As far as Internet censorship is concerned, there is no clear-cut response from the United States on this issue. For the purposes of this report, we consider the US Response as more an aggregate of lower court decisions. These rulings were brought about by the litigation - for and against the Commonwealth of Virginia - concerning Virginia Code §§ 2.1-804-806 (as discussed in our scenario).
Hence, we will define the current US response as the current state law regarding Internet censorship in Virginia. At present, the original law - banning state employees from accessing sexually explicit materials - has been upheld by state judges. Their reasoning, and thus the US Reasoning, will be established through a discussion of litigation leading to the current law.
Unfortunately, there is no clear-cut response from the United States on the issue of Internet censorship. Rather, the response we gathered was more of an aggregate of various court decisions on the matter. For the purposes of this assignment, we decided to consider Virginia's position, with focus around a 1996 Internet censorship law, as well as the appeals and further litigation that followed it. The following law, which was passed in July of 1996, received a negative response from the ACLU only four days later. The ACLU announced that they would sue the State of Virginia, which they did two years later in 1998. The details of that court case follow.
The plaintiffs in this case, six college professors in Virginia, contend that this law restrains their work as researchers and educators. They all use computers to access material that, while not offensive, is considered sexually explicit under the letter of this law. The plaintiffs argue that "human sexuality is an important subject of scholarly research, writing, and teaching, and is an integral part of higher education in literature, history, the visual arts, science, health, anthropology, sociology, psychology, and other academic fields." [10] The plaintiffs contend that the law is unconstitutional for three major reasons.
The first reason that this law is unconstitutional is that it violates the First and Fourteenth Amendment rights to freedom of speech. As the ACLU points out, "The intent and effect of the Act is to restrict the access of the plaintiffs, other state university professors, and other state employees, to online resources that are not obscene, have serious literary, artistic, scientific, or other educational value, and enjoy full constitutional protection, based solely on their sexually explicit content." [10] According to the Constitution, these professors have as much right to access this material at work as they do to access it in a public library.
The second reason that this law is unconstitutional is that it is overly broad and vague. The law is vague in that it doesn't describe the procedure by which an employee can be granted access to download or view sexually explicit material for work purposes. Even if this procedure was described, such a procedure could introduce unacceptable delays, keeping a professor from completing his or her work in a timely manner. The law is also overly broad, in that the types of material that are deemed sexually explicit include artwork, literature, and other legitimate and appropriate forms of expression. For example, one of the plaintiffs, Professor Dana Heller, "uses computers to research and discuss sexually explicit literary works, for example, the novels of Henry Miller, the explicitly homoerotic poetry of Allen Ginsberg, Walt Whitman, and Adrienne Rich, Toni Morrison's Pulitzer Prize-winning novel, Beloved (containing graphic descriptions of rape and forcible sodomy), and Tony Kushner's Pulitzer Prize-winning play, Angels in America." [10]
The third reason that this law is unconstitutional is that it violates the First Amendment and Due Process rights by restricting employees from exchanging information without approval from the government. Another plaintiff, Professor Paul Smith "was told that he could ask the Provost for approval to use sexually explicit material on his Web site. He did not do so because he believes that the Act's preapproval requirement violates his academic freedom by making free speech conditional on government approval and establishing a system to police the free flow of ideas." [10]
On the other side of this case is the State of Virginia, which was fighting to uphold the law. The State also had three major arguments that the law was constitutional and should be upheld. The first of these reasons was that not all speech is protected by the First Amendment. Such unprotected speech includes any words that are intended to cause harm to other people, disturbance of the peace, or damage to one's reputation. Obscene speech, such as pornography, is one of these genres of speech that is not protected by the Constitution. Therefore, a law that regulates sexually explicit material cannot be deemed unconstitutional. [11]
The State's second and third arguments both involve the rights to control the workplace. Since the State's employees are hired to work towards a certain goal, the State has the right to tell its employees how they should and should not behave while at work. This, according to the State, is to ensure that they can maintain an efficient, distraction-free work environment. This also leads to their third argument, which is that they are also obligated to provide a workplace that is not sexually hostile. Keeping their employees from accessing sexually explicit material is their way of keeping sexual harassment out of the workplace. [11]
