STETSON UNIVERSITY COLLEGE OF LAW
22ND ANNUAL NATIONAL
CONFERENCE ON LAW AND HIGHER EDUCATION
Clearwater Beach, Florida
(February 18-20, 2001)
PROFESSORIAL SPEECH AND ACADEMIC FREEDOM: Implications of the
Fourth Circuit’s decision in Urofksy v. Gilmore, 216 F.3d 401 (4th Cir. 2000)
(cert. denied, 2001)
Alison Paige Landry*
Assistant Attorney General
* The views expressed in this Article are those of the author and do not necessarily represent the views of the
Attorney General of Virginia. The author thanks and acknowledges the indispensable contributions of William H.
Hurd, Virginia’s Solicitor General, who spearheaded the Governor’s defense, and who first shared with me the
lovely dicta of Justice Holmes: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v.
Eisner, 245 U.S. 418, 425 (1918).
In the Beginning . . .
“That all power is vested in, and consequently derived from, the people, that
magistrates are their trustees and servants, and at all times amenable to them.”
Virginia Constitution, Art. I, § 2.
Authored by George Mason in 1776, these words from the Virginia Declaration of Rights
remain a cornerstone of governance in the Commonwealth and in our nation. The importance of
this fundamental principal is magnified by the rise of modern bureaucratic institutions, whose
employees number in the thousands. It is magnified yet again by the advent of computer
technology, and especially by the arrival of the internet, “arguably the most powerful tool for
sharing information ever developed.” Urofsky v. Allen, 995 F. Supp. 634, 638 (E.D. Va. 1998)
(“Urofsky I”).1
The Urofsky case was brought by six state employees who sought to create a new
constitutional right to autonomy in using the power of state computers. Under the guise of free
expression, they sought the right to receive and transmit sexually explicit materials, not just as
private citizens, nor even as academics, but as state employees in the conduct of state business.
To that end, they brought a facial and an “as-applied” challenge to Va. Code § 2.1-804 et seq., a
statute that directs state employees not to use state computers for sexually explicit materials
unless their agency has determined that such materials are needed for a bona fide agency
purpose. (Appendix.)2
1
For purposes of this article, the district court opinion will be called Urofsky I, the panel decision will be designated
Urofsky II, and the en banc opinion shall be called Urofksy III. References to “Urofsky” refer to the lawsuit, in
general. The final opinion is published in the Appendix along with a copy of the Act and its definitions.
2
The Act’s provisions applied only to computers, owned or leased by the Commonwealth and used by state
employees to discharge their communicative duties. It had no impact on what public employees did in their own
time, or on their own dime, or by using their own resources. Early in litigation, plaintiffs renounced any claim to
use state computers for “personal entertainment or enlightenment.” They based their claim “solely” on what they
claimed were their “professional-employment-related needs.” Joint Appendix at 56 (available upon request).
2
No penalties are provided for violating the Act. It is instead, merely a legislatively
adopted personnel rule, the enforcement of which is left to various state agencies and the
employee disciplinary procedures ordinarily in force. The Act anticipates and provides for
academic exemptions. Indeed, a few had been granted. None were denied. None of the six
plaintiffs, all of whom claimed to need sexually explicit materials to carry out their
responsibilities, ever requested an exemption under the Act.
Almost everything the Commonwealth does in its 111 diverse agencies involves a
communication of some sort. Yet it’s also self-evident that: “Government has no mouth, it has
no hands or feet; it speaks and acts through people. Governmental employees must do what the
state cannot do for itself because it lacks corporeal existence; in a real sense, they are the state.”3
The internet was but a technical excuse unto which plaintiffs attached themselves so they
might assert “the dangerous notion that government employees have a personal stake in the
words they utter when they speak for the government,” id. at 962, an idea that would inevitably
“turn government employment into a platform for endless attacks on government policy and
governance into a tug of war between those who make the laws and those who enforce them.”
Id. at 962.
The Evidentiary Record
The Urofsky lawsuit erupted in the Fall of 1996 when Paul Smith, a self-proclaimed
masochist and fetishist, used his position as a professor to access George Mason University’s
3
Arizonans for Official English v. Arizona, 69 F.3d 920 at 960 (9th Cir. 1995) (J. Kozinski and Kleinfeld,
dissenting), vacated as moot, 520 U.S. 43 (1977). The Yniguez dissenters foreshadowed Urofsky when they wrote:
“When confronted with what will come to be known as Yniguez challenges, states…will have to prove that their
laws are worth the candle; courts will routinely make judgments traditionally reserved for the legislature and the
people themselves. By comparison, Lochner v. New York, 198 U.S. 45 (1905), will seem like a paean to judicial
restraint.” Id. at 962 (Kozinski J., dissenting).
3
(“GMU’s”) website, where he posted a collection of hardcore pornographic photographs.
Smith’s lascivious display did not go unnoticed. A group of female students saw the exhibition
and lodged protests with University administration. Female faculty and staff also complained,
objecting to GMU’s complicity in the distribution of pornography and the resulting hostile
educational environment for women on campus.
Acting in response to these concerns and relying in part on the Act, the University
directed its computer technician to block transmission of the photographs from the University
website. Paul Smith’s peep show, submitted into evidence in the case and described by the Court
in its opinion, includes the following photographs:

a naked man in bondage;

the bare buttocks of a woman whose hands were chained and locked behind her;

a naked woman hanging spread-eagle in bondage;

a naked man stroking his erect penis;

a woman exposing her pierced and gaping rectum and vagina; and

a woman anally penetrating a man using a strap-on dildo.
Another photograph, not submitted into evidence, but which Smith posted on GMU’s
server, showed former child pornography star, Traci Lords, engaged in sexual intercourse. 4
Smith was then joined by five other state-employed professors who sought to use their
computers for more mundane purposes, including some purposes that were not covered by the
Act. Each of the plaintiffs claimed that they had been harmed in their ability to use state
In their pleadings, plaintiffs asserted that they could not figure out what “sexually explicit content” meant. They
also asserted a few paragraphs later that “sexually explicit content” was precisely what they needed to fulfill their
professional duties. Plaintiffs also contended, without shadow of turning, that none of their “sexually valuable”
forays into cyberslums ran afoul of obscenity laws.
