*1 that the district court ion did not its abuse
discretion admitting this UROFSKY; evidence. Melvin I. Smith; Paul Bri- Delaney; Heller; J. Dana Bernard The district court any preju- alleviated Levin; Terry H. Meyers, L. Plaintiffs- dice or confusion that might have occurred Appellees, from the introduction of testimony limiting with a instruction. The district court specifically charged jury GILMORE, III, James S. in his official “testimony about what Deans could and capacity as Governor of the Common- accident, could not do after the that is to Virginia, wealth of Defendant-Appel- by you your considered determina- lant. tion of what if any damages you believe American University Association of Pro- appropriate pain for suffering. It fessors; The Guild; Authors to be determined any other Thomas Jefferson Center for the Pro- purpose by you.” The court also instruct- Expression, of Free tection Amici Cu- jury ed the that it could “[plain, consider riae. suffering and anguish, mental including the effect of the injury Plaintiffs on the No. 98-1481. pursuits pleasures life,
normal expe- United Appeals, States Court of rienced from the date of the accident Fourth Circuit. present.” opinion We are of that these adequately protected instructions the de- Argued Oct. from having jury fendant consider this Decided June evidence for purposes, other including the loss of earnings. future
Finally, we previous adhere to our hold- Inc., Deans v.
ing in Transp., CSX (4th Cir.1998),
F.3d 326 the railcar contemplated
was use as Safety
Appliance such, Act. As CSX’s argument contrary
to the is without merit.2 judgment entered the district
court accordingly
AFFIRMED. 2. CSX stated in brief point that this recognition take this as that we would decline simply included aas claim of error in the previous to reconsider our decision on appeal of an event Court. We point. same
ARGUED: Henry Hurd, William Senior General, Counsel to the Attorney Office the Attorney General, Richmond, Virginia, Appellant. for Marjorie Heins, American Civil Liberties Foundation, Union New York, York, New for Appellees. ON BRIEF: Earley, Mark L. Attorney Gen- eral Virginia, Messitt, Peter R. Senior General, Assistant Attorney Paige Alison Landry, Attorney General, Assistant Rita Woltz, R. Assistant Attorney General, Of- General, fice of the Richmond, Attorney Virginia, Appellant. Beeson, for Ann American Civil Liberties Union Founda- tion, York, York; New New Louis M. Bo- grad, American Civil Liberties Union Foundation, D.C.; Washington, H. Michael Hammer, Hartman, Wilkie, Todd G. Farr Gallagher, D.C., & Washington, Appel- lees. Alger, Euben, Jonathan Donna American University Association of Pro- fessors, D.C.; Washington, J. Joshua Wheeler, O’Neil, Robert M. The Thomas Center Jefferson for the' Protection of Expression, Charlottesville, Free Virginia; M. Guild, Edward McCoyd, Authors York, York, New New for Amici Curiae. employees’ on state restriction WILKINSON, Judge, Chief Before com- material explicit WILKINS, sexually access MURNAGHAN, WIDENER, by the state WILLIAMS, or leased owned LUTTIG, puters NIEMEYER, regulates Act TRAXLER, MOTZ, constitutional MICHAEL, ca- in their HAMILTON, employees’ only state Judges, KING, Circuit opposed employees, pacity as state Judge. Circuit Senior ad- as citizens capacity in their Judge opinion. published Reversed concern. matters dressing opinion, majority, wrote WILKINS (4th Gilmore, F.3d Urofsky NIEMEYER, WIDENER, Judges Cir.1999). circuit of the active majority A TRAXLER, WILLIAMS, LUTTIG, appeal hear this voted to thereafter judges Judge LUTTIG *4 joined. HAMILTON regulation now hold banc. We en Judge opinion; concurring wrote sexually ex- access employees’ of state opinion; concurring wrote HAMILTON employ- material, capacity as in their plicit wrote WILKINSON Judge and Chief by the owned or leased ees, computers judgement. concurring opinion Amend- the First is consistent state dissenting wrote MURNAGHAN Judge the deci- reverse we Accordingly, ment. MICHAEL, Judges in which opinion, the district court. sion and KING MOTZ DIANA GRIBBON joined. I. states: the Act provision of
OPINION The central in con- required the extent Except WILKINS, Judge: Circuit fide, agency-ap- a bona junction with employed professors six Appellees, agen- or other project proved research universities colleges and various agency no undertaking, cy-approved challenging this brought action Virginia, or agency-owned utilize employee shall re Virginia law of a constitutionality equipment computer agency-leased accessing from stricting state in- download, any access, or store print computers material explicit sexually files or services infrastructure formation by the state.1 leased or owned Such content. sexually explicit having (Mi to -806 §§ 2.1-804 Ann. See Va.Code in writ- given be shall approvals agency Act). (the The district Supp.1999) chie heads, ap- any such by agency ing in favor summary judgment granted court available shall be provals the Act uncon reasoning Appellees, Virginia of the provisions under employees' on state infringed stitutionally Aet[,”Va.Code Information Freedom of v. Urofsky rights. See First Amendment (Michie to -346.1 §§ Ann. 2.1-340.1 (E.D.Va.1998). A Allen, 995 F.Supp. Supp.1999) ]. decision, reversed this court panel of section Another §Ann. 2.1-805.2 opinion Va.Code en banc prior our holding that con- “sexually explicit Act defines Ed County Board Buncombe Boring ruled, and court (4th the district When Cir. tent.” ucation, 136 368-69 F.3d initially considered panel 1998)’(en when banc), the conclusion compelled bureau, entity governmental Allen, like or George then Gover- named Appellees 1. Commonwealth, Department Subsequently, except Virginia, as defendant. nor of Gilmore, Governor was elected S. III State Police. James party. tele- substituted means was infrastructure” "Information communications, cable, computer net- “agen- defines provision of the Act Another Internet, World includes the works and infra-structure”: cy” and “information Usenet, Web, systems, board bulletin Wide authority, any agency, “Agency” means telephone networks. systems, and online commission, division, board, department, omitted). (emphasis § 2.1-804 Ann. Va.Code education, institution, higher institution appeal, “sexually the Act defined explicit state agency head may give permission for to include: content” a state employee to access such informa- (i) (ii) any description or any picture, computers tion on owned or leased photograph, drawing, picture motion if the agency head deems such access film, digital image or rep- similar visual required in connection with a bona resentation depicting sexual bestiality, a fide research project or other undertaking. lewd of nudity, nudity exhibition is Further, state employees remain free to 18.2-390, § defined in excitement, sexual sexually access explicit materials sexual conduct . sadomasochistic personal or other computers not abuse, 18.2-390, § as also defined co- owned or Thus, leased the state. prophilia, urophilia, or fetishism. prohibits Act state employees from access- (Michie § Va.Code Ann. 2.1-804 Supp. ing sexually explicit materials when 1998). Following our panel decision, the the employees are using computers that Virginia Assembly General amended the are owned or leased by the state and “sexually definition of explicit content” to permission to access the material has not add language: italicized given been by the appropriate agency content having as a dominant theme (i) head. any (ii) lascivious description of or *5 None of Appellees the requested or lascivious picture, photograph, drawing, been denied permission to access sexually film, picture motion digital image or sim- explicit pursuant materials to the Act. In-
ilar representation visual depicting sexu- deed, the record indicates that no request al bestiality, a lewd nudity, of exhibition for access to sexually explicit materials on nudity as 18.2-390, § in defined sexual computers owned or leased by the state excitement, sexual conduct or sadomaso- has been declined.4 abuse, chistic as also § defined in 18.2- 390, coprophilia, urophilia, or fetishism. Appellees maintain that the restriction (Michie § Va.Code Ann. 2.1-804 Supp. imposed by the Act violates the First 1999) added).3 (emphasis rights Amendment of employees. language
As its plain, Appellees makes the do Act not assert that state employ- by restricts access state employees possess ees las- First Amendment right to sexually explicit civious material on explicit com- access sexually materials on state- puters owned or by But, leased the state. owned or computers per- leased for their the Act prohibit does not use; all rather, access sonal Appellees confine their state employees materials, to such for a challenge to the restriction of access to 3. provides Section pertinent part: 18.2-390 when in a state of sexual stimulation or (2) arousal. "Nudity” means a state of undress so (5)“Sadomasochistic expose as to the abuse” means ac- human male or female genitals, tual or pubic explicitly flagellation area or simulated or buttocks with less upon than torture opaque covering, person a full or showing the who is nude or or undergarments, of the female clad breast with fully than a less mask or bizarre costume, opaque covering any portion fettered, of the being be- or condition thereof low top nipple, the depiction or the bound or physically otherwise restrained on covered or genitals part uncovered male the in a one so clothed. discernibly turgid 18.2-390(2) state. -390(5) (Mi- § Va.Code Ann. (3) 1996) "Sexual conduct” omitted). (emphasis means actual or ex- chie plicitly, masturbation, simulated acts of ho- intercourse, mosexuality, sexual 4. In June physical shop supervisor or a machine apparent Physics contact an Department act of the College sexual stimu- the Wil- gratification lation or Mary requested liam persons approval under the area, clothed genitals, pubic unclothed Act to research issues con- ndn-work-related or, female, buttocks if such be cerning breast. disability. his An administration offi- (4) "Sexual excitement” means the con- prior cial approval determined that was not dition of genitals human male or necessary female to access such materials.
406 Pickering, (alteration (quoting original) for work-related materials sexually explicit 1731). This 568, 88 S.Ct. Act U.S. 391 challenge to Appellees’ purposes. into first inquiry an involves balancing first maintain They is twofold: of a was that at issue em- all state whether as to Act is unconstitutional matter on a speaking par- this, private more citizen they argue failing ployees; so, must next the court If academic concern. public Act violates ticularly that employee’s interest whether the freedom. consider right to employees’ outweighs expression Amendment in First II. what interest in employer’s public appro- to be the has determined employer do citizens settled It is well workplace. See priate operation Amend all of relinquish Pickering, 391 U.S. accepting virtue rights ment Na v. States United See employment. thus is inquiry threshold Union, 513 Treasury Employees tional by state regulates Act whether L.Ed.2d 454, 465, 115 S.Ct. citizens capacity as in their NTEU]; (1995) Connick [hereinafter pub If a concern. matters of upon 138, 142, 103S.Ct. 461 U.S. Myers, v. capacity made his employee’s lic (1983); v. Board Pickering 75 L.Ed.2d upon a not touch private citizen does as a 563, 568, Educ., state, concern, em as matter Nevertheless, (1968). L.Ed.2d 811 infringing it without may regulate ployer, undoubtedly pos state, employer, protection.5 any First authority to restrict greater sesses Connick, 461 U.S. at has as employees than speech of speech “can plaintiffs that if a (explaining speech of to restrict sovereign constituting fairly characterized *6 See Waters a whole. citizenry as concern, it is public matter on a of 661, 671, speech 114 S.Ct. Churchill, 511 U.S. the reasons (1994) ... to scrutinize unnecessary (plurality 1878, 686 L.Ed.2d 128 Rimmer, v. Holland discharge”); government “the for [the] (recognizing opinion) (4th Cir. 1251, n. 1254-55 & 11 powers far broader 25 F.3d ... has employer as 1994). private a that of sovereign”); speech is as Whether government than the con 568, public 1731 matter of addressing S.Ct. at 88 Pickering, 391 citizen U.S. and, the court interests as law for question of that “the State cern is a (explaining novo. of de speech the its the matter regulating we review in employer accordingly, an 7, 103 Connick, n. S.Ct. significantly at 148 that differ 461 employees See U.S. regu Number with Dist. 1684; in connection Sch. possesses Hall v. Marion those it (4th Cir.1994); citizenry in Hol 183, speech 2, of 192 lation of 31 F.3d whether a of land, A determination at general”). 25 F.3d 1255. employee’s public aon imposed
restriction in speech whether To determine re First Amendment violates the speech “ concern, ex we public a matter of volves interests of ‘a quires balance between context, content, of form citizen, amine the commenting as a [employee], rec light entire issue speech at and the concern public upon matters 147-48, Connick, 103 461 State, in ord. See employer, an as interest a matter involves Speech ser S.Ct. 1684. public efficiency promoting the ” an issue it involves when public concern employees.’ through performs it vices to a com- social, interest or political, other 142, 1684 Connick, 103 S.Ct. 461 U.S. appropriate stances, is not the a federal court pri- as a employee's speech public 5. When aof the wisdom which to review upon a matter of forum touch vate does not citizen concern, "totally agency.” public speech is personnel decision taken public Connick, Amend- protection' of First S.Ct. beyond the 103 461 U.S. at ment,” circum- the most unusual but "absent
407
munity.