In the end, the court agreed with the plaintiffs and decided to overturn the law. The court believed that the act was under-inclusive in that it only banned sexually explicit material, and ignored computer games, racially offensive material, and other forms of workplace distraction and hostility. The court also found the act over-inclusive since it included all sexually explicit material, including that material which is not offensive and is directly related to work. Lastly, the court found that state employees were already prohibited from using computers in an inappropriate way, but by policies that are not focused on the content of material which the employees access. [11]
It is impossible to be a professor without communicating with colleagues and students. It is also impossible to predict the contents of any e-mail, chat room, message board, or website. Since prior approval is required to view any sexually explicit material, a catch-22 is introduced. An employee cannot access material without prior approval, but that employee won't know to seek approval until it is too late. Also, sexually explicit material is fundamental in research and education, and is not necessarily offensive. In addition, a great deal of the material that employees are banned from viewing on State computers is available to students in libraries without legal restrictions. Ironically, a large amount of this material is also available in the Virtual Library of Virginia, an online collection of academic libraries. [12]
Following the District Court’s ruling in favor of Urofsky and the professors (Appellees / Plaintiffs), the State (Appellant / Defendant) filed for an appeal with the United States Court of Appeals for the Fourth Circuit. It should be noted that the title of this and subsequent cases (Urofsky vs. Gilmore) reflects the change in governors between the original case and this appeal. The appeal was granted, and the case was argued on October 19th, 1998, before a three-judge panel (Judges Wilkins, Hamilton, and Luttig). [13]
Both sides remained consistent with their previous arguments, as presented in the original case. The professors, along with the ACLU, argued that the new statutes violated their basic First Amendment right to freedom of expression as state employees, and that the regulation of the material in question was unconstitutional. The State, on the other hand, maintained that the Acts were consistent with the First Amendment, as only “obscene” material was regulated, and as an employer, the government held the right to direct employees as necessary in order to obtain a common goal. On February 10th, 1999, a final verdict was reached, in favor of the State. Judge Wilkins formulated the majority opinion, of which Judges Hamilton and Luttig wrote concurring opinions. The original ruling was reversed, as the Fourth Circuit concurred with the State; its regulation of state employees as opposed to private citizens was consistent with the First Amendment. [13]
Immediately after this decision was reached, the professors, this time with the aid of the American Association of University Professors [14] and the Thomas Jefferson Center for the Protection of Free Expression [15], filed for a hearing before the full court. The appeal was filed to the Fourth Circuit on the grounds that the previous decision (Urofsky vs. Gilmore 2/10/99) did not address the issue of academic freedom as a constitutional right of all professors at higher education institutions. The hearing was granted, and held on October 5th, 1999 before a twelve-judge panel (Chief Judge Wilkinson, Judges Wilkins, Widener, Niemeyer, Luttig, Williams, Traxler, Hamilton, Murnaghan, Michael, Motz, and King). [16], [17]
The professors remained resolute in their stance; that the statutes unconstitutionally restricted the rights of state employees. Their argument this time, however, consisted of two parts. The first was a restatement of their previous argument, that the restriction of access to sexually explicit material was unconstitutional, with regard to state employees. The second premise of their stance was that the statutes unconstitutionally violate professor’s right to academic freedom; that is, a professor at an institution of higher learning should be able to research or teach any subject, sexually explicit or not. This freedom, in their opinion, was, and should be a basic constitutional right. [16]
The State’s stance had not changed, as it maintained that the statutes adhered to the specifications of the First Amendment. The Act itself, however, had been modified since the latest ruling.
First, the original:
“(i) any description of or (ii) any picture, photograph, draw- ing, motion picture film, digital image or similar visual rep- resentation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, sexual excite- ment, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, coprophilia, urophilia, or fetishism.” [18]
The updated version:
“content having as a dominant theme (i) any lascivious description of or (ii) any lascivious picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, sexual excite- ment, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, coprophilia, urophilia, or fetishism.” [4]
In the modified statute, the term lascivious is added. This term may be defined as “exciting sexual desires,” or “given to or expressing lust.” [19] Thus, the State more clearly defined the type of content to be regulated by the new laws. Virginia, armed with the above clarification, maintained that the Act was constitutionally correct, and did not wrongfully restrict the freedoms of state employees.
