The First Amendment and the right to hear.

• Author: Wagner, Dana R.
• Position: Case Note

Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va. 1998).

On July 1, 1996, Virginia enacted a statute that restricted state employees' access to constitutionally protected speech.(1) Under the new law, Virginia employees could not use state computer equipment to access sexually explicit material without express authorization from the head of a state agency.(2) In Urofsky v. Allen,(3) the United States District Court for the Eastern District of Virginia struck down the statute as an unconstitutional abridgment of First Amendment rights.

On its face, Urofsky appears to be an important victory for those who advocate liberal constructions of the freedom of speech. After all, the court refused to be swayed by Virginia's argument that "state employee computer use is not protected speech under the First Amendment because the employees are acting in their capacities as government employees, not public citizens."(4) It also rejected the argument that expressions of sexuality, while protected under the First Amendment, "`are of such slight social value ... that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'"(5) Instead, the court accorded full constitutional protection to sexually explicit materials and condemned the statute as an impermissible restriction on the ability of public employees to "speak on matters of public concern."(6)

But the statute did not restrict this ability, at least not directly. What it did restrict directly was the employees' ability to hear others speak on matters of public concern. Unfortunately, the court failed to distinguish between the First Amendment interest in producing speech and the First Amendment interest in receiving speech, and as a result, its reasoning is strained and ultimately unpersuasive. Furthermore, by failing to identify properly the interest most directly at stake in the case before it, the court lost the opportunity to protect this interest against future incursions that are sure to come.

I

The facts presented in Urofsky were in little dispute. The Virginia statute, entitled "Restrictions on State Employee Access to Information Infrastructure," made it a criminal offense for any state employee to use state-owned or state-leased computer equipment "to access, download, print or store any information infrastructure files or services having sexually explicit content" without first obtaining written approval.(7) Under the statute, such approval could be granted only by the heads of state agencies and only "to the extent required in conjunction with a bona fide, agency-approved research project or other agency-approved undertaking."(8) Furthermore, the statute defined "sexually explicit content" to include any description or visual representation of "a lewd exhibition of nudity, ... sexual excitement, [or] sexual conduct," and it defined "information infrastructure" so broadly as to encompass all "telecommunications, cable, and computer networks," including "the Internet, the World Wide Web, Usenet, bulletin board systems, on-line systems, and telephone networks."(9) So if Virginia employees wished to view nudity on the Internet, receive sexual messages over e-mail, or even discuss sexuality on office telephones,(10) they had to justify their actions in terms of official state business and obtain the permission of their employer.

The Urofsky plaintiffs, a group of professors at Virginia state colleges and universities, challenged the constitutionality of these restrictions. They claimed that because the statute restricted their access to sexual materials, it interfered with their research and teaching and thereby violated their First Amendment rights.(11) In response, the state argued that the statute's restrictions were necessary to maintain efficiency in the public workplace and to prevent the creation of sexually hostile work environments.(12)

To resolve this controversy, the district court analyzed the Virginia statute as a direct restriction on state employees' freedom of speech. Using a test that the Supreme Court established in Pickering v. Board of Education,(13) the court balanced the "`interests of the [employee] ... in commenting upon matters of public concern'" against "`the interest of the State, as employer, in promoting the efficiency of the public services it performs.'"(14) The court also considered "the public's interest in receiving the speech of government employees."(15) While the court recognized the validity of the government's interests in maintaining workplace efficiency and preventing sexually hostile work environments, it found the statute "both fatally overinclusive and underinclusive" as a method of furthering those interests.(16) Moreover, the court noted that Virginia employees were already subject to content-neutral policies and statutes--that is, those that did not single out expressive material on the basis of its content--that addressed the state's concerns.(17) In the court's view, the "obvious lack of fit between the government's purported interest[s] and the sweep of its restrictions,"(18) combined with the existence of these content-neutral alternatives, cast "serious doubt" on the asserted need for the statute,(19) The court therefore determined that the asserted governmental interests did not outweigh the employees' interest in speaking and the public's interest in hearing their speech. Accordingly, it granted summary judgment to the plaintiffs and invalidated the statute in its entirety.

Urofsky builds upon an extensive First Amendment doctrine relating to speech in the government employment context. In a series of cases, the Supreme Court has explored the extent to which the government may restrict its employees' ability to engage in political activity,(20) criticize government policy,(21) practice political patronage,(22) and affiliate with "subversive" political organizations.(23) It is from these cases that the Urofsky court derived its standard for reviewing the Virginia statute. The court relied heavily on Pickering, in which the...