id. at
See
speech
1684. “off-hour
bearing no nexus to Gov
inquiry
An
into' whether a matter is of
ernment employment”); Pickering, 391
public concern does not
involve a determi U.S. at
88
1731
(explaining that
nation of
interesting
important
how
the when-“the fact
employment
tan
subject
employee’s speech
of an
is.
gentially
and insubstantially
involved
Police,
Terrell v. University
Sys.
Tex.
subject
matter
public
communi
(5th
Cir.1986).
792 F.2d
Fur
cation-
made
[the employee],
...
it is
ther,
place
speech
where the
occurs is necessary to regard the [employee] as the
irrelevant: An employee may speak as a member of the general public he seeks to
public
be”).
citizen on a matter of
Thus,
concern at the
critical to a determination of
workplace,
may speak
as an employee
whether
speech is entitled to
workplace.
from the
away
Compare Ran
First
protection
Amendment
is whether
McPherson,
378, 388-92,
kin v.
the spéech is
primarily
“made
the [em
(1987)
ployee’s]
L.Ed.2d 315
role as citizen or primarily in his
(holding public employee’s' discharge was
employee.” Terrell,
role as
F.2d
1362;
violative of First Amendment when based
see Boring,
the statement.6 In
when the
have a First Amendment
to chal
attorney
lenge
employer's
regarding
same assistant district
writes a
his
directions
press
newspaper
conference.7 It
is difficult to
letter to the editor of the local
imagine
array
employment
expose
pattern
prosecutorial
of routine
to
feasance,
mal
presented
speech
decisions that would be
as con
is entitled to constitu
questions
protection
stitutional
to this court under
tional
because it is made in the
Connick,
employee's capacity
private
this view of the law. See
as a
citizen
(recognizing
and touches on matters of
concern. U.S. at
teaching. free- [AJcademic truth.... established ap- of university obtain to professors quiring mean- simply had no it we know dom as sexually explicit accessing proval before Additionally, at 269. Byrne, supra, ing.” in connection Internet the materials on during period this universities American research, infringes the Act with their control by “legal characterized were Our freedom. of academic right individual trustees; gover- effective non-academic however, law, leads us review the apart from set by administrators nance Constitu- the the extent that to conclude profes- allegiance and by political faculty “academic right of recognizes tion and orientation; dependent [and] sional the beyond and above freedom” This Id. at 268-69. faculty.” insecure every citizen rights Americans change, began to in the Univer- entitled, inheres the universities German who had studied and is not professors, in individual sity, not in universities American to remodel sought Act. the of by the terms violated P. Metz- image. Walter See German term is a freedom” “Academic Two Constitution: and ger, Profession by federal used, explained, little but often Freedom Academic of Definitions Stuller, High W. Stuart courts. See (1988). America, Tex. L.Rev. The Evolution Freedom: Academic School freedom of academic notion German The Water, Neb. L.Rev. a Fish Out of of concepts: two of composed primarily was remarkably (1998) (“[C]ourts are 301, 302 gener- See unwillingness give Lemfreiheit. Lehrfreiheit consistent at 386- Metzger, supra, & ally Hofstadter aca rhetoric of shape to analytical of understanding (discussing German Peter freedom.”); Byrne, see also J. demic freedom). or free- Lehofreiheit, academic “Special A Concern Freedom: Academic teach, the notion embodied dom Yale L.J. First Amendment” of re- to conduct be free professors should (1989) guiding or definition (“Lacking fear findings without publish search free academic [of the doctrine principle, state; it fur- the church from reproof law, up decisions picking floats dom] to determine authority denoted ther barnacles.”). result, As a hull lectures. See courses and content freedom academic invoking decisions essentially was id. at 386-87. Stuller, supra, consistency, see Lemfreiheit lacking to determine of students corollary right doctrine invoke the courts for themselves. their studies course of no arguably where circumstances id. 386. See at 262-64. Byrne, supra, application, see a brief review begin we Accordingly, with a committee In ,of concept of academic history of Profes University American Association in the United States. freedom (AAUP) report academic issued sors concept of adapted the in- freedom that century, nineteenth Prior to late Lehrf See university. American to the in this coun- reiheit higher education stitutions (ex at 1267-85 Metzger, supra, generally re- centers of try considered were influencing factors amining the scholarship, rather were but search freedom). definition AAUP’s passing received as means viewed concerned was large part, In AAUP See generation. next wisdom on professors measure obtaining for Metzger, P. with & Walter Richard Hofstadter lay adminis autonomy from professional Academic Freedom Development supra, Byrne, (1955); Stuller, and trustees.10 trators 278-79 the United States governments, or state the federal inter- ference not concerned AAUP was
4H 273-78; Metzger, at supra, at 1275-76. demic Freedom in Colleges Public The AAUP defined academic freedom as Say, Universities: O Does that Star- right “a claimed edu accredited Spangled First Amendment Banner: Yet cator, as investigator, teacher and to inter Wave?, Wayne (1993). 40 L.Rev. 4-5 pret findings his and to his communicate The 1940 Statement “has since been en- subjected conclusions being any without to by every major dorsed higher education interference, molestation, or penalization organization nation,” Byrne, supra, unacceptable because the conclusions are at “through adoption its bylaws, into authority some constituted within or contracts, faculty and collective bargaining beyond Stuller, institution.” supra, at agreements,” Amy Candido, H. Comment, (internal omitted).11 309 quotation marks A Right to Dirty?: Talk Academic Free- Significantly, the AAUP aca conceived dom Values and Sexual Harassment norm, demic professional freedom as a not Classroom, University 4 U. Chi. L. legal justified a one: The AAUP academic (1996-97).12 Seh. Roundtable 86-87 freedom on the of its social utility basis truth, a means of advancing the search for Appellees’ insistence that Act rather than its status as a manifestation of violates their rights of academic freedom rights. Amendment See Hofstadter amounts to a claim that the academic free Metzger, 398-400; & supra, at Byrne, su professors dom of only profession not a pra, at principles adopted 277-78. The norm,- al but a also constitutional right.13 report were later in a codified true, course, We disagree. It is of 1940 Statement that Principles of on Academic homage paid Freedom and has been promulgated by Tenure the ideal of aca AAUP and the Association of demic freedom in American number of Colleges. Hiers, See Richard H. Aca- opinions, Court often with reference to the at "largely (1984) time refrained from L.Ed.2d (concluding any involvement university acuity in internal "[1] af- gover- involvement in academic 273; Byrne, supra, fairs.” Metzger, at see nance much to recommend it as a matter supra, at 1277-79. of policy, academic but it no finds basis in the Constitution”). interference, 11. lay This freedom from howev- Additionally, we note that we are not here er, did not mean academics were im- upon called to decide the wisdom the Act professional judgments mune from the policy. as matter of may That an enactment peers. Byrne, supra, See at 277-78. utterly be unnecessary, profoundly or even unwise, does not affect validity its as a matter In view history, of this we do doubt law. constitutional that, professional practice, as a matter of uni- versity professors possess in fact type 13.Irrespective validity of this claim as Appellees. law, asserted freedom In- matter constitutional we note that deed, the claim of an academic argument institution to specter raises the aof constitu- "university” may fairly status as a said to enjoyed by only be tional a limited class of depend upon faculty Rabban, the extent to which its See citizens. David M. Functional pursue members are knowledge allowed to Analysis "Individual” and “Institutional” free of external Metzger, constraints. See su- Academic Freedom Under the First Amend- pra, ment, (explaining that the authors of Contemp. Law & Probs. report (1990). Indeed, the 1915 AAUP believed "that aca- audacity Appellees' demic institution potential restrict[ed] intellec- claim revealed impact professors tual freedom its ... litigation. Appellees cease[d] If are correct that so, university”). be a true Were it not ad- provides the First special protec- learning surely vances in would be speakers, tion professor hindered to academic then in a manner university harmful to the constitutionally would be entitled to conduct However, society large. institution and project a research on sexual fetishes while a Appellees appreciate fail to that the state-employed psychologist wisdom could constitu- given practice of a policy as matter of tionally precluded accessing very give practice constitutional status. same Such a manifestly materials. result Community Minnesota State Bd. Col- system premised odds with a constitutional 271, 288, leges Knight, equality.
412
conviction, plurality
affirming the
See,
Court
Regents
e.g.,
First Amendment.
of
action of
that the
indicated
214,
justices
of four
Ewing, 474 U.S.
v.
Mich.
the Univ. of
infringed
“unquestionably”
507,
523 the
L.Ed.2d
88
12, 106 S.Ct.
n.
226 &
aca-
of
in the areas
“liberties
Sweezy’s
v.
Cal.
Univ.
(1985);
Regents
expression.”
political
2733,
freedom
312-13,
demic
265,
98 S.Ct.
Bakke, 438 U.S.
250,
1203.
77
at
S.Ct.
Powell, Sweezy, 354 U.S.
(1978)
(opinion
750
57 L.Ed.2d
385
in the
Regents,
of freedom
J.);
essentiality
v. Board
Keyishian
The
675,
629
603,
17 L.Ed.2d
589,
universities
community
of American
U.S.
354
un-
Hampshire,
No one should
(1967); Sweezy v. New
self-evident.
almost
1203,
democracy
1 L.Ed.2d
250,
role in a
234,
S.Ct.
vital
77
derestimate
U.S.
at 261-
(1957)
id.
opinion);
guide
those who
(plurality
played
that is
J.,
(Frankfurter,
concur-
any strait
impose
To
youth.
our
train
result).
acco-
Despite these
leaders
the intellectual
upon
ring
jacket
never set
im-
has
would
Court
lades,
Supreme
universities
colleges and
our
that it
field
on the basis
No
our Nation.
regulation
future of
peril
aside a state
compre-
to aca-
right
thoroughly
Amendment
a First
is so
infringed
education
Bd.
