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Melvin I. Urofsky, et al. v. James S. Gilmore, III

216 F.3d 401 (4th Cir., Feb. 10, 1999), cert. denied 2001 U.S. Dist. Lexis 134 (2001)

The Fourth Circuit, reversing the District Court, held that a statute titled "Restrictions on State Employee Access to Information Infrastructure," Va. Code Ann. § 2.1-804 et seq. (the "Act") did not violate the First Amendment of the United States Constitution. The Act, among other things, prohibits State employees from utilizing State computers to access Internet sites containing "sexually explicit content" unless they obtain written approval from their agency head that such use is "required in conjunction with a bona fide research project or other [agency approved] undertaking."

Plaintiffs were professors employed at public colleges and/or universities who claimed that the Act interfered with their performance of their duties by preventing them from using state- owned computers to access "sexually explicit content" on the Internet. One professor claimed that the Act prevented him from assigning an online research project on indecency law because he was afraid he would violate the Act if he attempted to verify his students' work on the Internet. Another professor claimed that the Act prevented him from accessing sexually explicit poetry in connection with his study of Victorian poets.

 

Plaintiffs contended that the Act violated their First Amendment rights. The Fourth Circuit disagreed, and held that the Act represented a permissible restriction on the manner in which State employees performed their duties.

The State is permitted to impose restrictions on the speech of its employees. To the extent that such restrictions are limited to situations where the State's employee is acting primarily as an employee, and not a private citizen, such restrictions are subject to very limited First Amendment scrutiny. Here, the court found that the Act's restrictions were aimed solely at the plaintiffs' functions as State employees. Indeed, that was plaintiffs' principal complaint -- that the Act interfered with their performance of their duties. As such, the Act was a legitimate restriction that did not afoul of the First Amendment. Said the Court:

[Our] threshold inquiry is whether the Act regulates speech by employees of [Virginia] in their capacity as citizens upon matters of public concern. If a public employee's speech does not touch upon a matter of public concern, [Virginia], as employer, may regulate it without infringing any First Amendment protection.

 

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The challenged aspect of the Act does not regulate the speech of the citizenry in general, but rather the speech of the state employees in their capacity as employees. It cannot be doubted that in order to pursue its legitimate goals effectively, [Virginia] 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.

 

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The Act regulates the speech of individuals speaking in their capacity as [Virginia] employees, not as citizens, and thus the Act does not touch upon a matter of public concern. Consequently, the speech may be restricted consistent with the First Amendment. (Citations omitted)

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