4
4
computers to conduct internet research and/or to check the work of students citing internet
sources. They claimed that deliberately or inadvertently, such use of their state issued computers
might lead to their accessing sexually explicit materials covered by the Act. Disdaining any
supervision from their institutions, none of the six plaintiffs requested an exception as provided
for by the Act, nor did any of the plaintiffs prove that it would have been futile to make such a
request. Their position was tantamount to a claim that state employees have a constitutional
right to disregard supervision over the content of their work, a position with anti-democratic
implications that have now been made apparent. Confronted with the implausibility of their
position, plaintiffs and their amici constructed a fallback theory, which they labeled “academic
freedom.”
By its own terms, this theory could not apply to thousands of non-academic
employees. Upon examination, the Commonwealth argued, it was a theory wholly without merit
even for state employees in academia.
Legal Machinations
In the district court, plaintiffs, (represented by the New York ACLU), did not limit their
claim to their own academic endeavors. Instead, they presumed to assert what they contended
are the First Amendment rights of all 101,000 state employees in Virginia to use state computers
for sexually explicit materials. Yet this was not a class action. Claiming that there was a vast
universe of what they termed “sexually valuable” materials passing through the electronic
arteries of government, plaintiffs protested that the Act dammed this critical river of information.
This stunning contention made discovery a veritable dragnet. The Commonwealth argued that
the explicit terms of the Act contemplate pornographic materials, i.e., “lascivious” stuff, which,
5
according to the Virginia Supreme Court means “a state of mind that is eager for sexual
indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.”5
The Act’s definitions of “sexual conduct” were imported from a Virginia criminal statute
restricting sales and displays to juveniles, an act that had previously been challenged by a group
of book publishers. After a labyrinth of state and federal litigation, the Fourth Circuit Court of
Appeals affirmed the Act as constitutional. American Booksellers Ass’n v. Commonwealth, 882
F.2d 125, 126 (4th Cir. 1989).6 The lurid laundry list of sexual depictions imported from Va.
Code § 18.2-390, are stark and astonishingly specific, particularly for a personnel rule. Compare
to Arnett v. Kennedy, 416 U.S. 134, 160 (1974) (upholding against both a vagueness and
overbreadth challenge an act permitting removal of federal employees only for “such cause as
will promote the efficiency of the service.”).
In response to this proffered narrowing construction, plaintiffs countered by saying that
they did not know what “lascivious” meant.
In the same breath (and mindful of the
Commonwealth’s skepticism about standing), plaintiffs also alleged that lascivious materials
were exactly what they needed and that besides, lasciviousness is a viewpoint. Citing criminal
cases like United States v. X-Citement Video, Inc., 513 U.S. 64, 78-79 (1994) (rejecting claim
that the term “lascivious” is unconstitutionally vague), the Commonwealth showed that
lasciviousness is not a viewpoint, that porn can be left-wing, right-wing or ideologically neutral,
and that to speak of discussing subject matter from a “lustful viewpoint” is semantic overkill, at
best.
General Media Communications Inc. v. Cohen, 131 F.3d 273, 287 (2nd Cir. 1997)
5
Pedersen v. City of Richmond, 219 Va. 1061, 1065, 254 S.E. 2d 95, 98 (1979), quoting McKeon v. Commonwealth,
211 Va. 24, 27, 175 S.E. 2d 282, 284 (1970). See also Dickerson v. City of Richmond, 2 Va. App. 473, 479, 346
S.E.2d 333, 336 (1986) (The term “lewd” is synonymous with lascivious and indecent).
6
When Virginia’s General Assembly recently amended § 18.2-391 to include digital materials, a group of on-line
publishers sued local prosecutors claiming the amendment infringed upon their First Amendment rights and violated
the Commerce Clause. In August, 2000, Judge Michael enjoined enforcement of the Act. PSINET v. Chapman, 108
F. Supp. 2d 611 (W.D. Va. 2000). The parties are currently preparing to resolve the case on its merits.
6
(“lascivious” is not a viewpoint).7 To show that under canons of “plain meaning,” the world at
large (if not the plaintiffs), understood that “sexually explicit” denotes pornography, the
Commonwealth’s briefs contained a randy sampling of web-based materials one gets when
searching “sexually explicit” anything. A slew of enticements to the Kitty Kat Lounge, but no
medical textbooks or National Geographic spreads emerged.
Rather than take comfort from the narrowing construction posited by the Commonwealth,
plaintiffs insisted that the statute swept into its orbit, not just the lascivious, but also the banal,
the benign and the utterly boring. Their ever-pliable interpretation of the Act (a view shared by
the district court and the pre-amendment panel decision), applied, for example, not only to
pornographic videos of Traci Lords, but also to lab reports documenting genital warts and legal
briefs urging that a rape conviction be upheld.
As for exceptions, plaintiffs complained that they were “unworkable.” The “sunshine
clause” (stating that exemptions were “public documents”), they insisted, inhibited research
involving sexual themes in art, literature, law and philosophy. These divergent views about the
scope and meaning of the Act inspired a flurry of motions involving the proper scope of
discovery. While the Commonwealth argued that a facial challenge required plaintiffs to prove
that the Act could not be applied constitutionally to anyone, the ACLU cleverly resolved to make
a series of “as-applied” challenges, agency by agency, then string these mini-challenges together
and call it a facial challenge. It also became apparent that plaintiffs sought to discover each and
every potentially “sexually explicit, professionally-necessary” communication passing in or out
of the electronic infrastructure of each and every state agency in Virginia. Seeking to compare
this vast universe of “PNSEM” – “professionally necessary sexually explicit material,” with non-
See Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982) (noting “greater tolerance of enactments with civil
rather than criminal penalties because consequences of imprecision are qualitatively less severe”).
7
7
electronic sexual communications, plaintiffs argued that there was no good reason for Virginia’s
General Assembly to legally differentiate between Robert Mapplethorpe on paper and Robert
Mapplethorpe on-line. One defense motion challenged how far and deep into the electronic
pathways of state government the ACLU should be allowed to go to prove its case. Legal
polemics like this inspired several absorbing field trips to Virginia’s science and fine arts
museums for a guided tour of their “raunchiest” offerings, which turned out to be limited fare,
indeed. Several Greek and Egyptian phalli later, it was determined that some kind of art,
Buddhist Tantric art, for example, is meant to be, and in some cases can be deemed lascivious.
