Issue 81, Spring 2001

by Marjorie Heins

In January, the Supreme Court declined to review a sweeping decision from the U.S. Court of Appeals for the Fourth Circuit that essentially denied state-employed professors any First Amendment right to academic freedom. The case of Urofsky v. Gilmore was a challenge to a Virginia law that barred state employees (with the exception of state police) from using state-owned or state-leased computers to access any “sexually explicit” Internet content without prior written approval from their “agency head.”

The law meant that large amounts of online art, literature, sociological and historical writings, medical information, and academic discussions on subjects ranging from Freud’s theory of penis envy to gay and lesbian studies were presumptively off-limits to professors, librarians, museum curators, and other state employed intellectual workers, unless they filed a written request that could be granted or denied at the discretion of a state official. Because the law required that all grants be a matter of public record, the professors argued that it sent a clear signal to administrators that research, writing, and academic interchange about sexual subjects was politically dangerous.

Although the federal district court struck down the law on First Amendment grounds, a three-judge panel of the Fourth Circuit reversed that ruling the following year. The full bench then granted the professors’ petition for rehearing, but in June, 2000, six judges ruled that no state employees, including professors, have any First Amendment right of free speech in connection with their work. Two other judges concurred in the result while disagreeing with the majority’s radical approach; and four judges dissented.

The six judges in the Urofsky majority based their conclusion on a line of Supreme Court decisions involving the free-expression rights of public employees. Only when public employees are speaking (or doing research) as “private citizens” on a matter of “public concern,” the six judges said, would the First Amendment apply. When they are simply doing their job, according to this simplistic reasoning, they are mouthpieces for the state, and their expression as well as their research and classroom teaching can be totally controlled. The judges dismissed Supreme Court cases that recognized a First Amendment right of academic freedom, asserting that if any such right existed, it belonged to the university and not to individual scholars.

Chief Judge Harvie Wilkinson wrote a separate opinion disagreeing with the majority on the constitutional importance of academic freedom; but he concurred in the judgment because he thought that concerns about “sexual harassment” justified the law. The four dissenting judges disputed both the majority’s distortion of the First Amendment, and its failure to recognize the large volume of “sexually explicit” expression that would now be chilled, from “the works of Toni Morrison” to “many themes found in Victorian poetry.”

Because the decision was so sweeping, and such a direct challenge to professors’ long-recognized right to conduct research without seeking prior permission, many observers believed the Supreme Court would take the case. The only consolations are that the decision applies only in the states covered by the Fourth Circuit (Virginia, Maryland, West Virginia, and North and South Carolina); and, because only six judges agreed with the demolition job on academic freedom, the decision will probably have limited impact.

The six plaintiffs were Melvin Urofsky, a noted communications and constitutional law expert; Terry Meyers, an English professor with a specialty in the notoriously scandalous poetry of Swinburne; Dana Heller, a gay and lesbian studies scholar; Paul Smith, a leader in the fields of feminism and cultural studies (including the gender roles embedded in pornography); and Bernard Levin and Brian Delaney, community college professors of psychology and literature respectively.