Minnesota State
discoveries
that new
by man
demic freedom.
hended
Cf.
Knight,
that
Colleges
Particularly
Community
yet be made.
cannot
for
few,
sciences,
if
79 L.Ed.2d
where
social
true
(1984)
has
the Court
as abso-
(stating
accepted
that
principles
any,
right
in an
Scholarship
a First Amendment
cannot flourish
recognized
lutes.
policy-
in academic
distrust.
participate
faculty
suspicion
to
atmosphere
always re-
must
making).
and students
Teachers
to
study and
inquire, to
to
free
main
of the
Moreover,
examination
a close
un-
evaluate,
maturity and
new
gain
to
praised
right
cases indicates
civilization
our
otherwise
derstanding;
seek
Appellees
right
not the
the Court
and die.
stagnate
will
to
us
Appellees ask
here.
to establish
not-
aca-
right of
academic freedom
paean
This
to
First Amendment
Id.
recognize a
not vacate
profes-
did
belongs
withstanding,
plurality
demic freedom
Court,
Supreme
contempt conviction
Sweezy’s
individual.
sor
an
concluded
rather
grounds, but
constitutionalized
extent
all,
lacked
appears
Attorney General
academic freedom
right of
con-
Sweezy,
investigate
an institutional
recognized
authority
to have
See id.
process.
af-
in academic
due
self-governance
viction violated
right of
254-55,
We
neces-
provided the votes
Harlan
claim Justice
Appellees
Sweezy, in which
aca-
reverse,
explicitly on
relied
adopted
sary
first
Court
Supreme
“[t]he
Sweezy’s
concluding
of demic freedom
freedom.” Brief
principle of
the Constitu-
offended
contempt conviction
from
Sweezy
arose
Appellees
by Justice
recognized
right
tion.
activities”
of “subversive
investigation
an
individ-
Frankfurter,
not the
was
Attorney
Hampshire
General.
by the New
rather
but
by Appellees,
claimed
right
ual
investigation,
target of the
Sweezy, a
Paul
the Uni-
belonging institutional
re-
questions
to answer certain
refused
“When
Hampshire:
versity
of New
at the
given
he had
lecture
guest
garding
resulting
grave harm
against the
weighed
refus-
Hampshire. His
of New
University
the intel-
intrusion into
governmental
questions
and other
these
al to answer
justifica-
university, [the]
life
lectual
his incarceration
resulted in
ultimately
to discuss
a witness
compelling
de-
tion for
review
On certiorari
contempt.
in-
appears grossly
of his lecture
contents
Hampshire
the New
cision of
adequate.”
(1967)
Id. at
were
plainly
different minds as to
by publicly employed teachers,
such a
' And,
“right.”
nature
this
even if holding would be of little significance in
Sweezy could be read as
creating
indi-
light of the historical context. As
as
late
vidual First Amendment right of academic
1952,
March
mere months before Wieman
freedom,
holding
such a
would not advance
decided,
was
Court had ad-
Appellees’ claim of a First Amendment
to
hered
principle
employ-
right pertaining to their work as scholars ment
awas
not a
privilege,
right, and thus
Sweezy
teachers because
involved
could be conditioned on restrictions on the
the right of an
speak
individual to
in his
exercise of
rights
constitutional
by individ-
capacity
private
as a
citizen. See id. at
capacities
in their
private
uals
as
citizens.
249,
Several other cases decided at roughly
teacher that
regulations
statute and
dis-
time
Sweezy
same
as
involved restric-
qualifying
employment
individuals
tions
employees’
on state
rights
private
belonged
who
organizations
certain
vio-
See,
speak
citizens to
e.g.,
associate!
lated First
rights).
Amendment
By
Elkins,
Whitehill v.
the Court had begun to back
reasoning,
Justice Frankfurter’s
if
puters
control-
owned or leased
the state. Because
ling, would
uphold
dictate that we
the Act on
subject
university
Act
decision-
infringe
basis that it does not
the aca-
state,
making
to outside interference
university.
demic freedom of the
As ex-
pass
the Act would
constitutional muster un-
plained
places
note
the Act
with the
infra
der
understanding
Justice Frankfurter’s
ac-
university authority
approve
disapprove
ademic freedom.
sexually explicit
access
materials on corn-
Appel-
citizen,
germane
is not
and thus
See Slochower
position.
away from
Moreover, in the course of
551, 555,
claim.
Educ.,
lees’
Higher
Board of
(1956)
provisions
that the
conclusion
reaching
L.Ed. 692
558-59, 76 S.Ct.
the Court
vague,
pursu
unconstitutionally
professor,
dismissal
were
(holding that
impact of such
termination
required
the detrimental
discussed
ant to statute
freedom,
Fifth
who invoked
any public
laws on
self-incrimina
against
concern
special
“a
characterized
Court
*13
to official
related
603,
question
a
to
at
87
tion
avoid
Id.
Amendment.”
of the First
observing
process;
conduct,
due
violated
by the Court
discussion
675.
S.Ct.
not have
person
a
that
state
“[t]o
that
focusing
indicates, however,
it was not
that
em
government
right
a constitutional
teachers, but
rights
the individual
on
com
must
say that he
only to
ployment
New York
of the
the impact
rather
lawful, and nondis-
reasonable,
ply as institutions:
schools
provisions
proper
down
laid
eriminatory terms
was that
provisions
New York
of the
vice
1967,
And,
had
authorities”).
the. Court
upon
freedom
they impinged
Keyishian, 385
altogether.
rejected it
See Universi-
an
university as
institution.
675; see
605-06,
also
S.Ct.
87
at
U.S.
182, 198,
EEOC,
110
493 U.S.
v.
ty
Pa.
358-59,
347,
96
Burns,
U.S.
427
v.
Elrod
(1990) (noting
577,
571
L.Ed.2d
107
S.Ct.
(1976) (opinion
2673,
547
49 L.Ed.2d
S.Ct.
gov-
involving
a case
Keyishian was
that
J.)
held
Brennan,
(“Keyishian squarely
right of an
on the
infringement
ernmental
not,
could
alone
association
political
that
for
on aca-
itself
“to determine
institution
Amendment,
First
consistently with the
(internal
may teach”
who
demic grounds
for denying
adequate ground
constitute
omitted)).
marks
quotation
Indeed, it is now
employment.”).
employer
a
that
beyond question
rights
institutional
emphasis on
This
to sanction
carte blanche
enjoy
does not
recent Su-
in more
evident
particularly
of First
exercise
for
example,
jurisprudence. For
preme Court
Rankin, 483 U.S.
rights. See
Amendment
aca-
Powell discussed
in Bakke Justice
Therefore, to
383-84,
at
program
a
it related
demic freedom
Shelton,
Whitehill,
that
the extent
by a med-
established
quotas
of admissions
a publicly
that
held
may have
Wieman
and on
Keyishian
Relying on
ical school.
disciplined
may not be
employed teacher
Frankfurter’s
concurrence
Justice
Amendment
First
exercise
for
aca-
characterized
Sweezy, Justice Powell
citizen,
holding
that
has
private
a
rights as
a uni-
freedom of
as “[t]he
freedom
demic
extending
by later cases
been subsumed
as to
judgments
make its own
versity to
public employ
to all
protection
the same
312,
Bakke,
at
438 U.S.
education.”
ees.
Powell, J.). Similar-
(opinion of
S.Ct. 2733
a First
that have referred
cases
Other
aca-
Court described
Ewing
ly,
freedom
of academic
right
Amendment
the institu-
concern of
as a
demic freedom
generally
terms
so
have done
Ewing,
tion. See
For exam-
institution,
individual.
not the
S.Ct. 507.
a
Court considered
ple, Keyishian
never recog
Court
Significantly, the
a New York statute
challenge to
renewed
a
professors possess
nized that
provisions of
certain
regulations,
freedom to
right of academic
Amendment
Adler, designed “to
upheld which were
themselves
content of
determine
or retention
appointment
prevent
scholarship, despite op
their courses
employment.”
in state
persons
‘subversive’
example, in Ep
For
to do
portunities
so.
S.Ct. 675.
385 U.S.
Keyishian,
Arkansas,
above,
person
discussed
like the cases
Keyishian,
(1968),
con
the Court
15.Interestingly,
concurring justices
(internal
prohibited
several
subject
quotation marks
the
omitted)).
criticized
discussion of academic freedom
in majority opinion.
the
reject-
Justice Black
16. Justice
ed the
Brennan's omission of
altogether:
discussion
freedom
majority opinion
from his
in Ed-
I
...
ready
am
person
to hold
wards particularly
noteworthy
light
of his
hired to teach school children takes with
subsequent
Knight,
dissent in
he
him into the
classroom
constitutional
argued
university faculty possess
a con-
right
economic,
sociological,
to teach
politi-
right
stitutional
par-
academic freedom to
cal,
religious subjects
or
that the school's
ticipate in
policymaking.
institutional
managers do not want discussed....