Anatomically correct drawings of the human reproductive tract at the science museum, were, on
the other hand, decidedly nonlascivious.8
First Amendment Feeding Frenzy
Because the parties disagreed about the scope of the Act, there were contentious debates
about whether several plaintiffs even had standing in the case. One gentleman, for instance,
taught basic composition at a community college. How sexually graphic can that be? As long as
one plaintiff, Smith, could tripwire the Act (and he did), the Commonwealth resolved that
elimination of the additional five plaintiffs for lack of standing would be of limited utility.
During discovery and motions practice, the parties argued about everything, including
the following: canons of statutory construction, how many different agency heads the ACLU
could depose (no more), whether the plaintiffs could deploy FOIA requests for the same
materials targeted by discovery (no), whether “lesbian literature” was necessarily sexually
8
These sexual scavenger hunts through state government to find lascivious materials may remind one of recent Taco
Bell ads wherein satisfied patrons eating new zesty tacos survey various passing scenes and declare them “zesty” or
“not zesty.” The vast majority of materials examined in Virginia’s libraries and museums were of the latter
category.
8
explicit (no), and whether remote allusions to homosexual romps in Victorian poetry (understood
by a handful of academics like William & Mary English Professor Terry Meyers), ran afoul of
the Act (no). Certification as a strategic maneuver, was always looming as a possible procedural
digression.9 The parties, under time constraints imposed by Virginia’s federal “rocket docket,”
entered into some interesting stipulations as to what was, and what was not covered by the Act.
As arduous discovery requests rolled through gads of government agencies, new and
difficult questions arose. Was the law content-based? Viewpoint-based? Was it unduly vague?
Who, exactly, was enforcing the Act? How precise must its language be when applied to public
employees? Did the law require an appeals procedure? Did the doctrine of “prior restraint”
operate on this law? What about the secondary effects doctrine? If the U.S. Supreme Court
permitted adult theaters to be zoned out of existence because of their deleterious effect on
persons, property, law and order, couldn’t a public employer zone out of its own workspaces the
same sexually explicit materials?
Was the exemption for “bona fide agency projects and
undertakings” an unconstitutional burden or the statute’s saving grace?
When a professor
conducts research for a book she plans to write, is she acting in her “citizen capacity,” her
“professional capacity,” or both? What legal test applies to expressive activities by public
employees when they are seemingly acting in a dual capacity? Does the public have a right to
know in what capacity a public employee speaks? Are workplace computers public fora? If an
9
Certification is a procedure by which a state court, in its discretion, may answer questions certified to it by a United
States Court of Appeals. By rule, an appellate court may also request a state’s highest court to render an opinion on
a potentially dispositive interpretation of state law. At every stage of litigation, the Commonwealth urged the
federal court to avail itself of certification if it felt the act’s proper interpretation by the Virginia Supreme Court was
potentially dispositive. Certification of novel questions of state law allows a federal court to “save time, energy, and
resources and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
This is especially true when the constitutionality of a state statute is at issue. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 64 (1997).
9
employer can prevent its employees from using computers for “non-official” purposes, why can’t
that employer go further and advise employees just what kind of materials (porn), are considered
“non-official?” Isn’t that exactly what this Act does? Would due process require an employer to
forewarn its employees of materials considered controversial or high-risk? Did the provision
making all exemptions subject to sunshine laws cast a chill on sexual speech? Or did it further
democratic values by enlightening the public about how their resources are being used? If
workplace efficiency is the rationale for the Act, why does it merely target sexual material, and
not the other kinds of electronic digressions like games, stock quotes and chain letters? These
were the kinds of imponderables that filled our days and sometimes nights.
Clash of the Titans
After the burdensome murk of discovery finally closed over, a pack of hardcore First
Amendment voluptuaries argued about what constitutional test applied to such a law. Plaintiffs
demanded strict scrutiny, the highest barrier.
The Act, they argued, was an overbroad,
unnecessary, content-based and viewpoint based overreaction, a classic “prior restraint” that was
too vague to comprehend and too standardless to enforce. While claiming that thousands of
public employees badly needed “sexually valuable” materials to carry out their workplace
responsibilities, plaintiffs failed to produce a single affidavit from a “rank and file” public
employee stating that he or she needed sexually explicit materials to carry out their duties.
Relying on the wellworn template of employment law, the Commonwealth said that whatever
doctrinal tool is deployed, “reasonableness” alone is the appropriate constitutional test.
As to the scant number of exceptions granted under the Act, the Commonwealth opined
that the paucity of requests showed that state employees and their supervisors did not share the
10
ACLU’s imaginative renderings of the Act. The ACLU, on the other hand, theorized that so few
exceptions indicated that the Act was extremely chilling and/or that it was simply being ignored.
Whose Speech is it?
At summary judgment, the Commonwealth’s legal quiver contained four dependable
arrows, any one of which could prove fatal to plaintiff’s case.
First, it was argued that
government may control its own speech and that state employees have no constitutional right to
disregard the instructions of their employer. Rust v. Sullivan, 500 U.S. 173 (1991) ( upholding
Title X regulation that restricted private grantees from promoting abortion as a method of family
planning); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (“[W]e
have permitted the government to regulate the content of what is or is not expressed when it is
the speaker or when it enlists private entities to convey its own message.”) Next, it was argued
that regardless of how indispensable computers may be as an expressive medium, state
computers issued to state employees are not public fora and that abuse of computer resources is
plain old misconduct, not pure expression. Perry Education Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37 (1983); Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788
(1985); Loving v. Boren, 956 F. Supp. 953 (W.D. Okla. 1997) (holding that state university
computer and internet services are not a public forum) aff’d. on narrower grounds, 133 F.3d 771
(10th Cir. 1998).
Borrowing a practical tool from case law governing adult entertainment establishments,
the Commonwealth argued that the “secondary effects” of sexually explicit speech in the
workplace may be effectively zoned under Renton v. Playtime Theatres Inc., 475 U.S. 41 (1986).
The final contention was that that even if public employees had a personal constitutional stake in
what they say on the job, and even if the Picketing/NTEU balancing test applied, a proper
11
weighing of the factors lead to a result in favor of the Act’s validity. Laced throughout these
arguments, of course, was the contention that the Act, on its face, and according to its plain
meaning, was all about porn.
