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 Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)
(cert. denied, 2001)
or
THE DEMISE OF ACADEMIC FREEDOM
Steven Glenn Olswang, J.D., Ph.D.
Vice Provost
Professor, Educational Leadership & Policy Studies
University of Washington
Seattle, Washington
THE DEMISE OF ACADEMIC FREEDOM: UROFSKY V. GILMORE
Academic freedom...applies to both teaching and research....The teacher is entitled to full
freedom in research and the publication of the results….The teacher is entitled to freedom
in the classroom in discussing his subject….The college or university teacher is a citizen,
a member of a learned profession, and an officer of an educational institution. When he
speaks or writes as a citizen, he should be free from institutional censorship or
discipline…
AAUP, 1940 Statement
In 1890, the mother of Leland Stanford, Jr., Jane Stanford, directed David Starr Jordan,
President of her son's namesake university, to terminate Professor Ross. Professor Ross was a
respected scholar and economist at Stanford University who believed in socialism and defended
those in the U.S. labor movement. President Jordan, one of many of the "despotic" presidents of
the time, followed the directions of his principal benefactor and terminated Professor Ross. As a
result of that action, several additional faculty members from Stanford University resigned in
protest. Arthur Lovejoy, one of those faculty members, together with John Dewey from New
York and others, became central players in the creation of what we now know as the American
Association of University Professors (AAUP). Hofstadter and Metzger, The Development of
Academic Freedom in the United States. New York: Columbia University Press (1955).
Metzger, The American Concept of Academic Freedom in Formation. New York: Arno Press
(1977). Menard, The Future of Academic Freedom. Chicago: The University of Chicago Press
(1996).
The AAUP is credited with developing and publishing the first policy statement
codifying academic freedom and tenure. Academic freedom, borrowing the principles from
nineteenth century German universities of lehrfreiheit and lernfreiheit, the freedom of inquiry
and freedom of teaching, was a principled statement of norms, i.e., that faculty members in U.S.
universities should be able to exercise their intellectual curiosity and expression and pursue new
lines of inquiry without fear of retribution or punishment from their employers. Tenure was thus
created to protect academic freedom as a legally enforceable contract structure, which, by court
decision, was later elevated to a protected property interest in public universities with attendant
due process requirements under the Fourteenth Amendment to the Constitution of the United
States. Board of Regents v. Roth, 408 U.S. 564 (1972). Perry v. Sindermann, 408 U.S. 593
(1972). Lee and Olswang, Legal Parameters of the Faculty Employment Relationship. In Smart,
Higher Education: Handbook of Theory and Research. Vol. 1, New York: Agathon Press
(1985).
The primary basis for declaring the importance of a faculty member's intellectual
independence and autonomy from employer control stemmed from the responsibility faculty had
to the "public" and "profession," rather than to their institutional boards of trustees:
University teachers should be understood to be, with respect to the conclusions reached
and expressed by them, no more subject to the control of trustees than are judges subject
to the control of the President with respect to their decisions; while, of course, for the
same reasons, trustees are no more responsible for, or to be presumed to agree with, the
opinions or utterances of professors, than the President can be assumed to approve of all
the legal reasonings by the courts. AAUP, General Report of the Committee on
Academic Freedom and Academic Tenure, 1915. 1 AAUP Bulletin 17, 26 (1916).
See also, Ambrose, Academic Freedom in American Public Colleges and Universities.
14:1 Review of Higher Education 5 (Fall 1990); Poch, Academic Freedom in American
Higher Education. 1993 ASHE-ERIC Higher Education Reports; Metzger, Professional and
Legal Limits to Academic Freedom. 20 Journal of College and University Law 1 (1993);
Hamilton, Zealotry and Academic Freedom: A Legal and Historical Perspective. St. Paul,
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Minn.: Transaction Publishers (1995).
For almost a century, faculty in institutions of higher education have believed that they
have academic freedom to independently pursue research topics of their choosing, unfettered by
employer constraints. Indeed, for decades, the highest court of the United States has voiced its
recognition of academic freedom as critical to allowing faculty to pursue inquiry into virtually
every field.