I
295-300,
Knight,
IV. below, in no actually the true academic is reject the conclusion We attempts support—least need of such §§ 2.1- Ann. court that Va.Code district judiciary. all from the federal -806, state prohibiting 804 to time, the con- From time even within explicit material sexually accessing controversy, fines an III case or of Article or leased computers owned general personal jurists express their agency-ap conjunction except (and, subjects hon- views related project, infringes upon proved research unrelated) est, le- particular often rights of state em First Amendment It best that we gal issues before them. reject Appellees’ ployees. further We infrequently, ideally so would do we Act constitu even if the contention that so, naturally gives never do because such majority of state tionally valid as whether, legitimate question rise to the it in to the extent employees, it is invalid law, opinions only of when we do write rights freedom on the academic fringes personal our views have influenced or we university faculty.18 Accordingly, re dispassionate, rea- supplanted even the district court. judgment of verse'the Judiciary analysis soned that defines REVERSED At points, in our constitutional scheme. opin- Wilkinson writes in Judge what his LUTTIG, concurring: Judge, Circuit fairly ion as more might be understood *15 opinion fine join Judge I in Wilkins’ per- a general the nature of statement of , I that the Common- agree for the court. viewpoint he on sonal comments regulate its em- Virginia may of wealth legal non-legal, a of matters range and “bestiality, lewd exhibi- ployees’ access to impact the of including: aggregate social excitement, nudity, ... sexual health, tion of “subjects touching physical our abuse, sexual conduct or sadomasochistic our well-being, pros- our mental economic fetishism,” urophilia, or coprophilia, ... perity, ultimately appreciation our for and public’s public’s computers, on the around us world different time, offices, and at the public’s on the brought that that world heritages have public’s expense, infringement on without about,” 428; at post perni- asserted of em- right those Amendment college affirmative ciousness of action prece- Court’s ployees. The progress, our cultural codes to contrary not countenance the 430-31; dents would at the need for post intolerance Judge conclusion reached Wilkinson every setting, of sexual harassment the dissent. 431-32; post “exponential growth society general of for that freedom” conclusion, his Judge Wilkinson reaches technological comes with “modern de- it, support writing, as understands he Internet, velopment” post analyt- of its academic Because freedom. 433-34; importance of federalism pyrrhic victory it offers ical flaws and the system our governance, post 433— that I believe academy, judicial imperative re- even Judge true academic will that understand straint. Post at 433-34. ultimately opinion Wilkinson’s will be express opinion But service to the real cause he does also little freedom, superficial appeal. us, its that that is a despite issue is before there Further, overbroad). 18. Our the Act does not in ed” cannot be conclusion that unconstitutionally fring vague protected speech dispositive is the Act is not be e ordinary Appellees gives “person intelli claim the Act is overbroad. cause it that Barry, gence opportunity to know what See Boos v. 485 U.S. reasonable 333, (1988) prohibited.” City (recogniz Grayned Rockford, is L.Ed.2d 104, 108, 2294, 33 ing regulation “does L.Ed.2d that not reach (1972). constitutionally protect- substantial amount of right First Amendment free- “academic cause the limited restrictions in this Act dom” and that other employees do are administered within the traditional possess analogous First Amend- structure of university governance, I do right pursue ment they matters that not believe Virginia statute contra- important performance believe are of venes the Constitution.” Post at 434. public responsibilities. Because he And his entire discussion focuses on the writes separately join and does not in ei- need special for such a right for those ther of the court’s opinions, principal the- Indeed, academic community. nonaca- Judge opinion Wilkinson’s is an signifi- demic employees are never men- cance to our court. Accordingly, even Wilkinson, tioned Judge except in pass- it though only be that of a single it judge, ing, and in ways that are substantively right that that analysis subjected to irrelevant. Judge Wilkinson simply, and the rigors of conventional legal analysis. quite genuinely, believes that academy subjected When to such I analysis, believe special has a contribution to make to soci- apparent the conclusions he ety, beyond that that the ordinary citizen reaches and the means which he reach- make, is able to and that “speech” es those conclusions are analytically inde- enjoy should protection constitutional fensible. other public employees’ speech should not. First, it is unclear even in whom Judge Second, at the same time Judge Wilkinson would create his new constitu- Wilkinson right. tional For fails example, identify even in whom he reading opinion, his would one vest the cannot right discern whether he constitutional that he creating right in professors create, would generally, he also never defines the in only university professors, in all aca- First that he so unre- demics, in all institutions of learning, in servedly court, would recognize. As a we universities, in all public employees, have before aus discrete question of law above, some of the inor all of the above. as to particular whether the speech limited *16 All that is clear is that he emphatic is that by the statute interpret we subject is to a new right constitutional must be created. protection the of Amendment, the First If else, there were nothing might sup- one majority and the addresses to that itself pose from fact the that he discusses the speech and only speech, to that as a court impact upon academy the purportedly only Judge should. Wilkinson is certain that as “illustrative” of the Commonwealth’s “the First Amendment does not slumber statute on all public employees, post see at while the state regulates” speech the (“I the application consider statute’s here, question at post legis- that “the academic inquiry as a illustration of useful scythe lative [has] cut[ ] broad swath how the statute restricts public material of through public the field of concern.”) added), (emphasis that he would speech,” post at that “some umbrella recognize for public all employees the protection” of must be public extended to same right constitutional that apparent- he employee speech, lest they be “caught in ly would create for academics. At the end rain,” the post at and that no “stream of day, the his and con- analysis or tributary” of the “broad of river Ameri- clusion confirm that indeed he would not speech off,” can [should shut post be] at recognize the same right public all em- 435., However, he never actually identifies ployees, and that his new-found is speech the that he concludes is entitled to reserved professors for alone. He begins protection.' First Amendment opinion his with that “By conclusion: thus preserving the Thus, structure of university he self- begins opinion his as if the - governance, the speech statute withstands consti- that he concludes is protected is tutional, scrutiny.” Post at 426. He speech ends of “Internet access.” Post at opinion his with this same later, conclusion: “Be- page 426. One he states that of protection fines, rather, that is.entitled case, is in this inquiry threshold Amendment, concept that one for aca- the Internet of “the use
whether
research
not
includes
assume
must.
matter
of
relates
research”
demic
Post at
teaching.
also
writing, but
and
pages
426. Four
Post at
public concern.
.
432.
something entirely
that,
suggests
he
after
issue,
and
Judge
different —that
Wilkinson
that
only speech
statute, is
by the
relevant,
is
that
addressed
and
identify as
explicitly
even “academic
and
inquiry,”
obvious,
only speech
“academic
that
is the
for reasons
at,428.
very
Within
curiosity.” Post
purposes
actually is relevant
that
it is
says
he
paragraph,
same
That
before us.
-controversy
case
instead,
but,
“research
curiosity,
access,
com-
on state
is Internet
“speech”
medi-
as
subjects such
socially useful
time,
that
to websites
and on
puters
anthro-
psychology,
cine,
anatomy,
biology,
exhibition
“bestiality, lewd
displays offer
history, litera-
economics,
law,
art
excitement,
pology,
sexual
sexual
nudity,
...
“matter
is
that
ture,
philosophy”
abuse,
and
... co-
or sadomasochistic
conduct
para-
In the next
Id.
concern.”
Va.
public
or fetishism.”
prophilia, urophilia,
that,
it is
that
says
he
after
graph
“academic
§Ann.
2.1-804. And
Code
is at
fields”
of academic
“content
proffered
is
particular
that
research”
in that
And later
Post
issue.
First Amend-
deserving
as
this court
it is “In-
implies that
paragraph, he
same
plaintiffs,
professor
protection
ment
relevant
research”
is,
ternet
be,
accepted
and
that must
speech. Id.
example of the
an
as
Judge Wilkinson
'
concern,” in-
“matter
highest
the In-
[of]
“use
between
vacillates
He
-
court,
the district
cludes,
described
write”- and “re-
to research
ternet
a nude woman
images
“graphic
as the
writing” generally
search
erection, and a
chains,
man with
a nude
very next
in the
interest
in anal inter-
engaged
and woman
man
he later
at 428. And
Post
paragraph.
Allen,
F.Supp.
course,”
Urofsky v.
see
in which
paragraph
in the same
suggests,
Or,
(E.D.Va.1998).
that re
634, 639
research
“a professor’s
he states
us, a
before
in the record
appears
search
the First
projects”
holding
a woman
close-up photograph
it actu-
speech, post
protected
buttocks,
her dilated anus
so that
her
open
is the
work” that
“professor’s
ally is.
multiple ear
pierced with
genitals,
concern,
post
a matter
speech on
182;
visible,
photograph
J.A.
rings,
very next
And he recites
at 428.
*17
and
false
wearing
penis
a
of- a woman
[profes-
content
that it is “the.
sentence
another
with
intercourse
in anal
engaging
at issue
that is
Internet research”
sorial]
183;
sex,
a
J.A.
later,
of unidentifiable
individual
429, only page,
a
case,
post
in this
apparently
man
a naked-
photograph
the social
“[s]peech in
it is
that
to observe
a chain to
from
his wrists
hanging by
sciences,
learned-profes-
physical
para
sexual
is,in
attached numerous
which are
sions,
that
and the humanities”
of a
170;
photograph
J.A.
phernalia,
it
“cen-
interest,
is
public
this
woman,
wrists
spread-eagle, whose
naked
and social
discourse
democratic
tral to our
and extend
.chained
been
have
later
ankles
pages
Two
Post at 430.
progress.”
close-up of
179;
ed,
photograph
that is
J.A.
speech”
still,
says
he
it is “academic
181;
man,
and a
J.A.
genital
the erect
concern
public
matter of
on a
speech
whose
a naked woman
photograph
On
at 430-31.
Post
he
that
addresses.
be
together
padlocked
have been
wrists
it
that
is
says
page, he
that same
he nev
back,
Although
her
J.A.
hind
Internet
“informational resource”
speech,
to this
And,
addresses himself
final-
er
speech. Id.
relevant
that is the
case, Judge
in the
at issue
it is “aca-
us that
tells
ly, Judge Wilkinson
and con-
content
that
says
“[t]he
Wilkinson
freedom,”
nowhere de-
which he
demic
(as
text of the
covered
plaining
statute
to an issue
that
not before
leave no
in question
doubt
the law
today)
the court
that courts must be reti
affects
on matters of
con-
cent to review the decisions of deans and
cern.”
at 427. I agree
Post
that the fact
other university administrators on whether
university professors,
with no appar-
to grant research waivers under the stat
pedagogical
therefor,
ent
reason
are ac-
issue,
(“It
ute at
post at 433
is well-estab
cessing
material like this at
taxpay-
lished that federal courts have no business
expense,
time,
ers’
on public taxpayer
and acting as surrogate
deans.”),
university
his
taxpayer-purchased comput-
fanfare can hardly be heard over the clash
ers—all
auspices
under the
ing
“academic
from his own unabashed creation of
research” —is a
public concern,
matter of
new
rights
constitutional
out of whole
I
but
that it
believe
is so
quite
for reasons
cloth—an unabashedness that forces his
different
Judge
Wilkinson’s.
surrender of
high
ground that he has
assumed in the debate
judicial
over
activ
Third, even-if
Judge
one takes
Wilkinson
See,
Babbitt,
ism.
e.g., Gibbs v.
214 F.3d
to hold that
“academic
freedom” or
(4th Cir.2000)
J.)
491-92
(Wilkinson,
“academic research” that is entitled to “the
(“The irony of disregarding limits on our
safeguards
ancient
of the First Amend-
selves
the course of enforcing limits
ment,”
post at
he does not
at-
even
upon
will assuredly
others
not be lost on
tempt
support
the existence of
such
those who look to courts
respect
re
right in either the text of the Constitution
straints
imposed by
law.”);
rules of
or Supreme
precedents,
Court
or even
Earth,
Friends
Inc. v. Gaston Cop
through resort to
history
traditions
per
(4th
Recycling Corp.,
149, 163
204 F.3d
of our Nation. He simply asserts that
Cir.2000) (en banc)
J.) (“This
(Wilkinson,
(and
be)
there is
assumes
there
must
case illustrates at heart
importance
a First
such speech,
judicial restraint.”);
Johnson
Collins
however it
this,-
is defined. And
in the
Co., Inc.,
Entertainment
199 F.3d
face of the substantial Supreme Court and
(4th Cir.1999)
J.) (“Le
(Wilkinson,
725-26
precedent
other
by Judge
marshaled
Wil-
gal
yield
constraints cannot
even to the
kins to the effect that
there is no such
intentions,
noblest of
judicial
visions of
right, and certainly no such
pro-
individual
the social good will differ from issue to
right.
fessorial
Ante at 411-15. As Pro-
issue
will,
and from judge to
judge,
if
Rabban,
fessor
Judge
on whom
Wilkinson
unchecked,
allowed
run
thwart
ex
so heavily relies
point,
for a different
pression
will.”).
of the democratic
put it:
Fitting academic freedom within the ru-
Fourth, when, in all but afterthought,
bric of the first amendment is in many
Judge
finally
Wilkinson
turn to
respects an extremely difficult challenge.
balance,
Pickering
determinative
ig-
he
freedom,”
term “academic
in obvi- nores the
aspect
critical
analysis
ous contrast to “freedom of the press,”
set forth
Court:
ques-
is nowhere
mentioned
text of the
*18
tion
plaintiffs
the
whether
speaking
in
first amendment.