Ultimately, the Fourth Circuit majority embraced the first
argument, never reaching the latter three.10
“NTEU”
The Plaintiffs and the district court relied heavily on a case styled U.S. v. Nat’l Treasury
Employees’ Union, 513 U.S. 454 (1995) (“NTEU”). Their reliance on that case was particularly
odd since the facts of that case belie any suggestion that it affirms the rights of public employees
to speak in their professional capacity qua public employees. NTEU involved an honoraria ban
that applied to writing and other expressive activities having no nexus to an employee’s federal
employment.11
Justice Stevens, who wrote the majority opinion in NTEU, took pains to
emphasize the fact that NTEU’s employees staked no constitutional claim involving their official
duties:
They seek compensation for their expressive activities in their capacity as
citizens, not as Government employees. They claim their employment status has
no more bearing on the quality or market value of their literary output than it did
on that of Hawthorne or Melville. With few exceptions, the content of [the
employees’] messages has nothing to do with their jobs and does not even
arguably have any adverse impact on the efficiency of the offices in which they
work. They do not address audiences composed of co-workers or supervisors;
instead, they write or speak for segments of the general public. Neither the
character of the authors, the subject matter of their expression, the effect of the
content of their expression on their official duties, nor the kind of audiences they
address has any relevance to their employment.
Id. at 465 (emphasis added).
Judge Wilkinson, in his concurrence, attempted to balance the interests and concluded that the Commonwealth’s
interests outweighed the employees’ interests.
11
A postal employee in NTEU, for instance, sought compensation for lectures he gave on the Quaker religion. An
aerospace engineer had been compensated to lecture on black history. There was an FDA microbiologist who
critiqued dance performances, a Nuclear Regulatory Commission lawyer who penned articles about Russian history
and a tax examiner who wrote articles about the environment.
10
12
The ACLU’s mantra-like recital of NTEU did nothing to establish that plaintiffs and the
federal employees in NTEU were similarly situated. In fact, it turned out that rather than being
controlled by NTEU, Urofsky was more like NTEU’s evil twin because in Urofsky, plaintiffs
asserted only a right as government employees to use state computers to access sexually explicit
materials and to do so unconditionally. This demand simply bit off too much and flew in the
face of constitutional precedent affirming a public employer’s prerogative to manage its
employees. “When someone who is paid a salary so that she will contribute to an agency’s
effective operation begins to do or say things that detract from the agency’s effective operation,
the government employer must have some power to restrain her.” Waters v. Churchill, 511 U.S.
661, 675 (1994). For these same contextual reasons, it was ludicrous to condemn the Act as a
prior restraint.12
Undergirding the Commonwealth’s arguments in Urofsky was the recurring theme that
government must be kept amenable to the people. This means not only that elected officials
must be responsible to the electorate, but that government employees must be subject to
supervision and direction by those elected officials. The argument was straightforward and
compelling: those hired by government to do its work may not substitute their own messages for
the ones they are professionally obliged to deliver. Rust v. Sullivan, 500 U.S. 173 (1991);
Rosenberger, 515 U.S. at 833 (“[W]hen the government appropriates public funds to promote a
particular policy of its own it is entitled to say what it wishes.”). Public employees, like all
citizens, remain free to pursue their own use of sexually explicit materials when not on the job
using state computers. When, however, their access to the computer is made possible only
12
Among an array of First Amendment platitudes, certain ones get little airplay, but are critically important to a
balanced understanding of the Bill of Rights. One of these platitudes, brought into high relief by this case, is that
nothing in the Constitution prevents the state from restraining itself.
13
because they are state employees, then the speech transmitted online in furtherance of those
professional duties is not “citizen speech,” as contemplated by Connick/Pickering,13 but
governmental speech.
Plaintiffs never really came to grips with the fact that employment law governed the case.
Instead, they characterized the Act as silly and politically meddlesome as though these were
constitutional defects. Refusing to the end to concede that employers can and do make contentbased decisions all day long, plaintiffs condemned the Act for being both under-inclusive and
over-inclusive, thus terribly (rather than narrowly), tailored. Casting aside wellworn caselaw
affording public employers significant discretion to control speech on the job, plaintiffs extolled
the wonder and the virtues of the internet ala ACLU v. Reno,14 arguing that the Act cast a pall of
orthodoxy over academic research and other important intellectual work undertaken by public
employees.
Their best argument was that “citizen speech,” as contemplated by Connick/Pickering,
need not be “official” speech to warrant First Amendment protection. On the other hand, they
claimed that the “citizen/employee” distinction articulated in Pickering and Connick was simply
shorthand for a determination whether an employee’s speech is “on matters of public concern”
(and therefore shielded by the First Amendment), or is upon “matters only of personal interest.”
Connick, 461 U.S. at 147. But the question, “whose speech is it?” has three possible answers,
not just two. Where the speech at issue could be government speech, focusing on a two-part
13
14
Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
Reno v. ACLU, 521 U.S. 844 (1997) (striking down various provisions of the Communications Decency Act).
14
distinction between citizen speech and employee speech is not “shorthand”; it is a short-circuit in
the analysis.15
In the District Court
On cross motions for summary judgment, the District Court, Judge Leonie Brinkema, a
former librarian, accepted Plaintiff’s broad characterization of the Act’s sweep and decided that
state employees are constitutionally entitled to ignore supervision from their employer and to
follow their own personal views on what is required to conduct public business. The district
court opinion recognized that the Commonwealth had a right to promote workplace efficiency
and to prevent creation of a sexually hostile environment. It also acknowledged that public
employees transfixed on pornography that is unrelated to their professional duties are in neglect
of theirs. The Court discounted these interests, however, flyspecked the Act and spied at every
turn a hodgepodge of constitutional hobgoblins. The Court, for instance, declared the Act to be
“no improvement” on “content-neutral” rules already in place.
But, the Commonwealth
protested, there is no reason why a statute, to withstand constitutional scrutiny, must constitute
an improvement on pre-existing law. The district court criticized the Act because it failed to
target materials that were racially, ethnically or religiously offensive.
Yet, there is no
constitutional requirement that a legislature eradicate all workplace distractions in one
comprehensive act. Semler v. Oregon State Bd. of Dental Examiners, 294 U.S. 608, 610 (1935)
(Lawmakers need not “strike at all evils at the same time or in the same way.”). Even the law
enforcement exception was belittled by the Court as “strange.”