The essentiality of freedom in the community of American universities is almost selfevident....No field of education is so thoroughly comprehended by man that new
discoveries cannot yet be made....Teachers and students must always remain free to
inquire, to study, and to evaluate to gain new maturity and understanding; otherwise our
civilization will stagnate and die. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
Our nation is deeply committed to safeguarding academic freedom which is of
transcendent value to all of us and not merely to the teachers concerned. That freedom is
therefore a special concern of the First Amendment which does not tolerate laws that cast
a pall of orthodoxy over the classroom. Keyishian v. Board of Regents, 385 U.S. 589,
603 (1967).
THE VIRGINIA STATUTE
In 1996, the Virginia legislature adopted Sections 2.1-804 to 806, Restrictions on State
Employee Access to Information Infrastructure. That statute provides:
Except to the extent required in conjunction with a bona fide, agency-approved research
project or other agency-approved undertaking, no agency employee shall utilize agencyowned or agency-leased computer equipment to access, download, print or store any
information, infrastructure files or services having sexually explicit content. Such agency
approval shall be given in writing by agency heads, and any such approval shall be
available to the public under the provisions of the Virginia Freedom of Information Act.
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Information infrastructure is defined to include: "telecommunications, cable, and
computer networks and includes the Internet, the World Wide Web, Usenet, bulletin board
systems, on-line systems, and telephone networks." Agency is defined to include an institution
of higher education. This law was promulgated as a result of concerns by legislators over some
publicized instances of sexual harassment by state employees using state email systems.
Six faculty members from various Virginia colleges and universities filed a lawsuit
attempting to overturn the law as unconstitutionally overbroad or, in the alternative,
unconstitutional as applied to them since it limited their right to academic freedom. Professor
Melvin Urofsky, the lead plaintiff, claimed the Act precluded him from assigning to his students
certain online projects on indecency law, as he would be unable to review his students' work by
utilizing resources on the Internet. Another plaintiff, Professor Paul Smith, conducts research in
the area of gender roles and sexuality, and believed that the restrictions of the statute precluded
him from using research sites available to him on the World Wide Web. Professor Terry Meyers
was concerned about his ability to access the Commonwealth's own database of sexually explicit
poetry to continue his research on the "fleshly schools" of Victorian poets. Other faculty
member plaintiffs alleged similar infringements on their abilities to fulfill their teaching and
research obligations. The district court supported the plaintiffs' concerns and held the statute
unconstitutional. "We cannot find the Commonwealth's justification for the Act outweighs the
interests of thousands of state employees and the public in expression on sexually explicit
topics." Urofsky v. Allen, 995 F. Supp. 634, 643 (E.D. Va. 1998).
The Commonwealth of Virginia appealed the district court's ruling. A three-judge panel
of the Court of Appeals for the Fourth Circuit unanimously reversed the district court's decision.
Holding that "the Act does not regulate the speech of the citizenry in general but rather speech of
state employees in their capacity of employees," the court determined that no First Amendment
infringement occurred. Urofsky v. Gilmore, 167 F. 3d 191, 196 (4th Cir. 1999).
It is important to note that as a result of the district court decision, in part finding the law
to be overbroad, the Attorney General of the Commonwealth of Virginia recommended that the
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state legislature revise the Act to restrict only sexually explicit content having lascivious
meaning. This recommendation went forward despite the appeal to the Fourth Circuit. The Act
was amended on March 24, 1999, to include the following definition:
"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 Section 18.2-390, sexual excitement, sexual
conduct or sadomasochistic abuse, as also defined in Section 18.2-390, coprophilia,
urophilia, or fetishism.
See Hancock, The Fourth Circuit's Narrow Definition of "Matters of Public Concern" Denies
State-Employed Academics Their Say: Urofsky v. Gilmore. 6 Rich. J.L. & Tech 11 (Fall 1999);
Hancock, Postscript: Why Urofsky v. Gilmore Still Fails to Satisfy. 6 Rich. J.L. & Tech 14
(Winter 1999).