It
is inconceivable
their roles as citizens or in their roles as
that those
debated and
who
ratified the
employees.
In all three
its
of
seminal
first amendment
thought about aca-
on public employee
cases
speech, the Su-
demic freedom.
preme
placed heavy emphasis
Court has
Rabban,
David M.
Functional Analysis
speakers
the
in question
whether
were
of
“Individual”
and “Institutional” Aca-
acting in their roles as employees.
In
demic Freedom
the
Educ.,
Under
First Amend- Pickering
563,
v. Board
391 U.S.
ment, 53 Law
Contemp.
227,
&
Probs.
88
(1968),
S.Ct.
phasized
authors, the
the
insubstantially
character
ther the
and
tangentially
only
[was]
the
expression,
their
public
subject matter of
of the
subject matter
involved
expression
teacher,”
of their
the content
by a
effect
made
communication
duties,
kind
reason,
“necessary to
nor the
it was
official
that,
on their
for
the
rele-
member of
has
they
as
address
the teacher
audiences
regard
Id.
be.”
[sought] to
employment.
he
public
to their
general
vance
Myers,
In Connick
1731.
88 S.Ct.
add-
(emphasis
1003.
Id.
1684, 75 L.Ed.2d
461 U.S.
con-
public
ed). Thus, although the
question
(1983),
presented
no
distinction
interest
cern/personal
be fired for
could
prosecutor
whether
Connick, the
under
importance
doubt of
her work-
questionnaire
circulating a.
is, by force of
citizen/employee distinction
importance
made the
the Court
place,
so,
authorities,
at the
equally
these three
clear
distinction
employee/citizen
very least.
only that
“We hold
holding sentence:
very
or other-
quotes
never
Judge Wilkinson
not as
speaks
employee
when
passages
key
these
any of
wise references
concern, but
matters of
upon
citizen
Connick,
In-
NTEU.
Pickering,
from
upon matters
an employee
as
instead
Judge
in which
deed,
only passage
interest,
the most un-
absent
personal
fun-
any reference
makes
Wilkinson
circumstances,
court is not
a federal
usual
'individu-
between
distinction
damental
to review
in which
forum
the appropriate
”
employee and
as
in his role
acting
al
personnel decision....
of a
the wisdom
citizen, he
as
his role
acting in
individual
(emphasis add-
Id. at
the Commonwealth
our court and
criticizes
States
ed).
ironically,
Finally, and
United
post
it.
over-emphasis on
for our
Union,
Employees
Treasury
v. National
(“[T]he
astray by
goes
...
majority
426-27
1003, 130 L.Ed.2d
454, 115 S.Ct.
fact that
on the
emphasis
placing exclusive
(1995),
authority relied
most
employ-
speech of ‘state
covers
the statute
Wilkinson, provides
Judge
extensively by
”);
employees.’
capacity
in their
ees
powerful indictment of
most
perhaps
Buncombe
Boring v.
id. with
compare
to address
failure
Judge Wilkinson’s
Education,
F.3d
Bd.
County
There,
distinction.
employee/citizen
(“Conceiv-
J.,
(Motz,
dissenting)
375, 379
gov-
federal
banning
a law
striking down
majority’s holding
grounded
ably, the
collecting
hono-
ernment
role
make the
misreading Connick
writing, the Court
speaking or
for
raria
determi-
speaks
which a
that:
emphasized
speech merits
whether her
native of
employees]
plaintiff-government
[The
And, in effect
protection.”).
expressive
compensation for their
seek
out
distinction
employee/citizen
in their n
to read the
citizens,
capacity
activities
n
successors'altogether,
Pickering and its
They
employees.
not as Government
eventually completely
Judge Wilkinson
status
employment
that their
claim
analysis into
employee/citizen
mierges the
or mar-
bearing
quality
on the
more
no
analysis, criticiz-
public concern/private
output than
literary
ket value
their
“begin[ning]
ing
Commonwealth
or Melville.
on that of Hawthorne
did
inquiry
concern
end[ing]
public'
the content
exceptions,
fewWith
pay-
plaintiffs’
signature on
with the
messages has
employees’]
[government
their com-
number on
or the serial
checks
jobs
nothing to do with
*19
Thus, by the time
Post at 429.
puters.”
have
adverse im-
arguably
not even
seemingly without
although
through,
he is
offices in
efficiency of the
on the
pact
so, Judge
has
realizing that he
done
even
They
not address
do
they work.
altogether
purged
has
Wilkinson
or su-
composed of co-workers
audiences
Pickering
Connick and
public employ-
the
ing qua public employees, not qua private
ee/private citizen analysis that he himself
citizens.
I cannot imagine that anyone
consistently
See,
held is critical.
e.g., would contend otherwise. Certainly, the
(4th
Balog,
Robinson v.
F.3d
professors before us are not so brazen as
Cir.1998)
J.)
(Wilkinson,
(“By Responding
to do so.
to the Board’s invitation to
at a
testify
Fifth,
respect
-with
public
hearing
portions
those
cooperating
law
investigators,
Pickering
enforcement
the
analysis
Robinson
to which Judge Wil-
spoke
Marc
in
‘capacity
their
as ...
kinson
himself,
does address
only
does
public employee[s],’ DiMeglio, 45 F.3d at he identify incorrectly the
805, but
upon
as
pub-
‘citizen[s]
matters of
speech
balanced,
to be
he incorrectly iden-
Connick,
lic concern.’
It is unsurprising Judge that that employee speech Wilkinson was the relevant would avoid question whether speech under Pickering. plaintiffs speaking here are in their roles Thus, consistent with his exclusive focus as employees or in their as roles speech academic half first of his citizens, private the answer to opinion in which he the employee identifies question
that lies the refutation of the speech at issue—which focus he said at constitutional that Judge Wilkinson point that was “illustrative” For, only, post concludes see exists. university when professors 427'—he identifies as the university entirety conduct research on time, university university relevant employee speech computers, for purposes of and in duties, conduct of their university it his Pickering balance the academic indisputable is they are performing discussed in the first half opinion. of his their role as employees of the uni- (At point opinion, this in his Judge Wilkin- versity, though even Judge Wilkinson is son unwilling to assert that unwilling to accept as much. See post to a public concern; relates matter of rath- (“[I]n their research writing uni- er, he says only that it “potentially touches versity professors are not state mouth- 432.). on” such matters. Post at If one pieces they speak mainly for them- — chooses to only balance the academic em- selves.”). They are as different as can be ployees’ interests, as does Judge Wilkin- imagined from the teacher who wrote to son, then one must against balance the newspaper Pickering, prosecu- interest only governmental interest in tor who circulated the questionnaire in regulation of that speech, not the Connick, or the federal government em- government’s interest in of that regulation ployees gave who speeches and arti- wrote same kind of by all of the state’s cles for general public NTEU. public employees, as Judge Wilkin- professors’ research is conducted on com- son. only And the principled conclusion puters and via Internet access services that one can upon reach properly thus paid are both thus, for public; balancing the correct is that interests professors’ paid research itself Commonwealth’s statute cannot stand —a people Commonwealth (even consequence that Judge Wilkinson Virginia. Indeed, professors paid are at the analytical cost incredibility) to conduct the that they research do. For, unwilling accept. the academic professors’ research belongs thus to the if employees’ (at First Amendment interests are least sense that here). profound word, Judge matters Wilkinson In believes when conduct- be, ing their them to government’s then the they may research so better interest discharge professorial responsibilities regulating the university professors’ public, professors speak- these private access to prohibited materials *20 within the material proscribed to the by cess pales purposes research individual is, office and own professor’s the privacy comparison. to so, insignificant comparatively obviously only unquestionable is, it is That free- in academic interest professor’s the is general research that academic Judge that this reason It is for dom. there that also but importance, utmost of a recognition seemingly bold Wilkinson’s that research legitimate be could well university pro- in the right constitutional necessitate, to access entail, if not would (indeed, as victory pyrrhic a fessors is but which access to material very kinds of the employees), public for all indirectly it is stat- the Commonwealth’s prohibited is yield must that right it is that unquestionable it is also ute. And the views of uninformed and subjective to private access professor’s individual that, beyond to even and judiciary, federal own sanctity of his materials such inter- negligible governmental most the little, any, disruptive if have would office ests. . Indeed, I at all. workplace the effect course, academic is not it Of interest governmental imagine cannot Picker- under must be balanced that alone university professors specific either belief. Judge Wilkinson’s contrary to ing, any other as to to them applicable equally employees of all It is those override that would employee must that in “research” engage would who And, obvi- interests. freedom interest the state’s against be balanced Wilkinson, de- Judge can ously, neither speech by particular of this regulation of the Common- affirmance spite his consequence employees. all of its very that ground on the statute wealth’s that is one balancing, proper this in the avoidance interest the state’s special recognize is unable profes- surpasses disruption workplace all over in academics right Amendment to research right sors’ First consequence other —a by the statute. proscribed the matters unwilling likewise Judge Wilkinson that all; at he identify none he only does Not incredibility) (also analytical at the cost fact, In attempt to do so. not even does accept. work- avoidance of interest the state’s under- Sixth, tellingly, in his and most bal- Judge Wilkinson place disruption, express disapproval haste to standable professors’ interest against ances de- access has been to which material freedom,” wholly unattributa- “academic Commonwealth, Judge Wilkin- by the nied post plaintiffs. See professor ble perform any balanc- actually does son' (“The material on web of such posting total of at all. The his at all—none ing workplace led to offices'has sites is that Pickering balance reasoning on the that such sexu- complaints disruption “re- statute revised Commonwealth’s to hostile contributes matter ally graphic material” range of a more limited stricts environment.”). work statute, at 432— post predecessor than words, really if one believed In other as to say nothing course is to which of right constitutional is an actual
