Recently Deceased: The First Amendment in Virginia

Article excerpt

The free flow of information and ideas is central to academic freedom. A professor of Victorian literature explains how the state can sometimes control access to this flow.

I was startled to see the U.S. Supreme Court assert in its recent ruling on virtual child pornography that "as a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear." It affords, the Court declared, a "vast and privileged sphere of protection."

That may be true in most states and for most Americans. But it is no longer true in Virginia, where I teach at the College of William and Mary and do research on Victorian poetry, concentrating on Algernon Charles Swinburne (1837-1909), a bad boy of British poetry, who in the 1860s turned out some racy stuff. To call up Swinburne's more explicit poems on my state-leased office computer, I am required by Virginia law to get permission from the state (in the person of its agent, William and Mary's dean of the faculty of arts and sciences). Early last year, the U.S. Supreme Court declined to review a case, in which I was a plaintiff, challenging Virginia's restrictive law, thus leaving it in effect.

How could this erosion of the First Amendment come about in Virginia of all places? Isn't Virginia the state where Thomas Jefferson and George Mason articulated the rights basic to free inquiry? And isn't it striving these days to attract computer and Internet enterprises, which depend on the unshackled exchange of ideas-in other words, on the free exercise of First Amendment rights?

Virginia's assault on the First Amendment began in a fit of virtual virtue on the part of the Commonwealth's General Assembly. In 1996 the assembly unanimously passed a bill, signed into law by then-governor George Allen, forbidding state employees to access sexually explicit material on state-owned computers without written permission from their agency's head. The law might have been aimed at stopping a parts clerk in the Virginia Department of Transportation from using state resources to suff X-rated sites on state time (though surely that could have been managed with a simple statement of office policy). But, as written, the law applies to all state employees except the state police. Why police officers alone need unsupervised access to such material is not clear. The consequence, presumably unintended, is that the law covers many state employees whose professional responsibilities require them to deal with sexually explicit material. Here's what the law says, in main:

Except to the extent required in conjunction with a bona fide, agency-approved research project or other agencyapproved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act.

"Sexually explicit content" means content having as a dominant theme (i) any lascivious description of or (ii) any lascivious picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in 5 18.2-390, sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in section 18.2-390, coprophilia, urophilia, or fetishism.

The requirement that agency approvals be kept in a public file changes Virginia's Freedom of Information Act, meant as a check on government duplicity, into a frigid blast on research into matters of a sexual sort.

Legal Defeat

Soon after passage of the act, I joined five other faculty members of Virginia state colleges and universities as plaintiffs in a suit (Urofsky v. Gilmore) filed in federal district court by the American Civil Liberties Union (ACLU). …