A majority of the active Fourth Circuit judges thereafter voted to hear the appeal en banc.
The En Banc Court held that limiting state employees' access to sexually explicit material on
computers owned and leased by the state was not a violation of their First Amendment rights.
Urofsky v. Gilmore, 216 F. 3d 401 (4th Cir. 2000). With the Supreme Court of the United States
denying certiorari on Monday, January 8, 2001, the law of the Commonwealth of Virginia
remains intact. Urofsky v. Gilmore, _____ U.S. _____, 2001 LEXIS 134 (2001). The Court's
decision not to review the Fourth Circuit's ruling significantly affects the historical
understanding of faculty of their right to academic freedom and their ability independently to
carry out their teaching, research, and service.
THE EN BANC DECISION
The en banc decision of the Fourth Circuit Court of Appeals in Urofsky v. Gilmore,
upholding the constitutionality of the Virginia statute, effectively restricts over 100,000 state
employees free access to the resources found on the Internet. That decision will be forever cited
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for two primary elements: the limitation on the definition of "what is a matter of public concern"
when employees speak in the workplace, and the transfer from faculty to the university of
academic freedom. While the first element deserves substantial mention, the latter point is the
one most critical to faculty and academic history.
As this court stated: "It is well settled that citizens do not relinquish all of their First
Amendment rights by virtue of accepting public employment." Urofsky, 216 F. 3d at 406, citing
United States v. National Treasury Employees Union, 513 U.S. 454 (1995) and Pickering v.
Board of Education, 391 U.S. 563 (1968). "Nevertheless, the state, as employer, undoubtedly
possesses greater authority to restrict the speech of its employees than it has as a sovereign to
restrict the speech of citizenry as a whole." Urofsky, 216 F. 3d at 406, citing Waters v.
Churchill, 511 U.S. 661 (1994).
To determine whether or not the state is regulating the speech of a citizen as an employee
or as a member of the public at large, a balancing test is applied. This balancing test involves an
inquiry, first, into whether the speech at issue was that of a public employee speaking on a matter
of public concern, and, second, if so, whether the public employee's interest in expression
outweighed the public employer's interest in the smooth operation of the workplace. Pickering v.
Board of Education, 391 U.S. 563 (1968); Connick v. Meyers, 461 U.S. 138 (1983). If a public
employee's speech does not touch on a matter of public concern, the state as employer may
regulate it without infringing any First Amendment right. In making this analysis, the court must
examine the "context and form of the speech at issue." Connick, 461 U.S. at 147. The speech
must be unrelated to the employment duties. NTEU, 513 U.S. at 465.
In this instance, the court easily determined that the speech at issue, "access to certain
materials using computers owned or leased by the state for the purpose of carrying on
employment duties" was solely in the role of an employee. Urofsky, 216 F. 3d at 409. The court
did not have to balance the public employer's interests in the workplace since the speech at issue
never transgressed the "matter of public concern" threshold. "It cannot be doubted that in order
to pursue its legitimate goals effectively, the state must retain the ability to control the manner in
which its employees discharge their duties and to direct its employees to undertake the
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responsibilities of their positions in a specified way." Urofsky, 216 F. 3d at 409. See also
Waters v. Churchill, 511 U.S. 661 (1994).
INSTITUTIONAL ACADEMIC FREEDOM
The faculty members who challenged the Virginia statute argued that even if the Act is
valid as to other state employees, it violates the academic freedom rights specially given to
professors at state colleges and universities. It was these faculty members' view that requiring
them to obtain prior university approval before accessing Internet information they deemed
relevant for their research and teaching interferes with their individual right of academic
freedom. The court responded to their argument by holding that faculty members do not possess
any special right of academic freedom beyond that given to every state employee under the First
Amendment. Indeed, the court goes even further:
. . . to the extent the Constitution recognizes any right of "academic freedom" above and
beyond the First Amendment rights to which every citizen is entitled, the right inheres in
the university, not in individual professors . . . 216 F. 3d at 410.