Why is it strange, the
Commonwealth replied, that law enforcement officials entrusted to conduct criminal
Attempting to define what is, and what is not, “citizen speech” within the meaning of Pickering/Connick is,
concededly, the densest underbrush in the case and was the primary focus of the parties’ arguments for and against a
writ of certiorari.
15
15
investigations into the ephemeral medium of cyberspace be permitted to do so without any
condition or possible delay? The District Court criticized the Act for its absence of appeal rights.
Yet the U. S. Supreme Court has ruled that even criminal defendants sentenced to prison terms
have no constitutional right to appeal from their convictions. Abney v. U.S., 431 U.S. 651, 657
(1977). What theory of the Constitution required greater protection for state employees denied
an opportunity to read pornography at taxpayer expense? The District Court even decried the
FOIA clause, which expressly designated exceptions as public documents. That Virginia’s
legislature took pains to expressly state that such documents can be reached by FOIA was surely
not a constitutional infirmity, was it? Urofsky I was applauded by many, then appealed to a more
favorable climate, the Fourth Circuit Court of Appeals.
On appeal, the Fourth Circuit, sitting as a three-judge panel, then later, en banc, disagreed
with the District Court and upheld the Act as constitutional. Urofsky II. Unsatisfied with
Urofsky II, plaintiffs then requested a rehearing en banc, i.e., full panel review. In what initially
appeared to signal receptivity to the “as-applied” portion of the lawsuit, the full panel requested
further briefing on “academic freedom.” After more briefing and captivating oral argument, in
which research issues loomed large, the full panel, like the three judge panel before, upheld the
Act as constitutional. Urofsky III, 216 F.3d 401 (4th Cir. 2000) (en banc). On January 8, 2001,
the United States Supreme Court declined to review Urofsky III. The Act has been in effect in
Virginia since March of 1999.
Legislative Intervention
Between the time the three-judge panel heard the case and the time the full panel reheard
it, Virginia’s General Assembly “got into the act.” Shortly after the three-judge panel rejected
the Commonwealth’s limiting construction of the Act, the legislature amended it so that it
16
expressly applied only to materials “whose predominant theme is lascivious.”
This mid-
litigation amendment clarified and narrowed the scope of materials targeted by the Act. The
amendment was yet another factor that may have persuaded the Court that the statute struck the
proper constitutional balance between the competing interests of the university and its faculty.16
After the lasciviousness amendment became law, the parties got to argue what it meant
all over again. By this time, however, it was clear that the Act would not rise or fall based on its
intricate sexual semantics. Rather, the Connick/Pickering balancing test, or lack of it, would
prove dispositive. In Urofsky III, like Urofsky II, the majority found nothing substantive on the
“citizen” side of the equation to balance.17 Wielding the unsteady Pickering scales (and getting a
blistering attack from Judge Luttig for having undertaken the task), Judge Wilkinson too
concludes that the Commonwealth’s interests in workplace efficiency outweigh whatever citizen
interests are implicated.
Academic Freedom: Two Concepts
Urofsky v. Gilmore is often referred to as a case about academic freedom, and it is. By
reminding us what academic freedom is not, the decision points to what academic freedom must
be. Much of the discussion by plaintiffs about academic freedom consisted of lofty panegyrics
that did not provoke disagreement so much as they left one wondering about their utility in the
hard analysis of specific cases. No one doubts the value of academic freedom, but its precise
16
In a strategic move that can only be described as an attempt to suppress the opinion in Urofsky II, plaintiffs
suggested, mid-litigation, that the new amendment rendered the panel decision moot, that the panel decision should
be vacated (wiped from the books), and that the case should begin all over again in the district court. This coup
d'etat also failed. Ultimately, the Fourth Circuit reviewed both the old and the new versions of the statute, and found
them both constitutional.
17
Judge Wilkinson’s concurrence in Urofsky III insists that there must be some kind of “citizen speech” to balance,
but he never quite identifies the kind of speech subject to protection. His opinion appears, at times, to conflate the
computer with the internet, which is somewhat like comparing a boat with the sea.
17
contours may be the subject of legitimate debate. Moreover, as any discussion of academic
freedom should acknowledge at the outset, the term is used in two very different ways.18
First, there is the concept of academic freedom as developed and advocated by academics
through professional associations such as the American Association of University Professors
(“AAUP”). See, e.g., AAUP, 1940 Statement of Principles on Academic Freedom and Tenure.
While the official statements of the AAUP may govern the employment of professors at
institutions that have adopted them, their enforceability is a matter of contract law, not
constitutional law. Second, there are cases in which the application of the First Amendment in
the context of academia have been discussed under the name of “academic freedom.” While
there may be some overlap between the two concepts, it is only the latter concept that concerned
the court in Urofsky.
The starting point for discussing the constitutional dimension of academic freedom is
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
There, in a concurring opinion, Justice
Frankfurter quoted approvingly the following description of a university:
It is the business of a university to provide that atmosphere which is most
conducive to speculation, experiment and creation. It is an atmosphere in which
there prevail ‘the four essential freedoms’ of a university — to determine for itself
on academic grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study.
Id. at 263, quoting “The Open Universities in South Africa, 10-12.”
Using the framework adopted by Justice Frankfurter, constitutional cases involving
academic freedom can be divided into two groups: (i) cases dealing with the conditions that
government may place upon hiring and retention, i.e., “who may teach,” and (ii) cases dealing
with the content of curriculum, i.e., “what may be taught [and] how it shall be taught.” The
18
See, e.g., Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66
TEX. L. REV. 1265 (1988) (arguing that definition and boundaries on constitutional academic freedom are
significantly different from those concepts of academic freedom formulated by the academic profession itself).
18
problem with plaintiffs’ argument, in a nutshell, is that they confused these two distinct concepts,
just as they confused the distinction between AAUP Declarations of Principles and the U.S.
Constitution.
Hiring and Retention Not Implicated Here
In Sweezy, the State Attorney General sought to conduct an investigation into an
individual who had lectured at the University of New Hampshire. The alleged authority for the
investigation was a state Subversive Activities Act, which made “subversive persons” ineligible
for employment in state government, including public educational institutions. Sweezy refused
to answer questions about the Progressive Party of New Hampshire or about an allegedly proMarxist lecture he had given. His refusal led to a finding that he was “in contempt” of court.
