Urofsky v. Gilmore


The case of Urofsky v. Gilmore (2000) involved a statute from Virginia that forbade public employees from accessing sexually explicit material on the Internet on publicly owned or leased computers, except in conjunction with bona fide research projects. At issue were whether the statute violated the First Amendment rights of all public employees and whether the statute infringed on the academic freedom rights of faculty members. Ultimately, the Fourth Circuit ruled that the law was not unconstitutionally vague or overbroad and that it did not infringe on either the First Amendment rights of public employees in general or the academic freedom rights of faculty members in public colleges and universities in particular. In light of the significant issues that Urofsky raises about the academic freedom and free speech rights of faculty members in higher education during the cyber age, this entry reviews the court’s rationale in detail.

Facts of the Case


In 1999, six faculty members who were employed by public institutions in Virginia filed suit, challenging the constitutionality of a commonwealth statute. The plaintiffs alleged that the law violated their right to access sexually explicit materials on the Internet for work-related purposes and that it infringed their rights to academic freedom by denying them the opportunity to determine for themselves the topics about which they would engage in research and teaching. A federal trial court granted the faculty members’ motion for summary judgment on the basis that the law violated their rights to freedom of speech, because it unconstitutionally infringed on their First Amendment rights by failing to provide sufficient clarity on the kinds of Web sites to which it was regulating access.

The Fourth Circuit’s Ruling


On further review, a three-judge panel of the Fourth Circuit reversed in favor of the commonwealth. The court was satisfied that the statute was constitutional, because it regulated the speech of pubic employees only in their official capacities (and not as private citizens) as they addressed “matters of public concern.” The court explained that the speech of public employees involves matters of public concern and is entitled to First Amendment protection only when it addresses an issue of social, political, or other interest to the community, a situation that was not present in the case at bar.
Subsequently, the Fourth Circuit vacated the judgment of the three-judge panel, and in an en banc hearing (meaning that all of its members had the opportunity to review the dispute), again reversed in upholding the constitutionality of the statute. The Fourth Circuit viewed the faculty members’ challenge as twofold. First, the court observed that the faculty members argued that the act unconstitutionally violated the rights of all state employees. Second, the court acknowledged that the faculty members claimed that the act infringed on their rights to academic freedom.
As to the first claim, the Fourth Circuit pointed out that the act restricted access to material that was sexual in nature only on public computers. Further, the court indicated that agency heads could authorize access to information on public computers if it was necessary to do so in support of legitimate research projects. In fact, the court commented that none of the faculty members had requested or been denied access to material that was sexually explicit. In addition, the court remarked that the faculty members did not assert a constitutional right to access the materials on publicly owned or leased computers for personal use, because they challenged the restriction on their ability to view Web sites for work-related purposes. Moreover, the court thought that the faculty members conceded that the law did not impact their speech as private citizens and that they were free to access the material in question on their personal computers.
Citing First Amendment jurisprudence, the court reasoned that the commonwealth, acting as an employer through its officials, had greater authority to restrict the speech of employees than it would have had as the state, acting through its appointed and elected officials, to limit the speech of the general citizenry. Further, they applied the balancing test that the U.S. Supreme Court enunciated in Pickering v. Board of Education (1968), a dispute involving the free speech rights of teachers in public schools. In Pickering, the Supreme Court found that when the speech of public employees as private citizens does not involve matters of public concern, then public officials may regulate their speech and related conduct without infringing on the First Amendment. Insofar as Urofsky involved the speech of public employees in their work capacities and not as private citizens addressing matters of public concern, the court ascertained that commonwealth officials could control the manner in which they discharged their official duties. The court thus held that because the statute did not infringe on the First Amendment rights of the faculty members, it was not unconstitutional.
Turning to the second claim, the court addressed whether the statute violated the First Amendment rights of the faculty members to academic freedom by hindering their ability to perform professional duties, particularly with regard to teaching and research. The faculty members also alleged that their academic freedom was a constitutional right as well as a professional norm. In its analysis here, the court cited the American Association of University Professors’ (AAUP) definition of academic freedom as
a right claimed by the accredited educator . . . to interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because the conclusions are unacceptable to some constituted authority within or beyond the institution. (Urofsky, p. 411)
The court, however, interpreted the AAUP’s words as conceiving of academic freedom as a professional norm to facilitate the search for truth and not as a legal manifestation of the First Amendment. Citing Supreme Court precedent, the Fourth Circuit was of the opinion that despite having many opportunities to do so, the Supreme Court had never treated faculty members as having a constitutional right to academic freedom to determine for themselves the content of their courses and scholarship. Simply put, the court wrote that academic freedom was not a constitutional right under the First Amendment. Based on its review of existing jurisprudence, the Fourth Circuit concluded that to the extent that the Constitution recognizes that faculty members have a right to academic freedom that exceeds the First Amendment rights of all citizens, it inheres to their universities and not to individual faculty members. In other words, in rejecting the challenge to the statute, the court decided that academic freedom rights belong to universities rather than to faculty members and students. To the chagrin of many in higher education, the Supreme Court refused to hear a further appeal.

Impact of the Ruling


Even though Urofsky’s holding is limited to the Fourth Circuit, it remains a noteworthy case. Urofsky is important, because it opened the door to what should be ensuing discussions about the free speech and academic rights of faculty members in colleges and universities during the cyber age. In this discussion, educators, jurists, and lawmakers will have to balance the rights of faculty members to access information that is relevant to their work as academicians in research and teaching with their rights to access materials that have little or nothing to do with their professional lives while at work. Thus, perhaps the most significant question that Urofsky raises is whether the academic freedom of faculty members in public colleges and universities gives them rights that are more extensive than those of other public employees, or whether their rights can be limited in the same fashion as those of other public employees.
Robert C. Cloud

See also acceptable use policies; Privacy Rights of Faculty Members
Further Readings
Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
Weidner, D. (2002). Thoughts on academic freedom: Urofsky and beyond. University of Toledo Law Review, 31, 257–268.
Williams, K. (2002). Loss of academic freedom on the Internet: The Fourth Circuit’s decision in Urofsky v. Gilmore. Review of Litigation, 21, 493–527.
Legal Citations
Pickering v. Board of Education, 391 U.S. 563 (1968).
Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).