The court noted that academic freedom, while in terminology often used by federal
courts, is little explained. "Lacking definition or guiding principle, the doctrine of academic
freedom floats in the law picking up decisions as a hull does barnacles." 216 F. 3d at 210, citing
Byrne, Academic Freedom: A Special Concern of the First Amendment, 99 Yale L.J. 251, 253
(1989). Rejecting the notion that academic freedom had special constitutional protection, the
court reviewed the history of academic freedom through court decision. "The Supreme Court, to
the extent it has constitutionalized a right of academic freedom at all, appears to have recognized
only an institutional right of self-governance in academic affairs." 216 F. 3d at 28. Focusing on
Justice Frankfurter's decision in Sweezy v. New Hampshire, 354 U.S. 234 (1957), wherein the
four essential freedoms of a university are enunciated--"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"--(354 U.S. at 262-263) the Fourth Circuit redefines academic freedom from being
individual to institutional.
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The Fourth Circuit acknowledges that early Court decisions, such as Whitehill v. Elkins,
389 U.S. 54 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); and Wieman v. Updegraff, 344
U.S. 183 (1952) could be said to have established an enhanced constitutional right of academic
freedom in public school teachers, but it finds that right had been subsequently overruled by
other decisions of the Court. See Adler v. Board of Education, 342 U.S. 485 (1952); Slochower
v. Board of Higher Education, 350 U.S. 551 (1956). "Therefore, to the extent that Whitehill,
Shelton and Wieman may have held that a publicly employed teacher may not be disciplined for
the exercise of First Amendment rights of a private citizen, that holding has been subsumed by
later cases extending the same protection to all employees." Urofsky 216 F. 2d at 414. It is the
Fourth Circuit's view that while it might be true that college faculty members and school teachers
were the first public employees to be afforded protection against dismissal for the exercise of
First Amendment rights on matters of public concern, that Supreme Court jurisprudence has
extended that protection to all public employees. Thus, no favored First Amendment academic
freedom rights remain for faculty.
Fitting Academic Freedom within the rebus of the First Amendment is in many respects
an extremely difficult challenge. The term "academic freedom" in obvious contrast to
"freedom of the press" is nowhere mentioned in the text of the First Amendment. It is
inconceivable that those who debated and ratified the First Amendment thought about
academic freedom. Rabban, Functional Analysis of "Individual" and "Institutional"
Academic Freedom under the First Amendment. 53 Law & Contemp. Probs. 227, 237
(1990).
Limitations placed by the Virginia legislature on access to computer infrastructure
by state employees, including university faculty, restrict only workplace speech. Such
restrictions are within the authority of an employer to impose, and do not infringe the First
Amendment. Teaching and research in a public university is not a matter of public concern.
And, of course, faculty members can get approval to use the Internet to do their research, so there
is no infringement on their academic freedom, which faculty members do not possess anyway
beyond that of any other public employees' First Amendment protections.
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ACADEMIC FREEDOM, RESEARCH, AND THE INTERNET
The Virginia Act defines the "information infrastructure" to include computer networks
such as the Internet, World Wide Web, Usenet, bulletin boards, and on-line systems. The
Internet has been variously described as an internal network of interconnected computers, a
uniquely and wholly new medium of worldwide human communication. The Internet is a
decentralized, self-maintaining information and retrieval system. See Conn and Zirkel, Legal
Aspects of Internet Accessibility and Use in K-12 Public Schools, 146 Ed. L. Rptr. 1 (Sept. 28,
2000).
The Internet has become a fundamental tool to examine and retrieve information. In
effect, it has become a new form of the library. The Act, then, could be said to preclude
university faculty members accessing materials stored in a university library unless they receive
permission from their employers to check out the book. Furthermore, the employer--in this case
the college head or president--cannot grant permission except when the request is in relation to a
"bona fide agency-approved research project or other agency-approved undertaking." Thus, the
president of the college or university needs to declare in writing that a specific research topic to
be investigated through Internet access to sexually explicit material is a legitimate, universityapproved activity. That written approval becomes a matter of public record under the Virginia
Freedom of Information Act. This process presents three issues: (1) Is it an infringement of
academic freedom for the state to limit its employees' access to knowledge? (2) Is it an
infringement of a faculty member's academic freedom for a college president to monitor and
decide what areas the faculty member is officially allowed to research? (3) Doesn't the public
notice of a faculty member's research inquiry create a chilling effect on free speech?