The Supreme Court held that the state had acted unconstitutionality by penalizing him for its
failure to answer its questions. In so doing, the Supreme Court made clear that the facts of the
case did not raise an issue of state authority over curriculum:
The state courts upheld the attempt to investigate the academic subject on the
ground that it might indicate whether petitioner was a “subversive person.” What
he taught the class at a state university was found relevant to the character of the
teacher. The State Supreme Court carefully excluded the possibility that the
inquiry was sustainable because of the state interest in the state university. The
sole basis for the inquiry was to scrutinize the teacher as a person, and the
inquiry must stand or fall on that basis.
Id. at 249 (emphasis added).
Given this context, the Supreme Court went on to say that Sweezy’s First Amendment
rights had been violated:
Merely to summon a witness and compel him, against his will, to disclose the
nature of his past expressions and associations is a measure of governmental
interference in these matters. These are rights, which are safeguarded by the Bill
of Rights and the Fourteenth Amendment. We believe that there unquestionably
was an invasion of petitioner’s liberties in the areas of academic freedom and
political expression — areas in which government should be extremely reticent to
tread.
***
19
Our form of government is built on the premise that every citizen shall have the
right to engage in political expression and association. This right was enshrined
in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in
America has traditionally been through the media of political associations. Any
interference with the freedom of a party is simultaneously an interference with the
freedom of its adherents.
Id. at 250.
Thus, Sweezy was vindicated by the Supreme Court because the state had sought to use
the fact of his university employment as an occasion to pillory him for his political views. Later,
in Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Court struck down a loyalty oath as a
requirement for employment at a public university. The basic principle enunciated in both
Sweezy and Keyishian is that government cannot condition employment on political viewpoint.
While the principle was first recognized in the context of academia, where there was no tradition
of political patronage, it was later expanded to cover public employees in jobs where such
patronage was long established as a common practice. See Elrod v. Burns, 427 U.S. 347 (1976),
and Branti v. Finkel, 445 U.S. 507 (1980).
In the context of this broadened First Amendment
jurisprudence, it is not clear what may be added by use of the term “academic freedom” other
than to make the point that professorial positions do not constitute “policy” positions subject to a
patronage exception under the Elrod/Branti line of cases.19
In Urofsky, the principle that professors may not be hired or fired based on their political
views was clearly not implicated. The Act did not address hiring or firing. Moreover, so long as
professors do not use state computers, the Act leaves them free to say or read whatever they wish
with complete impunity. Paul Smith may replicate pornography on the internet all night long, so
long as he does it on his own computer. Indeed, he may even do so on the state computer, so
long as his university agrees that it is required for his work.
19
It was, perhaps, a recognition of this fact that led the Supreme Court recently to describe the McCarthy-era,
subversion cases as “so-called academic-freedom cases.” University of Pa. v. EEOC, 493 U.S. 182, 197 (1990)
(emphasis added).
20
The Institution Controls Curriculum
The second category of academic freedom cases deals with the content of the curriculum,
or, to use Justice Frankfurter’s formulation, “what may be taught [and] how it shall be taught.”
According to Justice Frankfurter, these are freedoms that belong to the university. They do not
give individual university professors a constitutional right to autonomy in their professional
work. It may well be true that some institutions have adopted AAUP principles or other policies
in which tenured faculty have a larger measure of independence; but, these are contract issues,
not constitutional issues. As far as the Constitution is concerned, decisions about university
policy or the use of university resources by individual professors remain subject to the control of
the university as the arbiter of its own educational mission.20 The Fourth Circuit is not the first
court to recognize this principle.
Case Study: Bishop v. Aronov
Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), for instance, involved a dispute
between the University of Alabama and a professor of exercise physiology whose Christian
beliefs were reflected in his teaching in a way the University administration found objectionable.
Although he never prayed in class nor read the Bible there, he advised his students of his
Christian perspective. He also offered voluntary, after-class meetings to discuss evidences of
God in human physiology and the resulting conclusion that man was created by God. When the
University sent him a memo exhorting him to stop mentioning his faith in class and to cease
conducting after-class meetings, Bishop filed suit, claiming that his First Amendment rights were
being violated.
The Eleventh Circuit disagreed with Bishop, siding instead with the University’s position
that the memo was a reasonable restriction on a professor’s rights of academic freedom. The
court identified the salient question as “to what degree a school may control classroom
20
Not everyone agrees with this conclusion, of course. See, J. Peter Byrne, Constitutional Academic Freedom in
Scholarship and in Court, The Chronicle Review, January 5, 2001 at B13, in which one commentator declares that
the Urofsky decision “sickens” him. One scholar’s nausea is another’s euphoria.
21
instruction before touching the First Amendment rights of a teacher.” Id. at 1072. In answering
that question, the court said that “the school’s administration may at least establish the
parameters of focus and general subject matter of curriculum.” Id. (internal quotation marks and
citations omitted). While acknowledging the importance of academic freedom in the Keyishian
context, the Court explained that “pronouncements about academic freedom in that context,
however, cannot be extrapolated to deny schools command of their own courses.” Id. at 1075.
The Court then went on to say:
Though we are mindful of the invaluable role academic freedom plays in our
public schools, particularly at the post-secondary level, we do not find support to
conclude that academic freedom is an independent First Amendment right. And,
in any event, we cannot supplant our discretion for that of the University. Federal
judges should not be ersatz deans or educators.
Id. (emphasis added).
