Loss of Academic Freedom on the Internet: The Fourth Circuit's Decision in Urofsky V. Gilmore

Article excerpt

I. Introduction

Virginia was the home of Thomas Jefferson, a founding father famous for prizing free expression. Although Jefferson helped form our government, he was careful to note its limits, stating that "were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."1

Jefferson attended the College of William and Mary in Williamsburg, Virginia. Later, he founded the University of Virginia. Ironically, the very schools that Jefferson helped make famous are struggling to escape the reins of censorship by state government. The General Assembly of Virginia has forgotten Mr. Jefferson's goal for the very university he founded, his hope that "[o]ur institution will proceed on the principle of doing all the good it can without consulting its own pride or ambition; of letting everyone come and listen to whatever he thinks may improve the condition of his mind."2

In 1996, the Virginia Assembly passed an act that prohibits state employees from accessing sexually explicit materials on the Internet without approval from an agency head.3 Professors at schools such as William and Mary and the University of Virginia are considered state employees subject to the restrictions of the Act.4 Notably, the Act prohibits the accessing, downloading, printing, or storing of sexually explicit materials that are not considered obscene (and therefore illegal) under the constitutional test for obscenity.5 Therefore, this Note argues that the Act abridges the professors' constitutionally protected speech. As the U.S. Supreme Court has remarked upon its First Amendment jurisprudence, the Court has "made it perfectly clear that `sexual expression which is . . . not obscene is protected by the First Amendment. "'6

Mr. Jefferson's schools have felt the impact of the Act because it specifically includes institutions of higher education within its scope.7 Yet those who follow in Jefferson's footsteps have fought back. Six professors from various Virginia public colleges and universities filed suit, alleging that the Act unconstitutionally infringes upon their academic freedom.8 However, their battle appears to have reached its end, at least in the court system. On January 8, 2001, the Supreme Court denied certiorari on the case.9

This Note examines the Fourth Circuit's holding that the Virginia Act restricting access to the Internet is within First Amendment bounds. The Fourth Circuit refused to recognize the professors' claim that they deserved exemption from the Act because they belonged to a special sect of public employees: those who can claim a First Amendment right of academic freedom.10 The professors illustrated vividly how their research, scholarly interactions, and teachings would suffer if their access to the Internet was restricted.11 However, the court, upon examining Supreme Court jurisprudence, concluded that First Amendment protection of academic freedom rests only in the university as a whole, not with individual professors. 12

The Fourth Circuit's ruling is erroneous and has dangerous implications for academics nationwide. A history of muddled Supreme Court doctrine regarding academic freedom did not leave the court with the easy task of sorting it out. However, in its effort to find absolute answers from the Supreme Court where none exist, the Fourth Circuit treads destructively on turf previously undisturbed. By stripping professors of First Amendment protections, the court threatens to destroy our nation's greatest resource: those who dare to push the boundaries of long-held beliefs and ultimately illuminate the world with knowledge.

II. The Virginia Act

The General Assembly of Virginia passed an act that restricts state employees from accessing sexually explicit materials on stateowned computers.l3 Before engaging in any discussion of First Amendment violations, it is important to set out the wording of the Act so that one can see how broadly it sweeps. …