The Supreme Court has ruled on the school district's inability to limit what books may be
kept in a school library, and who may have access to those books. In September 1975, three
school board members sought removal from the school library of a number of books that they
had been informed were objectionable by a politically conservative organization. The board
authorized the removal of several books, including Slaughterhouse Five by Kurt Vonnegut, on
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the basis that they were "anti-American, anti-Christian, anti-Semitic, or just plain filthy." The
Supreme Court upheld the students' challenge to this book banning, stating that if "petitioners
intended that their removal decision to deny respondents access to ideas with which the
petitioners disagreed, and if this intent was the decisive factor of petitioners' decision, then
petitioners have exercised their discretion in violation of the Constitution. To permit such
intentions to control official actions would be to encourage the precise sort of officially
prescribed orthodoxy unequivocally condemned" by this Court. Board of Education, Island
Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982). Following the same line
of reasoning, the Supreme Court struck down city ordinances that banned hate speech (R.A.V. v.
St. Paul, 505 U.S. 377 (1992) and local ordinances banning placement on private property of
signs that had political or other meanings. Lawn signs are held to be "a venerable means of
communication that is both unique and important." City of Ladue v. Gilleo, 512 U.S. 43 (1994).
In a case directly related to the Internet, American Library Association v. U.S. Department of
Justice and Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the U.S. Supreme
Court declared unconstitutional a federal law making it a crime to send or display indecent
material online in any way available to minors. In striking down the Communications Decency
Act, the Court upheld the Library Association's challenge that speech on the Internet is entitled
to the highest level of First Amendment protection similar to the protection the Court gives to
books and newspapers.
As a matter of constitutional tradition, in the absence of evidence to the contrary, we
presume that governmental regulation of the content of speech is more likely to interfere
with the free exchange of ideas than to encourage it. The interest in encouraging freedom
of expression in a democratic society outweighs any theoretical but unproven benefit of
censorship. 521 U.S. at 72-73.
The Supreme Court has clearly stated that access to library materials in schools and
sexually explicit content on the Internet is to be protected. If knowledge is publicly available on
the Internet and in the library, prohibiting employees from accessing that information on state
equipment is the same as preventing its original publication. If denying the placement of books
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in the library or the posting of materials on the Internet is unconstitutional, it has to be
unconstitutional to deny a faculty member's freedom to access that material as part of his/her job.
Our precedents have focused not only on the role of the First Amendment in fostering
included self expression, but also on its role in affording the public access to discussion,
debate, and the dissemination of information and ideas. Board of Education v. Pico, 457
U.S. 853, 866 (1982).
It is important to note, however, that the Act does not prohibit access to material on the
Internet, but instead requires that prior permission of the employer be obtained to gain access to
such information. The Fourth Circuit noted that, to the date of the litigation, no individual
requesting such access had been denied. None of the plaintiffs in the case either requested
permission or were denied permission. Indeed, the decision intimates that if a request for access
was denied, the courts would examine that for content-based First Amendment infringement.
But, until there was such an action, the law itself was valid.
One hundred one thousand employees of the Commonwealth of Virginia are prevented
from accessing sexually explicit material on employer-owned computers unless they seek prior
permission. Faculty members are hired to investigate topics they alone deem to be appropriate.
They are evaluated by peers on the quality of their scholarship and publications. They are
expected to teach their classes in the best way they design. To ask faculty to justify a topic of
scholarship or investigation beforehand is to question their capability of deciding what is worthy
of studying or teaching. It runs expressly contrary to the viewpoint expressed by the Supreme
Court that material on the Internet is entitled to the highest level of First Amendment protection.