that there respective weight relative that it is freedom and to academic Given the interests. governmental Wil- by Judge importance believed attempt absence of complete inval- kinson, unhesitatingly balancing he would of in- then required Supreme Court— as statute reason- Pickering, Commonwealth’s idate the under terests that, (at least plaintiffs professor that can be drawn urged by conclusion able them) Judge opinion, in his point sustain applied to at least —not result of as “abuse” well plaintiffs’ research knows Wilkinson dismiss the' opposite precisely “misconduct,” balancing Judge Wilkin- would That bal- to reach. which he wishes the state’s son, post 481-32—because validation of yield either the would ancing ac- professor limiting interest individual *21 the Commonwealth’s statute as to all em- demic freedom” was itself derived in re- State, ployees just sponse professors State’s to “threats to from uni- employees, versity academic Rabban, the invalidation of trustees.” David M. employ- Analysis the statute as to all of the Functional State’s “Individual” and ees, academic and “Institutional” non-academic alike. Academic Freedom Under Amendment, the First 53 Law Contemp. & Judge Wilkinson believes he has (1990) (“Threats Probs. profes- undertaken equivalent the substantive sors from university trustees loomed be- required balancing interests professional hind the seminal definition [of reaching his conclusion that the state’s academic produced freedom] in 1915 by a outweigh interests those of the relevant professors committee of eminent for the public employees, goes because he on to first annual meeting of the American Asso- statutory consider that the power waiver ciation University Professors university resides itself and thus (‘AAUP’).”). that the intrusion on the employees’ But, even more fundamentally, the uni- speech interests is “minimal.” Post at 432. versity does not exercise the waiver au- course, Of in neither substance nor form is thority respect to the vast number of equivalent this the Pickering bal- public employees as to whom the Common- ance. wealth’s applies, statute also a fact that is ignored by Judge Wilkinson. Compare However, even if one views the waiver post at 432 (observing that “[u]nder provision as a free-floating savings provi- Act, the judgment ultimate on whether a sion required somehow related to the Pick- requested waiver a bona fide re- balance, ering as Judge Wilkinson mistak- project search system resides in the does, enly provision then that should not university governance”) (noting with id. have the constitutional effect Judge next sentence that grants “[t]he statute Wilkinson concludes it If has. one be- ‘agency authority heads’ the approve lieves, he, as does that the constitutional waivers”). these provision The waiver right of “academic belongs freedom” may, view, in Judge Wilkinson’s save the university professor, individual then the Commonwealth’s statute from constitution- fact government, the state acting al infirmity when the applied statute is through administration, the university’s against university professor, because it power holds the of censorship pos- cannot represents repository of the critical sibly be viewed as a feature that saves the authority of self-governance in the institu- statute from unconstitutionality. may It itself, tion rather than in the state. See id. that, choice, put if every profes- But one may Judge be assured that Wil- sor power would rather have the of censor- kinson provi- would not so view the waiver ship rest with their colleagues sion when the statute applied instead than with the state’s elected officials. servant, against ordinary public who is However, professor no would believe “left in by Judge the rain” Wilkinson. For his of academic freedom is safe- servant, ordinary public to confer the guarded merely because it can be denied authority waiver in the relevant state de- only by politieally-accountable his universi- partment be, in Judge head would Wilkin- administrators, ty litigation- words, consign son’s that employee’s brought by professors notwithstanding the speech to “a First Amendment nether- state’s authority the ivaiver conferral of post world.” See at 431. fact, upon university proves. In — professors one of the Judge Finally, whom Wil- Judge opinion Wilkinson’s is, kinson extensively explained relies today concurrence it should come as no relies, Judge article on which surprise, Wilkinson irreconcilable with our own Cir- the seminal academic definition of “aca- precedent Boring cuit’s v. Buncombe secondary school teachers’ Education, F.3d 364
County Bd. of in, if not participate right to in which he Amendment (4th Cir.1998), opinion of our curriculum entirely, Boring, we held direct In at the time. joined *22 Amendment young.1 a First against unequivocally, here, from that indistinguishable challenge of on the basis assertion The factual have does not a teacher high a school
that distinguish would Judge Wilkinson secondary right Amendment doctrinal revealing of the itself Boring is Judge Wilkin- itself. curriculum school’s himself vis-a- which he finds in conundrum incompatibility of the son, understanding distinction For his needed Boring. vis position he Boring the in with position his that, asserts Boring, Judge Wilkinson Boring on the distinguishes today, takes write, “they and research professors when choices, that, a curriculum unlike ground themselves,” post mainly for speak does writing not and research professor’s of which he can support a declaration government. the bear imprimatur Law article from a but lone cite course, did not Boring, post at 428-29. Problems, (citing id. see Contemporary & impri- official notion of any such upon rest Rabban, Analysis Functional David M. said, instead, rested, sole- as we matur. It Aca- “Institutional” and “Individual” pos- teacher that the belief ly on the firm Amend- the First Freedom Under demic right the no First sessed Probs. ment, Contemp. & 53 Law the ratio- itself; this was that curriculum (1990)). that the If it is the case 242-244 Judge is as decision clear nale for our operate inde- professors university’s public the text of it is from the as Motz’s dissent public and supervision pendently of state attempt to distin- To majority opinion. surprise to me. it is a then accountability, im- of official Boring ground on the guish it would come as I am that confident And not betray once is to primatur pro- public, pays who surprise to the holding of with essential disagreement they may in order that fessors’ salaries case, agreement fundamental that but public important research for conduct post at Compare case. the dissent money profes- tax without whose and asserting that Wilkinson (Judge not be writing would research sors’ “ surely speech [here] ‘content possible. and social political on matters touches ” analytic flaws these I do not chronicle F.3d at Boring, 136 importance’ with sake of analysis Judge Wilkinson’s J., (“Although Bor- (Motz, dissenting) building Collectively, chronicling. each consti- does not itself ing’s in-class other, I disguise, debate, these errors obviously upon it pure public tute Wilkinson, the Judge even from overwhelming public believe matters of ‘relate to’ counter-precedential ”)); uncomfortably id. at 379. If .... see also concern can, that he conclusions counter-intuitive is “a matter of writing research and result, comfort- seemingly quite reach as intendment of Connick concern” within identify in whom If ably. one does be- Pickering, Judge as Wilkinson created, then he would be particular is, surely right more “a matter it then far lieves consequences of our need never confront the curriculum is concern” right schools, of the same principled extension secondary and the elementary and If one does similarly situated. elementary far clearer is consequently concurrence, Boring that we opinion in our even a hint when the in his 1. Elsewhere different, forbidding presents Judge Wilkinson viewed state statute need would have chiefly premised not Boring a decision any differently than teaching of lesbianism rather, but, the neces- imprimatur, official high forbiddance— school’s we viewed the nor, governance. Post 432- sity of institutional reasoning, ever given would one our 33; Boring supra. was no see discussion suggestion opin- expect such to find than governance more about institutional ion. imprimatur. There is not was official about created, identify right the actual than other servant. His subject obliged then he is never to reconcile the to the limitations of the First more, precedent creation of with the Amendment certainly just no but less, ignores step certainly extant. If one the critical no than is the custodian’s. analysis, the established then he has That we should all be accountable to the If preordained places people, his conclusion. one equally, accountable should a thumb on the scale of the determinative cause none of us to bridle.
balance, resulting then the measure will be HAMILTON, Senior Circuit Judge, consequence foreseeable concurring:
weighted
if
balance. And
one conducts no
*23
all,
balancing at
then the measure will be
Appellees
claim
they
a
have
he,
alone,
that which
and he
it is.
tells us
First
right
Amendment
to access and dis
sexually explicit
The true
seminate
academic should find small
materials on
computers
comfort in
that are owned or
such
defense of his academic
leased
Appellees’
freedom.
the Commonwealth. The
ac
to,
of,
cess
and dissemination
sexually ex
In reality,
the true academic is
plicit materials
necessary
is
for them to
in no need of defense. The court holds
perform
educators; but,
their duties as
today,
uniformly recognized by
as has been
nevertheless,
Appellees’
to,
access
Supreme
through
years,
Court
of,
dissemination
sexually explicit materi
only that there is no constitutional
als is
accomplished
capacities
inquiry unique
professors
free
to
or to
employees.
Appellees’
Because the
public employee,
other
the First
to,
of, sexually
access
and dissemination
protects
rights
pub-
of all
explicit
accomplished
materials is
in their
employees equally.
lic
Neither the value
capacities as state employees, the court
nor the
inquiry
contributions of academic
today correctly
im
concludes under the
society
denigrated by
such a hold-
plicit holding of our en banc decision in
And
ing.
to believe otherwise
to sub-
is
Boring v. Buncombe County Board
Ed
scribe to the fashionable belief that all that
(4th Cir.) (en
ucation,
banc),
136
364
F.3d
is treasured must be in the Constitution
denied,
813,
cert.
525 U.S.
119 S.Ct.
if
and that
it is not in the Constitution then
(1998),
142
L.Ed.2d 36
it is not
precisely
treasured. But
because
and,
employee, speech,
this case is
there
it is a constitution
interpret,
that we
not all
fore, not entitled
pro
to First Amendment
that we treasure is in the Constitution.
Furthermore,
correctly
tection.
the court
Academic freedom paradigmatic
of this
rejects
Appellees’
contention
even
freedom, however,
truism. Academic
if
constitutionally
the Act is
valid as to the
paradigmatic
also
of the truism that not all
majority
employees,
of state
it is invalid to
that we treasure is in need of constitution-
the extent
it infringes on the academic
university worthy
alization. No
of the
rights
university faculty.
freedom
attempt
name would ever
suppress
true
joined
freedom—constrained
I
Judge
or uncon-
Motz’s
in Boring
dissent
And,
did,
strained
if it
explains
constitution.
persuasively
why
not
it
employee
would
find itself without its
enjoy
greater
should
far
faculty;
it would find itself
protection
without
the Amendment
than that contem-
public support necessary
very
plated
for its
exis-
by Boring.
id. at
Left
378-80.
devices,
tence.
my
Court has recognized
own
I would hold that the
wisdom,
it through
presci- Appellees’ speech
much—be
in this case is entitled to
ence,
simple
duty to the
protec-
Constitution— some measure of First Amendment
tion,
years
for over two hundred
It
application
now.
thus
triggering
that,
end,
recognized
in the
the academic Connick/Pickering balancing test. How-
ever,
can be no
people
less accountable to the
being
bound
the en banc court’s
employ-
framework for
through
banc
the en
a decision
Boring,
decision
v.
Pickering
established
ee
present
to revisit
court chose
Educ.,
88 S.Ct.
U.S.
opin- Board
majority
the court’s
case,
I concur
(1968),
and Connick
L.Ed.2d 811
ion.
461 U.S.
Myers,
v.
clear
separately to make
write
Finally, I
(1983). But
the stat-
because
L.Ed.2d 708
question
unanswered
that we leave
range of
regulates a broad
ute at issue
who
a governmental
whether
“gives rise
widespread impact
speech,
sexually
disseminate
to access
seeks
than could
concerns
more serious
to far
level of
rising
materials
explicit
decision.” United
supervisory
any single
concern,
in his or her
matters of
Treasury Employees
v. National
States
rath-
employee, but
governmental
as a
role
454, 468,
Union,
citizen,
some
entitled to
private
er as
(1995) (“NTEU’). More-
130 L.Ed.2d
protection.
First Amendment
measure
over,
constitutes
Act’s restriction
issue
case leave that
of this
The facts
it chills Internet
prior restraint
day.
another
Near
happens.
before
research
Cf.
Olson,
697, 51
ex rel.
Minnesota
*24
WILKINSON,
concurring
Judge,
Chief
(1931).
625,
Unlike
To take the matter of content
if the
personal workplace disputes. Courts have
at issue
primarily
personal
were
upon
focused
‘public’
“whether the
or the
workplace
plaintiffs,
interest
it is
‘community’ is likely
truly
concerned
clear that no First
signifi-
particular
interested in the
expres
*25
cance would attach to
employee
it. Public
Berger,
999;
sion.”
