Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)

The Virginia General Assembly in 1995 enacted a law prohibiting any state employee from using a stateowned computer to access Internet sites or files having ‘‘sexually explicit content.’’ In those instances in which an employee had a legitimate, job-related reason to access such sites, he or she had to secure permission from the agency head, and his or her name would then be posted by the agency. Six professors in state colleges and universities challenged the law on the grounds that it unconstitutionally abridged the First Amendment right to free expression as well as the Academic Freedom.

The professors won in district court, Urofsky v. Allen, 995 F. Supp 634 (E.D. Va. 1998), in which Judge Brinkelma wrote an extremely strong freespeech– protective opinion. A panel of the Fourth Circuit reversed this decision by a two-to-one vote in Urofsky v. Gilmore, 167 F.3rd 191 (4th Cir. 1999), but the majority opinion failed to even address the main issues raised in the district court. As a result, the judges agreed to a rehearing en banc.

This opinion, although also upholding the law (which, in the meantime had been slightly modified after the earlier decisions), spelled out the reasons in a more coherent manner. Essentially, the majority of judges held that state employees held limited First Amendment rights, relying on United States v. National Treasury Employees Union, 513 U.S. 454 (1995), which, as the dissent pointed out, gave government employees more rights than the Fourth Circuit recognized. The lead opinion by Judge Wilkins also declared that Academic Freedom belonged to the institution and not to individual faculty members, a point that Chief Judge J. Harvey Wilkins dismantled in his dissent.

Although the state won its case, in fact, the law has become a dead letter in the state’s university system, with both administration and faculty ignoring it. It did, however, form the basis for the dismissal of several dozen employees of the Department of Transportation in 2002 for accessing pornographic websites from state computers during working hours.

MELVIN I. UROFSKY

Cases and Statutes Cited

• United States v. National Treasury Employees Union, 513 U.S. 454 (1995)
• Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998)
• Urofsky v. Gilmore, 167 F. 3rd 191 (4th Cir. 1999)
• Urofsky v. Gilmore, 216 F. 3rd 401 (4th Cir. 2000)