under inclusive and over conclusive in restricting speech. The statute broadly defined sexually explicit content so as to include speech that would not enjoy First Amendment protection and speech that involved research and debate on sexual themes in art, literature, history and the law which would enjoy First Amendment protection.
In applying this balancing test, the court looked at the interests of state employees and potential audiences, the State’s interests in workplace efficiency and avoiding hostile work environment claims, the under inclusiveness and over inclusiveness of the statute, the requirement of prior approval, and the existence of content neutral alternatives. The court found that the statute restricted research and debate on sexually explicit topics by academics in fields such as art, literature, medicine and the law. Furthermore, the public had a right to receive and benefit from the speech of state employees on matters within their expertise.
Moreover, the court determined that the statute did not fit with its interests in preserving the workplace efficiency and avoiding hostile work environment claims as it was fatally under inclusive and over inclusive. In attempting to preserve workplace safety, the statute was under inclusive in that it only addressed sexually explicit material on computers but did not limit access to online video games or news services which could equally disrupt workplace efficiency. In addition, the statute attempted to avoid hostile work environment claims but did not address racially, ethnically or religiously offensive material which could also give rise to such claims. The court also found the statute over inclusive because it interfered with work related endeavors regarding sexuality and the human body. Further, it placed restrictions on speech beyond what is necessary to prevent hostile work environment claims as it prevented speech on matters unrelated to sex such as research on human rights abuses.
The court also found the approval process unworkable, because the statute placed unbridled discretion in the hands of state agencies in approving access. Furthermore, inconsistency in applying the approval process indicated that it was either unworkable, ignored by state institutions as a few universities granted blanket approvals to its departments, or it was deterring speech by state employees.
Finally, the court determined that content neutral alternatives existed to accomplish the objectives of the statute. For example, state employees were already prohibited from the unauthorized use of state computers and the universities and colleges had a similar prohibition that computers were to be used for conducting university business. Similarly, content neutral federal laws existed to deter the creation of a hostile work environment and states had implemented obscenity laws.