779 F.2d at
also
see
is not
protection
entitled to
if
573,
it is Pickering,
jority sanctions Cir.1995) (6th against (finding policy limit. 84 without universities ence unconstitution- discriminatory harassment allow plainly would position majority’s The overbroad); XI IOTA vague and ally matters of prohibition Fraternity Sigma Chi Chapter worry over undue The concern.5 Univ., F.2d Mason George tilting at windmills— mere not intrusion (4th Cir.1993) university can- (holding Internet ac original the Commonwealth’s educational gender-neutral maintain not stunning their were restrictions cess on the silencing speech environment originally Act example, the For scope. speech codes viewpoint). These basis of having “sex materials to all access barred in- broad. For exceptionally are often regard to without explicit content” ually “ ‘any stance, university, code forbids one “lascivious” or was depiction whether verbal, unintentional, intentional, physical, the material’s constituted whether an in- subjects behavior Compare Va.Code or nonverbal theme.” “dominant of- (Michie intimidating, hostile or Supp.1998), with to an dividual § 2.1-804 Ann. (Michie educational, Supp. living or employment § Ann. 2.1-804 fensive Va.Code . noted, 1999). demeaning slurring or panel opinion ... environment As ambit “re ... written literature swept through within individuals restriction art, affiliation; sexual themes debate on or ethnic search and because of their racial law; speech literature, slogans history, [epithets] and or using symbols, ... and mental by medical connotations about the negative and research that infer ” dis concerning sexual professionals health or ethnic affiliation.’ racial individual’s sexually re ease, and dysfunction, Dambrot, (quoting sexual at 1182 55 F.3d disorders; and the routine lated mental Action Central Plan for Affirmative among social exchange of information could A statute be Michigan University). child assault workers sexual similarly broad terms passed that Gilmore, 167 F.3d Urofsky v. abuse.” protected amounts of reaching substantial Cir.1999). (4th These areas n. 6 majority’s reason- speech. Yet under interest. personal than of more mere implicate any statutes would ing, such sciences, physical Speech the social they lights because First Amendment the humani professions, the learned professors regulate university would discourse to our democratic ties is central therefore would employees, and as state progress. and social concern. involve matters way no to distin- majority provides could also reasoning majority’s issue here from more the statute at guish that otherwise uphold used to statutes ma- Under the future statutes. intrusive vagueness. would fall for overbreadth rationale, employ- state jority’s whenever codes that example A prime employees, regulated ees are classroom suppress potential have the the realm of speech lies outside or unortho- speech that is unconventional Thus, regardless of the “public concern.” invalidated repeatedly have dox. Courts n statute, balancing of the com- there is no trampling on First these codes dramatically from the context involving so an as- 'differs majority’s This hypothetical 5. The *28 present speech that it is hard to believe of the attorney to illus- serves further sistant district draw majority even seek to would approach. In fo- its trate the of drawbacks apart quite from the comparison. All is solely cusing again on the form of once attor- majority’s district that the assistant con- fact speech, majority ignores the different an individual em- ney hypothetical represents present and the hypothetical between its text otherwise) (academic or attorneys ployment matter that operate un- case. Assistant district public con- likely to involve matters is less supervision and command and der a chain of statutory restriction on represent cern than broad words would be taken to their speech. given matter. government’s position on
431
peting First Amendment and
inter-
pression’s
necessary impact on the actual
relegates
speech
ests. This
operation
(inter-
to a
of the Government.” Id.
omitted).
quotation
Amendment netherworld.
nal
marks
Whether
judges happen
approve
of this statute is
The
Court has recognized that
not
question
to be addressed under the
university
“the
is a
sphere
traditional
Pickering/NTEU balance. We
do
expression
free
...
fundamental
evaluate the enactment’s desirability, only
functioning
society.”
of our
Rust v. Sulli-
its constitutionality. Our view of the wis-
van,
200,
173,
1759,
111
114
S.Ct.
dom
provision
of a state
“may not color
(1991). Further,
L.Ed.2d 233
essen-
“[t]he
our task of
adjudication.”
constitutional
tiality of freedom in the community of
957, 973,
Clements v. Fashing, 457 U.S.
American universities is almost self-evi-
2836,
(1982).
102 S.Ct.
employees, Virginia
an undisputed
II.
substantial
interest
miscon
preventing
duct of this sort. Sexual
via
harassment
Because
Act restricts
on mat-
computer
objectionable
is as
in the univer
public concern,
ters of
we must determine
sity setting
it is in any workplace.
whether the burden
justified
employer
Commonwealth’s interest as an
by the governmental
interest
stake.
workplace
efficiency
similarly beyond
See Pickering, 391
U.S.
question.
Pickering,
relationships, speaker’s or employ- conduct. the sexual from can detract mance such interference function; avoiding er’s the waiver through importantly, Most v. Rankin interest.” strong state a can be accommo- also the Commonwealth process McPherson, 483 U.S. at stake —bar- interests the various dates (1987). many While 97 L.Ed.2d material access to lascivious ring genu- have doubtless university procedure providing but generally, study of sexu- the interests in scholarly ine insti- educational invoked whenever can be examination for others phenomena, al freedom that academic determine tutions no may matter bear sexually explicit of interest significant requires. The so enterprise. any academic relationship to a minimal against is thus balanced here “Publica- argues, As the Commonwealth Under inquiry. intrusion on academic workplace in the of materials tion on whether Act, judgment the ultimate demeaning find offensive colleagues re- fide is for a bona waiver requested and de- workplace morale plainly harms system resides project search the work- efficiency of tracts from grants The statute university governance. In more at 35. Appellant’s Br. force.” authority approve sense, ubiq- heads” “agency important but still general prac- § As a em- 2.1-805. may waivers. Id imagery diminish uity of these sexual the entire the record matter, appears debase self-control tical ployee My dissenting universities colleges and workplace Virginia’s environment. however, weight little give authority colleagues, primary approval delegated have man- interest department Commonwealth’s as deans and to. such officials system and its own educational agement of heads. surely of its own running workforce— aca- thus maintains The Commonwealth our federal interests under important author- reposing critical freedom by demic government. scheme of The Su- university itself. ity within the balance, the side plaintiffs’ On academic noted that preme Court noted, access to material Act, as restricts indepen- on the “thrives not freedom pub- matters potentially touches ideas exchange of and uninhibited dent revisions to lic recent concern. also, students, but among teachers scope statute, have narrowed its autono- inconsistently, on and somewhat majority, by the As considerably. noted it- academy by the decisionmaking mous owned or of state the Act use restricts Mich. the Univ. Regents self.” to access computer equipment leased 12, 106 S.Ct. 226 n. Ewing, 474 U.S. content.” sexually explicit “having material (citations (1985) omit- L.Ed.2d (Michie Supp. § Ann. 2.1-805 Va.Code ted). Byrne, Academic also J. Peter 1999). “sex- defines revised the As statute “Special A Concern Freedom: having “content content” as: ually explicit (1989) Amendment”, 99 Yale L.J. (i) any lascivious theme dominant freedom (defending institutional (ii) any picture, lascivious description of or humanistic “those research and based film picture drawing, motion photograph, unique university that are of a values depict- representation visual ... or similar it”). within statute fits Virginia’s exhibition bestiality, lewd ing sexual In university self-governance. excitement, model con- sexual sexual nudity, ... university self-governance term using the abuse, copro- ... duct or sadomasochistic significant downplay the not intend to I do § 2.1- Id. philia, urophilia, fetishism.” boards government of state role limits access the statute still Although systems of respect to state information, it now trustees to some non-obscene education, but underscore higher range of materi- more restricts a limited
433
deans, provosts,
traditional
of
depart-
role
extreme deference. And for good reason.
heads,
faculty making purely
ment
discretionary
choices
by pro-
made
vosts,
deans,
decisions.
and faculties in the contexts
tenure,
hiring,
selection,
of
curriculum
It
is this thread of institutional self-
grants, and
potentially
salaries all
burden
governance
judgment
today
that ties our
individual academic freedom to some ex-
Boring
County
v. Buncombe
Board of
tent, but
generally
courts have
been un-
(4th
Education,
Cir.1998) (en
This is so many for reasons. It is well- established that federal courts have no The fact that governs this statute use acting surrogate business university de- the Internet should not change ap- our ans. Our “reluctance to trench on proach self-governance. to institutional prerogatives of state and local educational The unparalleled Internet allows access to institutions,” Ewing, information, thereby enhancing opportuni- grounded powerful notions for expression ties freedom of holding of federalism healthy and a promise awareness tremendous virtually types for all judicial competence limited in university But with exponential research. administration. simply Federal courts are growth potential of freedom comes the not “suited to evaluate the substance of the formerly abuse. Whereas access to sexu- multitude of limited, academic decisions that ally explicit matter was somewhat daily by faculty made members of now a click of the mouse can invite obscene educational institutions.” Id. material into the middle of the working environment.
