Designer Skin LLC v. S & L Vitamins, Inc., et al.
Melvin Urofsky, et al. v. George Allen
995 F. Supp. 634 (E.D. Va., Feb. 26,1998), reversed 216 F.3d 401 (4th Cir., Feb. 10, 1999), cert. denied 2001 U.S. Dist. Lexis 134 (2001)
Plaintiffs, professors at various Virginia state colleges and universities, brought suit challenging the constitutionality of Va. Code §§ 2.1-804 et seq., entitled "Restrictions on State Employees Access to Information Infrastructure." The Act, inter alia, prohibits state employees from using 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, agency-approved research project or other agency approved undertaking." The Court struck down the statute, holding that it ran afoul of the First and Fourteenth Amendments of the United States Constitution.
The ability of governmental employees to speak on matters of public concern is protected by the First Amendment. To place restrictions on this speech, the Government must establish that the adverse impact of such expression on the operation of the Government and its delivery of services outweighs the interests of both its employees and the public in such expression.
The plaintiffs argued that the Act improperly interfered with numerous legitimate activities by governmental employees, such as research into and teaching about sexually explicit subjects. The State responded that the Act was needed to maintain operational efficiency in the workplace and to prevent creation of a sexually hostile work environment.
While the Court recognized that these were valid state concerns, it held that the Act was not appropriately tailored to achieve these ends. It found that the under and overinclusive nature of the statute, combined with the effectiveness of content neutral restrictions to achieve the same goals, rendered the Acts' restrictions of speech impermissible.
The statute was underinclusive because it only targeted sexually explicit content, and not other conduct that could disrupt the efficiency of the workplace, such as accessing computer games, or news or sports related sites. Similarly, it was underinclusive because it only limited the exposure of workers to sexually explicit content presented on the Internet, but not in other mediums such as books and pin-ups.
The statute was overinclusive, because it prohibited countless legitimate work-related endeavors by state employees dealing with sexuality and the human body.
Lastly, the court noted that the State could achieve its goals by content neutral regulations, such as regulations which prohibit the "unauthorized use" of state equipment. These regulations treat all types of speech equally, without discriminating against any speech (such as sexually explicit speech) solely because of its content.
Said the Court:
Given the over and underinclusiveness of the Act, and the existence of content neutral alternatives, this Court concludes that the Act does not constitute a "reasonable response" to the Commonwealth's legitimate interests ... Although workplace efficiency and the avoidance of hostile work environment claims are undoubtedly important governmental interests, the Act fails to advance these interests in a direct and material way. Moreover, the Act restricts speech far beyond what is necessary to advance the interests it purports to address. Most troubling of all, the Act's poor fit and the availability of content neutral alternatives suggest that the Act was intended to discourage discourse on sexual topics "not because it hampers public functions but simply because the state disagrees with the content of employees' speech." ... As such, we cannot find that the Commonwealth's justifications for the Act outweigh the interests of thousands of state employees and the public in expression on sexually explicit topics.
The statute was not saved by its provisions permitting employees to view sexually explicit content if they obtained agency approval. Quite the contrary, the court concluded that such "prior approval provision weighs heavily against the Commonwealth." Given the lack of guidelines for such action, the statute placed broad power and discretion in the hands of the agency heads, which power would have a chilling effect on the exercise of free speech.