Bishop v. Aronov is one in a long line of cases which recognize that the university, not
individual faculty, are the arbiters of educational germaneness and appropriate management of
university resources. By assigning to state agencies — including educational institutions — the
final authority to decide what is required for their work, the Act adopts these principles. Surely,
if academic freedom is not violated when a university restrains one professor’s search for Jesus,
it is not violated if another university restrains a professor’s search for Traci Lords.21
See Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert. denied, 411 U.S. 972 (1973) (affirming university’s right
to control content of biology professor's health course); Lovelace v. Southeastern Massachusetts Univ., 793 F.2d
419, 426 (1st Cir. 1986) (“The first amendment does not require that each non-tenured professor be made a
sovereign unto himself.”); Hetrick v. Martin, 480 F.2d 705, 708-709 (6th Cir. 1973 ), cert. denied, 414 U.S. 1075
(1973) (university need not renew contract of professor whose pedagogical attitudes and teaching methodologies did
not conform to institutional standards); Megill v. Bd. of Regents, 541 F.2d 1073 (5th Cir. 1976) (professors do not
escape supervision in the manner in which classes are conducted or in assignment of grades); Wirsing v. Bd. of
Regents of Univ. of Colorado, 739 F. Supp. 551, 553 (D. Colo. 1990) (“Academic freedom is not a license for
activity at variance with job related procedures and requirements.”); Keen v. Penson, 970 F.2d 252 (7th Cir. 1992)
(university did not violate faculty member’s First Amendment rights by directing him to make a written apology to
student and to change her grade); Scallet v. Rosenblum, 911 F. Supp. 999 (W.D. Va. 1996), aff’d on other grounds,
1997 U.S. LEXIS 1465 (4th Cir. Va.) (Jan. 29) (unpublished), cert. denied, 521 U.S. 1105 (1997) (business school,
not individual faculty member, controls course content).
21
22
The Act merely creates a requirement of germaneness, not unlike the germaneness
limitation that even the AAUP recognizes in the context of its own concept of academic
freedom.22 This germaneness requirement is found in the provisions of the Act that allow the use
of sexually explicit computerized material when “required in conjunction with a bona fide
agency-approved research project or other agency-approved undertaking.” Va. Code § 2.1-805.
Indeed, whatever may be Paul Smith’s academic need for pornography in his course on cultural
studies, it is difficult to imagine how pornography would be relevant, say, to a calculus or
astronomy professor. Consistent with the principle that an institution is the arbiter of its own
educational mission, the Act vests the institution — not some outside official — with the
authority to determine when such materials are so required.23 The Act does not violate principles
of academic freedom, but is wholly consistent with them.24
No Prof is an Island
The AAUP and the Act both recognize that professors should claim no personal stake in
speech that does not relate to their respective subject matter. Just as a physics professor is
contractually obliged to teach physics and not art history, so too a professor can stake no
constitutional claim to go off-course, regardless of how fascinating or important to some those
digressions might be. Paul Smith contended that as a professor of Cultural Studies, he researches
pornography and its effects on popular culture. If the peepshow published on GMU’s server can
The AAUP 1940 Statement of Principles on Academic Freedom and Tenure admonishes faculty “not to introduce
into his teaching controversial matter which has no relation to his subject. As [an] educational officer, he should
make every effort to indicate that he is not an institutional spokesman.”
23
Even if the authority to make these decisions were vested outside the institution, it is by no means clear that there
would be a violation of academic freedom. When “government attempts to direct the content of speech at public
educational institutions, complicated First Amendment issues are presented because government is simultaneously
both speaker and regulator.” University of Pa. v. EEOC, 493 U.S. 182, 198 n.6 (1990).
24
This conclusion is not changed by the provision of the Act that allows the public to obtain information about
agency approvals. These are, after all, public institutions and if the taxpayers are going to be so harnessed, they
have a right to know what load they are pulling. To suggest that university employees have a constitutional right to
keep their professional activities secret — for fear the public may not approve — is an idea as novel as it is antidemocratic.
22
23
be called “research” unaccompanied by text, without scholarly explanation, and without ideation,
then it may well be germane. But that is for GMU to decide, not Smith.
Power to the People, Not Necessarily the Professors
Urofsky teaches that academic freedom is not synonymous with a right to eschew
institutional oversight. Regardless of the contractual insularities of tenure, under the First
Amendment, no professor is a sovereign unto him or herself, at least when his professional
agenda conflicts with his employer’s. This may sound self-evident, but it has yet to sink in,
because frankly it is counter-intuitive, running contrary to the academic zeitgeist. More to the
point, it makes professors look more and more like ordinary employees.
Between the majority opinion, three separate concurrences, Judge Luttig and Chief Judge
Wilkinson’s “symposia,” and a snappy, sometimes angry dissent, the decision contains one of the
most detailed explications on academic freedom that can be found in any American judicial
opinion to date.25 But light is not necessarily heat. Ultimately, the opinion gently places the
sacred cow of academic freedom back into its box, then focuses on an equally transcendent
principle. The Court reassures us that public accountability for electronic resources, even in
higher education, preserves, rather than corrodes the democratic values advanced by the First
Amendment.
The court holds today, as has been uniformly recognized by the Supreme
Court through the years, only that there is no constitutional right of free inquiry
unique to professors or to any other public employee, that the First Amendment
protects the rights of all public employees equally. Neither the value nor the
contributions of academic inquiry to society are denigrated by such a holding.
And to believe otherwise is to subscribe to the fashionable belief that all that is
25
The lively, often pointed exchange between Judge Luttig and Chief Judge Wilkinson, is one of the great reads in
First Amendment jurisprudence. See also Judge Luttig’s landmark opinion in Rice v. Paladin Enterprises, Inc., 128
F.3d. 233 (4th Cir. 1997), cert denied, 523 U.S. 1074 (1998) (First Amendment does not shield publisher of
“Hitman,” an assasination manual, from tort liability. Publisher may be answerable for the wrongful death of
victims slain according to manual’s directives.).
24
treasured must be in the Constitution and that if it is not in the Constitution then it
is not treasured. But precisely because it is a constitution that we interpret, not all
that we treasure is in the Constitution. Academic freedom is paradigmatic of this
truism. Academic freedom, however, is also paradigmatic of the truism that not
all that we treasure is in need of constitutionalization. No university worthy of
the name would ever attempt to suppress true academic freedom – constrained or
unconstrained by a constitution. And, if it did, not only would it find itself
without its faculty; it would find itself without the public support necessary for its
very existence. The Supreme Court has recognized as much – be it through
wisdom, prescience, or simple duty to the Constitution – for over two hundred
years now. It has recognized that, in the end, the academic can be no less
accountable to the people than any other public servant. His speech is subject to
the limitations of the First Amendment certainly no more, but just as certainly no
less, than is the custodian’s. That we should all be accountable to the people, and
accountable equally, should cause none of us to bridle.
Id. at 425 (J. Luttig, concurring).