Were we asked to review ex post the judgments of these academic deans and danger When the of abuse great, how- department ever, respect heads with to individu- so also is the danger unwarranted al requests, waiver repression. we would thus act with temptation There will be the *31 politi- perspective or the basis of social as mis- on all
to brand point of view. cal misad- publicized of the creants mis- a This would be a few. ventures such has eschewed Supreme Court The “ importance of the greater ‘The take. Amendment of First view a reductionist ... the community more the safeguarding a proper undertake refusing to rights. By preserve inviolate the imperative is need step under the first inquiry concern speech, of free rights the constitutional majority the Pickering, and of Connick assembly order to free press and free targeting all that statutes ensures political free for opportunity the maintain from balanc- immune speech are academic 385 U.S. at Keyishian, Thus, discussion....”’ a court step. need in the second ing Jonge De 602, (quoting 675 competing 87 S.Ct. even examine never 255, 81 57 S.Ct. Oregon, 299 U.S. at stake. interests public employee and (1937)). The Commonwealth that L.Ed. has stated Supreme Court But that universities judgment balancing has made particularized “[although such equipped to balance difficult, are best reach the most themselves must the courts the Internet promise of of the com- enormous balance appropriate possible accompa- Connick, at may that novel risks against the interests.” peting this By upholding limited restrictions Because the ny it. within the tradi- step of Act are administered this statute on first Connick/Picker- balance university governance, I this majority surrenders ing, structure tional statute contra- Virginia of absolutes. do not believe to world the Constitution. venes also char- concurrence majority and approach as one of my
acterize III. I that contend believe They privilege. constitutional special “professors possess majority My colleagues fine freedom,” n. at 408 ante of academic right issue with the above take in concurrence special has a academy “the and that “profes- I believe They claim approach. ante at society,” to make contribution right,” constitutional special possess sors J., concurring). (Luttig, “emphatic I am that at 408 n. that ante itself em But the Court be creat- right must new constitutional ... freedom J., that concurring), phasized “academic ed,” (Luttig, at 417 ante all us and not value to transcendent right is reserved my and that “new-found Keyis concerned.” alone,” merely to the teachers at 417. I ante professors hian, (empha would, any no new create added). Indeed, essentiality of form, “[t]he sis simply review I would sort. community of American freedom in the content, speech at is- and context almost universities Supreme Court something self-evident.” sue— 250, 77 Sweezy, 354 U.S. and that do in Connick requires us to added). special By its talk of (emphasis to do. steadfastly refuses majority majority I fear the majority’s rights privileges, failure could consequence of speech and demo sees academic majority’s somehow Under the more serious. not be odds. values as inconsistent view, statutory restric- cratic grossest even the need not be our view. respect, all speech will With public employee tions democracy always supposed had if I calculus: simple evaluated speech, assist including academic speech, public employ- as a position involves one’s democracy func another pro- ed one ee, enjoy it will no First channels of discourse best when My colleagues tioned tection whatsoever. folly to for It would be were unfettered. any statutory permit majority would thus First Amendment this fundamental get and re- restriction on academic change when complex times premise search, baldly one discriminated even every sort us. confronts Those who have off stream or tributary. The source expertise worked to acquire within their from which flows should not mark given popular can aid representa- fields judicial it for disfavor. I fear the court in reaching tives decisions and in shaping forgets that freedom of speech belongs to response rapid informed change. all Americans and that the threat representatives may Democratic often expression of one society sector of will *32 reject choose to proposals, academic but soon enough become a danger to the liber- rejection, suppression, is the constitu- ty of all. tionally events, In tested course. all for speech usefully to function creatively and MURNAGHAN, Circuit Judge, subject, it my colleagues cannot be as in dissenting: it, the majority would now have to the majority’s The interpretation of the
unexamined legislative will. “One’s “public concern” life, doctrine makes the role liberty, and property, to free speaker of the dispositive analysis. of the speech, press, a free freedom of worship Specifically, the majority assembly, states that “criti and other fundamental cal to a rights may vote; determination of they employ not be submitted to whether speech depend on the ee outcome of no entitled to First elections.” Barnette, protection West Va. State Bd. Educ. v. speech whether the is ‘made 624, 638, 319 U.S. primarily 87 L.Ed. in the [employee’s]role as citizen ” (1943). or primarily in employee.’ his role as See ante at 407 (quoting Terrell v. Univer majority The undertakes an extended Police, sity Tex. Sys. 792 F.2d speech, discussion of academic (5th Cir.1986)). majority The then public university professors plain- are the rejects plaintiffs’ First Amendment tiffs before But us. the majority con- claim speech because “[t]he at issue here cludes, without any proper content-context ... clearly made the employee’s role inquiry, speech that such can never be of employee.”' as Id. at 408. Because an public concern. This dismissal is some- analysis Myers, Connick v. thing we regret. shall come to I recognize (1983), speech 75 L.Ed.2d may appear well correct,” progeny times petty, “politically to be reveals that the majority floating adopted far beyond reality. unduly But an interpreta to see it restrictive as slip is to too easily “public doctrine, into stereo- tion of the concern” I type. Academic any views on subject respectfully dissent. varied,
often
and it remains an abiding
challenge to democratic leadership to un-
I.
derstand what
is misguided and naive
opinion
about expert
and what is sound
A.
I
apology
wise.
offer no
believing,
with,
Connick,
In
Supreme
along
Court held
Court in Keyishi-
n
that,
an,
matter,
as a
public
threshold
if a
Sweezy, and Rosenberger, in the signif-
employee’s speech
fairly
icant
“cannot be
contribution made to
char-
society by our
acterized
colleges
constituting speech
as
on a
and universities. That
mat-
contribu-
tion, however,
concern,”
public
ter of
is but one
then a court
many
made
from all walks of
not balance the employer’s
national- life. Elected
interests with
officials,
leaders,
Connick,
industrialists,
those of
employee.
labor
farm-
ers,
entrepreneurs,
workers,
social
broadly
reli-
role as an case, whether, in Judge Lut- the instant thus becomes public concern. matter of on a a “matter of speech is on plaintiffs’ tig stated social, concern to or other recognize political, the ele- fails dissent] [the Connick, in- community.” teacher between mentary difference curricular, and speech plaintiffs’ speech easi class 1684. The noncur- which is in-class teacher Court meets this test. ly every ricular, “[s]ex, mysteri assumes and great has stated in a class- by a teacher uttered word life, has human indis ous motive force in con- In the latter room is curriculum. absorbing inter subject putably been noncumcular teacher in-class text it is one through ages; to mankind est enjoys assuredly speech, the teacher human interest problems the vital protection. 'First Amendment some Roth v. United public concern." J., (empha- concurring) (Luttig, States, 476, 487, Id. at 373 added). Judge Luttig Presumably, added). (1957) sis (emphasis L.Ed.2d 1498 noncumcular in-class meant that teacher 101,000 over state em- The Act restricts speech on matter of speech could li- professors, including university ployees, previously, how- As public concern. stated workers, brarians, physicians museum ever, in-class a teacher’s hospitals, from workers at state and social whether the employee, an in her role as discussing, writing about researching, noncumcular. curricular 'or speech is sexually explicit As district material. care and under her While students noted, definition “the Act’s broad court classroom, a teacher supervision would include ‘sexually explicit’ re- content a “citizen” surely regarded cannot be art, themes in and debate sexual search merely because “employee” rather than law, literature, speech and history something other than discussing she is health Thus, and mental Boring must rest on research medical trigonometry. *35 disease, principle concerning the that sexual professionals other than something sexually role as an dysfunction, in her related speech by employee an sexual on a speech disorders, employee qualifies never and the routine ex- mental Boring, 136 public among matter of concern. social work- change of information (“Be- J., (Motz, dissenting) F.3d at 379 and child abuse.” ers on sexual assault attempt to majority does not cause the Allen, F.Supp. Urofsky v. role in which an explicitly hold that the (E.D.Va.1998). undeniably topics .These over- employee speaks [or is determinative public matters of concern. touch on reasoning must this prior precedent], rule to recent revision The Commonwealth’s its conclusion not be the basis for limiting “sexually definition the Act the a matter relate to Boring’s speech not does descrip- explicit to materials content” concern.”). Boring therefore public change not that are “lascivious” does tions plain- that the compel finding public import analysis. Many works of public a matter speech tiffs’ is lascivious; fact, in classified as could be concern, plaintiffs’ merely because to have specifically intended many were employees.1 speech in role as occurs instance, the works of such an effect. For D. many themes found in Toni Morrison and the material poetry, including re- in her Victorian employee an speech Because plaintiffs, online one of speech searched qualify can role as event, Boring why in the ma- argued in her dissent Boring con- 1. extent that In employees analysis public in is at public jority’s approach the instant trols the case, concern does, it I would agree progeny. and I do not its odds with Connick and Judge persuasively holding. Motz revisit that response to actual as verse taken be classified action Myers, could Professor potential speech Also, speech, of the Act this ban chills be- application lascivious. Id. by psy- happens.” e-mail discussions fore S.Ct. to “lascivious” implicates workers chologists and social public public import,
topics in justify- burden Commonwealth’s discussions an interest unfettered statutory its restrictions on ing the ab- concerning professionals State respect than with to an greater therefore patients, of them behaviors normal sexual disciplinary isolated action. Common- and understand diagnose to better in order wealth must establish that “the interests of deviancy. sexual group audiences and a vast potential both plaintiffs’ Finally, the form of present and future in a broad communica- Internet and e-mail speech, range present expression and future public tions, special makes the ‘necessary outweighed by expression’s elec- age, In the information significance. impact operation’ on the actual of the Gov- most may be the tronic communications (quoting Pickering, Id. ernment.” accessing for and discuss- important forum 1731). community. topics of concern to
ing
A. The Interests of the Plaintiffs
wary
allowing
should be
This court
and the Public
medium of
important
regulate
State
requiring
legiti-
without
communication
101,000
employ
The Act restricts
justification
regulation.
for the
mate
researching, discussing, and writ
ees from
sexually explicit topics within
ing about
II.
thereby depriving
expertise,
their areas of
on a
plaintiffs’
Because
ability
speak
of their
plaintiffs
concern, must balance
matter of
we
It
difficult to
matters of
concern.
speaking
on a
plaintiffs’
interests
that the Act will have
measure the effect
in-
against
concern
“the
matter of
commentary
and discourse on
stifling
State,
employer,
as an
terest of the
art, literature,
important topics
psychol
public ser-
efficiency
promoting
disciplines;
it is
ogy, and other
performs through
employees.”
vices it
aca
possible,
example,
seminal
Educ.,
v. Bd.
Pickering
commentary on the works of Toni
demic
(1968).
wealth’s interest effi- sexually material on accessing explicit however, ciency, cannot be the basis for state-owned, computers; impose it does not specific prohibition on accessing the Act’s general accessing any sexually ban on sexually explicit comput- material on State explicit material computers on the work- ers. Thus, place. employee may state use his computer own patently porno- to access First, employee efficiency is undermined graphic pictures around his students or an by any employee activities that distract colleagues violating without the Act. The duties, job-related just from her unau- provide any justi- Commonwealth does not newspa- thorized Internet use. Reading why sexually explicit images fication for radio, pers, listening chatting any likely less to create a hostile work coworkers, talking telephone if images environment those come from an examples with friends are of activities that employee’s personal computer rather than keep performing her computer. from a-state-owned Commonwealth, job. best on the attempt regulate 2. Overinclusiveness Act, through the these activities nor does The Act is also impermissibly overinclu- it cite to evidence that accessing sexu- prohibits sive. It research and commen- ally explicit material undermines work- tary by who access place efficiency any more than activi- these discourse, material to advance ties. awareness, treatment, commentary Second, the Act does not even cover all variety disciplines prob- and social the uses Internet that undermine lems. The Act thus the legitimate reaches workplace efficiency. Employees may use sexually explicit work-related uses of *37 ma- computers send State to non-work related terial, wholly uses unrelated the nar- to e-mail, services, as well as access news rower category gratuitous sampling rooms, websites, sports chat and other ma- pornographic material the Act was jobs. terial unrelated to their The Com- intended to address. The Commonwealth explained, monwealth has not and cannot however, appears point; to concede this explain, possibly why employees who ac- argues Commonwealth that the Act’s sexually cess material explicit less prior approval process ensures that em- “efficient” at their work than ployees legitimate who have a to need espn.com who every twenty check explicit minutes access sexual material will be able during the NCAA tournament. do so. parties censoring into own provision al- dates approval prior Act’s
The
power
if the discretion and
sexually speech, even
access
employees to
lows
Lakewood,
actually
are never
abused.”
required
“to the extent
explicit material
757,
Thus,
impermissible.”). “justifies an additional sorship by the State SYSTEMS, INC., MEDICAL DUNBAR employees’ [the] on the side thumb Defendant- Plaintiff-Counter York, City New Harman v. scales.” See Appellee, (2d Cir.1998) (invalidat 140 F.3d prior approv policy requiring ing agency’s INC., formerly known as Ra- GAMMEX media) al for statements Inc., Defen- Measurements diation 97). The Sanjour, 56 F.3d at (quoting Claimant-Appellant. dant-Counter arbitrary censorship particu danger of 99-20274. No. case, given in the instant larly relevant of research views on the merits differing Appeals, Court of United States topics. sexually-related into and discussion Fifth Circuit. does not prior approval process 21, 2000. June Act even if we could assume save the July Denied Rehearing *38 arbitrari- not be withheld approvals would ly, the “mere existence discretion, coupled
licensor’s unfettered restraint, intimi- power prior