On June 23rd, 2000, the final verdict was reached, eight to four, in favor of the State once again. Judge Wilkins wrote the majority opinion, with Judges Wilkinson, Widener, Niemeyer, Luttig, Williams, Traxler, and Hamilton concurring. Each of the four opposing judges (Murnaghan, Michael, Motz, and King) wrote dissenting opinions. This ruling remained consistent with the previous appeal with regard to regulating state employees, but this time, the issue of academic freedom was specifically addressed. Academic freedom could not be considered a guaranteed constitutional right, and as a result, the statutes were upheld once again. [16]
Documented by the AAUP [17], the professors continued their fight against the statute even after the decision handed down in June of 2000. In September, they appealed to the highest possible level, filing a petition for writ of certiorari with the United States Supreme Court. The request for review of the Fourth Circuit decision was supported by both the AAUP and the Thomas Jefferson Center for Free Expression. In November of 2000, the two organizations filed for an amicus brief consisting of the following:
The majority decision of the Fourth Circuit conflicted with the Supreme Court’s, as well as other circuit courts’ rulings in which academic freedom is an individual right of a professor. The majority decision of the Fourth Circuit misrepresented the Supreme Court’s test on “matters of public concern,” and conflicted with at the minimum, five other courts’ decisions regarding public interest of employee speech. The Fourth Circuit’s approval of the Act’s licensing scheme opposed Supreme Court rulings due to the law’s discrimination with regard to content.
The United States Supreme Court, however, declined to review the case in January of 2001. Professor Melvin I. Urofsky wrote a response to the preceding events, following this. [20]
Following all of this, in October of 2001, the Commonwealth of Virginia made a small, but potentially dangerous change to the statutes. The old statutes, § 2.1-804-806 are obsolete (repealed, effective October 1st, 2001) [8], and have been replaced by § 2.2-2827 (effective October 1st, 2001) [21]. An important distinction may be noted between the two; in the new statute, the term “lascivious” is no longer present, when defining sexually explicit content. Otherwise, the new statute appears to merely be a multi-faceted concatenation of the previous three.
Officially, the statute, as it stood in October 1st, 2001, is still in effect today. Legally, at least in this particular case, the Commonwealth of Virginia appears to uphold regulation of the internet.
Though the District Court ruled that the statues in question were, indeed, in violation of guaranteed constitutional rights, the Fourth Circuit disagreed. Their reasoning was that, while the First Amendment rights of private citizens would be wrongfully restricted, this did not apply to state employees. As an employer, rather than a sovereign governing entity, the State became much more powerful in this particular case; instead of regulating the internet access of private citizens, it was directing its employees as necessary in order to accomplish a goal. This became the key distinction in its decision.
The First Amendment states that a balance be required between the rights of the employee as a citizen, and the needs of the State as an employer, in matters of “public concern.” Thus, an employee’s rights may be restricted, to a certain degree, while an individual citizen’s may not; this is provided that the restriction facilitates the accomplishment of the employer’s goals. The statutes, according to court opinion, regulated the speech of individuals as employees, and not as private citizens. Because of this, the rights in question could be restricted, and were consistent with the First Amendment. [13]
In the second appeal, the Fourth Circuit addressed the issue of academic freedom of professors as a constitutional right, in addition to upholding the previous reversal. It upheld that though the Supreme Court made decisions supporting the ideal of academic freedom, it had never set aside a state regulation on that grounds that said regulation infringed upon a constitutional right to academic freedom. The majority opinion prepared by the Court maintained that academic freedom, while a professional norm, was not, and is not a constitutional right. Once again, regulation of the internet was upheld by the Courts. [16], [17]
Following the two appeal decisions against them, the professors continued to fight the statutes by appealing to the United States Supreme Court. Though they were denied, this may represent just how the American public will react to censorship of any kind. Urofsky and the professors never gave in, and organizations such as the ACLU and AAUP will continue to oppose any legislation which they deem to be a suppression of constitutional rights. Because of this, the censorship issue may never be resolved, as neither side appears to be willing to give in, despite rulings against them. [17]
In his response to the events, Urofsky reveals that the statutes are not even enforced, to his knowledge. He also goes on to state that he has garnered a large amount of public support from both colleagues and bystanders, and that the American public will never lie down, but will continue to scrap and claw for their rights. A biased opinion, to be sure, but accurate indeed, as evidenced by this, and many other cases around the country. [20]
It is also important to note the latest change to the statutes, as they were merged. Specifically, the removal of the term “lascivious” becomes particularly mysterious. Did Virginia change the statutes simply in preparation for the second appeal, or was this simply an oversight? This remains to be seen, and could stir matters up, once again. [8], [9]
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