In the Fourth Circuit’s view, free wheeling inquiry by faculty members and the
university’s right to guard its productivity and its communicative priorities are not
constitutionally incompatible. Nor should they be. Supervision and professional autonomy can
and do co-exist in many other intellectual professions, including the practice of law. This
fundamental concept, that in the employment context, somebody gets to steer the ship, was
accepted by the Fourth Circuit which had previously recognized that “[a] government employer,
no less than a private employer, is entitled to insist upon obedience to the legitimate, day-to-day
decisions of the office without fear of reprisal in the form of lawsuits from disgruntled
subordinates who believe that they know better than their supervisors how to manage office
affairs.” DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995). Urofsky merely reaffirms that
the First Amendment is not carte blanche for “those who know better,” including faculty, to set
25
the university’s expressive agenda.26
Whether framed in terms of what the state’s message is to be, or how the state’s work is
to be performed, or how state property is to be used, the Fourth Circuit suggests that these are the
kinds of decisions that the people have a right to answer through the ballot box. They should not
have to fear being undone by dissenters who have the inside advantage of being on the
government payroll, nor should those in public service be required to endure sexually explicit
materials in the offices where they earn their livelihoods. The law of the Fourth Circuit is that
even professors, armed with the revolutionary internet, may not hijack a public university’s
academic prerogatives.
Urofsky’s judgment is fairly narrow, but its dicta, and its ramifications for the millennial
age, are refreshingly apparent. The case dramatically underscores the ever-widening chasm
between “professional” (“AAUP redbook”) definitions of academic freedom and constitutional
ones. Yet, when moored to its factual pier (professional duties discharged on state-supplied
resources), Urofsky III offends neither the professional norms as conceived by the AAUP, or the
constitutional one as contemplated by the United States Supreme Court.
Public Employee Elitism
Some may say that Urofsky III is a judicial rejection of public employee elitism, a
resounding affirmation of the equality of all public employees in the shadow of the First
Amendment. To the extent that some academics really do believe that professors have “more”
26
Due in large part to an earlier Fourth Circuit precedent, Boring v. Buncombe County Bd. of Educ., 136 F.3d 364
(4th Cir.), cert denied, 525 U.S. 813 (1998), Urofsky III appears to lay to rest any lingering doubt, at least in the
Fourth Circuit, as to “who owns” curriculum in public universities. Because Boring involved high school teachers,
not academicians, the ACLU argued that the rules of academic freedom did not apply. Boring, however, proved the
Commonwealth’s case with respect to non-academic employees who comprise the overwhelming majority of the
state workforce.
26
constitutional rights than other employees, Urofsky III dramatically rejects that view, taking
pains to level the playing field of free expression between professors and custodians. Id. at 425
(J. Luttig, concurring).
Where Do We Go From Here?
Perhaps Urofsky can breathe new life into the concept and the practice of “academic
supervision,” a notion that struck the professor-plaintiffs in Urofsky as problematic, if not
oxymoronic. Urofsky’s fundamental premise, that a public employer, particularly a university,
may direct the content of its employees’ professional communications, should not startle or
unnerve. Universities, as a practical matter, often delegate broad, content-based discretion to
their faculty in any number of areas. This will continue to be the case. As the United States
Supreme Court and the Fourth Circuit remind us, however, the wisdom of a practice does not
require that it be constitutionalized. Minnesota State Bd. of Community Colleges v. Knight, 465
U.S. 271, 287 (1984) (acknowledging the prudence of shared governance, but concluding that
faculty have no First Amendment right to participate in academic policymaking.).
Intra vs. Extramural Speech
While most faculty members will tell you that it is their in-class speech that is most
protected by the First Amendment, the exact opposite is true, at least in the Fourth Circuit.
Moreover, when it comes to divining what kinds of utterances “touch upon matters of public
concern,” Urofsky III utterly rejects the view that what professors have to say is categorically
more important than what other public employees have to say. Contrary to the position argued
by plaintiffs in this case, there is no constitutional presumption that everything said and done by
university professors is necessarily of “public concern.” As the Fourth and Fifth Circuit have
recognized:
27
Because almost anything that occurs within a public agency could be of
concern to the public, we do not focus on the inherent interest or importance of
the matters discussed by the employee. Rather our task is to decide whether the
speech at issue in a particular case was made primarily in the plaintiff’s role as
citizen or primarily in his role as employee. In making this determination, the
mere fact that the topic of the employee’s speech was one in which the public
might or would have had a great interest is of little moment. DiMeglio v. Haines,
45 F.3d 790, 805 (4th Cir. 1995) quoting Terrell v. Univ. of Texas Sys. Police, 792
F.2d 1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987).
In order, therefore, to find themselves in the protective cloak of the First Amendment,
university faculty must be speaking as ordinary citizens, or even about their job duties, but not
in discharge of their professional duties. This legal axiom contradicts the “received wisdom”
on academic freedom, which tends to fixate on in-class utterances as a constitutional safe harbor
of sorts.
“Not Zesty”
Fortunately for Virginia’s taxpayers, despite its seemingly provocative mix of porn, the
web and higher education, alas, Urofsy III, as precedent, is not as sexy as it seems. When
viewed through the humdrum lens of public employment law, the opinion is an unremarkable
affirmation of the Connick-Pickering balancing test, three-decade-old jurisprudence. That, in
essence, was what the Commonwealth recently argued in opposition to plaintiffs’ petition for
writ of certiorari; that the case may be zesty, in fact, but insofar as breaking new legal ground, it
is not zesty, therefore, “uncert-worthy.”
This final legal strategy, to make the case as
uninteresting to the United States Supreme Court as possible, apparently worked.
Conclusion
While the ACLU has catastrophized the impact of Urofsky III, the opinion is a measured
recognition that public agencies, including universities, must be kept amenable to the people.
What then is the practical fall-out of the case? In the wake of Urofsky III, all Paul Smith needs
28
to do if he wants to publish pornography on the university website is to walk down the hall and
ask his Dean. That never happened in this case. It never got a chance to happen. Whether it will
happen in the future is anyone’s guess. It is not up to the Commonwealth, as sovereign, to
decide if Smith’s graphic display constitutes bona fide research; that is for his academic
supervisors to determine. In so doing, at least in the Fourth Circuit, administrators in higher
education need not wring their hands about the First Amendment.
**********
29