To limit access to some of this material by prior approval is to violate the First Amendment. It
gives unbridled discretion to university presidents on what shall be studied, which the Court has
held impermissible as arbitrary and capricious power. City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750 (1988); Thornhill v. Alabama, 310 U.S. 88 (1940).
Finally, to require that all requests for Internet access become public documents, is the
same as branding a faculty member as indecent. By specifically stating that such approvals are
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subject to public disclosure means that the faculty member's request and justification for the need
to see sexually explicit material becomes public as well. Members of the public are able to
"label" faculty members as pornographers, sexual harassers, or whatever label infringes on their
good reputation or liberty interest because they are accessing Internet material legitimately
protected by the First Amendment.
A number of courts have recently protected faculty members who do research with
animals from having their names made public. This is to ensure that they would not be subject to
harassment for doing legitimate research work. Under the same model, faculty members who do
research on material with sexually explicit content should not have to have their names made
public so as to prevent there being a chilling impact on their research interests.
SUMMARY AND CORRECTION
One cannot question the accuracy of the Fourth Circuit's interpretation that employers
have the right to limit the use of employer-provided equipment to job-related activities.
Furthermore, one cannot quibble with the Fourth Circuit's conclusion that job-related speech is
not entitled to First Amendment protection when it is not a matter of public concern. Indeed, it
has been argued before that a faculty member's academic freedom is coterminous with his/her
First Amendment right to freedom of speech, i.e., that they are the same. See Byrne, Academic
Freedom Without Tenure, 5 New Pathways Working Papers (1997). Where the Fourth Circuit's
opinion falls down is concluding that a faculty member's freedom of inquiry is not a matter of
public concern warranting First Amendment protection, and concluding that faculty members do
not have an enhanced First Amendment protection called academic freedom.
The Fourth Circuit's reliance on its earlier decision in Boring v. Buncombe County Board
of Education, 136 F. 3d 364 (4th Cir. 1998) leads it astray. In that case, Margaret Boring, a
drama teacher, selected a play for her class to perform during a series of statewide competitions.
The play's subject matter concerned a mother and her three daughters, one of whom was
pregnant out of wedlock and a second daughter who was a lesbian. As a consequence of her
selection and the controversy it sparked in the local community, Boring was transferred to a new
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school. She sued, claiming that her First Amendment rights were violated, since her choice of
the play was a matter of public concern. The Fourth Circuit disagreed and upheld Boring's
transfer. The court found that the play was a matter of internal school curriculum, thus employer
speech. The school board had sole prerogative to make decisions regarding what would be
included in that curriculum. Therefore, faculty speech in this employment setting was not
protected by the First Amendment.
By extension to Urofsky, the Fourth Circuit holds that the subject of a faculty member's
research and teaching is not a matter of public concern, but a subject of employee/employer
speech. Because a college or university is a faculty member's employer, it has control over what
faculty members teach and research, at least to the extent that it requires the use of institutional
resources.
This approach is to defeat the fundamental nature of what faculty academic freedom,
First Amendment speech, is all about. Faculty academic freedom came about to protect a faculty
member's freedom of inquiry, freedom of teaching, and to avoid punishment or retribution for
the exercise of those inquiries. It is a principle that has been held dear in the academy for a
century and is the origin of tenure. Tenure came about as a contract structure to protect the
exercise of academic freedom from employer punishment or control. It would arguably,
therefore, be a violation of a faculty member's contractual tenure right to have a state employer
deny access to the sources necessary for a faculty member to conduct his or her research or to
find materials for his or her classroom.
It is unconscionable that a state legislature would proscribe a faculty member's access to
knowledge. To prevent access to state equipment and state computer infrastructure or require
prior approval to access those systems is the same as restraining access to knowledge itself. The
Supreme Court has clearly ruled that the content of the Internet must have First Amendment
protections. Free access by faculty to that knowledge must be equally protected. A faculty
member must have the First Amendment freedom--academic freedom--to pursue the subjects
that he or she deems important for her research and teaching, and to require prior approval before
allowing access to research material fundamentally undermines the historic reason academic
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freedom came into being--to protect faculty from employer sanctions on new investigations and
discovery.
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