Appeals court limits freedom of Virginia faculty to surf Web

THE CAUSE OF ACADEMIC FREEDOM on the Internet suffered a disturbing setback in February. The U.S. Court of Appeals for the Fourth Circuit, in Urofsky v. Gilmore, affirmed the constitutionality of a Virginia statute prohibiting state employees-including faculty in state-supported colleges and universities-from using state-owned computers to "access, download, print, or store any information infrastructure files or services having sexually explicit content," without prior approval by the users' supervisors. This outcome reverses a lower-court ruling that found in favor of six public university professors who claimed the law violated their First Amendment right to freedom of expression in teaching and research. The AAUP filed a friend-ofthe-court brief in the case.

In the May-June 1998 issue of Academe, the lead attorney for the plaintiffs, Marjorie Heins of the American Civil Liberties Union's Legal Foundation, pointed out that the lower court based its rejection of Virginia's argument on the Supreme Court's decision in Reno v. ACLU. In Reno the Court found that provisions of the federal Communications Decency Act violated the First Amendment. In its ruling, the Court extolled the Internet as a powerful new means for the exchange of ideas and information, holding that its free use deserves no less protection than that accorded more familiar forms of communication.

A central issue in the case challenging the Virginia law was its negative impact on a teaching strategy of Melvin Urofsky, professor of history at Virginia Commonwealth University. The passage of the law forced Urofsky to forgo asking his students to surf the Web for sexual material in order to assess the legitimacy of Congress's concerns when it passed the Communications Decency Act.

As it now stands, the Virginia law allows state employees the same right as any other citizen to use privately owned computers to view sexual material. With respect to state-owned equipment, however, the appellate court accepted Virginia's claim that its ban does not violate employees' First Amendment rights, since they may ask their supervisors for exemption from it if they can demonstrate their need in terms of a "bona fide, agency-related research project." But the precise standards for such decisions remain unstated, as do the mechanisms for appealing them. The range of potentially impermissible academic uses extends from researching the sociology of mass culture to examining the psychology of sex and the imagery of Swinburne.

The plaintiffs have petitioned for a rehearing of the case before the full Fourth Circuit. (The most recent decision in the case was made by a threejudge panel of the court.) The petition argues that "the majority. . . wrongly decided two issues of exceptional importance by virtue of its sweeping rejection of long-established principles of academic freedom that are critical to the continued vitality of our public universities and by its denial of virtually all First Amendment protection to the job-related speech of public employees."

"The Fourth Circuit decision in Urofsky is deeply troubling," says Donna Euben, AAUP associate counsel. "If left in place, this law could have a powerful chilling effect on many curriculum choices, teaching techniques, and research projects. The Association will continue to participate in the case as a friend of the court to ensure that the academic freedom concerns of professors are conveyed."