TABLE OF CONTENTS TABLE OF AUTHORITIES 11 INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 3 ARGUMENT

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2 TABLE OF CONTENTS TABLE OF AUTHORITIES 11 INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 3 ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT VIRGINIA CODE REACHES MUCH CONSTITUTIONALLY PROTECTED SPEECH IN A MEDIUM THAT THE FIRST AMENDMENT FULLY PROTECTS II. III. IV. VIRGINIA CODE UNCONSTITUTIONALLY RESTRICTS THE SPEECH OF PUBLIC EMPLOYEES ON MAITERS OF PUBLIC CONCERN WHILE GOVERNMENT OWNERSHIP OR CONTROL OF COMPUTER EQUIPMENT CONFERS SPECIAL POWERS, THOSE POWERS DO NOT INCLUDE THE DRASTIC RESTRICTIONS IMPOSED BY VIRGINIA CODE ACADEMIC FREEDOM, A "SPECIAL CONCERN OF THE FIRST AMENDMENT," REQUIRES THAT PUBLIC UNIVERSITY PROFESSORS HAVE THE DISCRETION TO USE THE INTERNET AS A TEACHING AND RESEARCH TOOL V. VIRGINIA CODE UNCONSTITUTIONALLY DISCRIMINATES ON THE BASIS OF CONTENT CONCLUSION 22 1

3 TABLE OF AUTHORITIES CASES Page(s) Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985), cert. denied 476 U.S (1986).... 7,8,9,10,11 Brandenburg v. Ohio, 395 U.S. 444 (1969) 13 Board ofregents of State Colleges v. Roth, 408 U.S. 564 (1972) Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) 13 Consolidated Edison Co. v. Public Service Comm 'n., 447 U.S. 530 (1980) Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985) Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) Jenkins v. Georgia, 418 U.S. 153 (1974) 4 Keyishian v. Board of Regents, 385 U.S. 589 (1967) 16,18 Miller v. California, 413 U.S. 15 (1973) 4,13 New York v. Ferber, 458 U.S. 747 (1982) 4,13 New York Times v. Sullivan, 376 U.S. 254 (1964) 13,21 Pickering v. Board ofeduc., 391 U.S. 563 (1968) 6,8,9,10,11 Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972) Rankin v. McPherson, 483 U.S. 378 (1987) 9,21 R.A. V. v. St. Paul, 505 U.S. 377 (1992)

4 TABLE OF AUTHORITIES (continued) CASES Page(s) Reno v. ACLU, U.S.,117 S.Ct (1997) - - 4,5,11,17 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) ,19,20,21 Rust v. Sullivan, 500 U.S. 173 (1991) 19 Sanjour v. Environmental Protection Agency, 56 F.3d 85 (D.C. Cir. 1995) Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991)...' State Board for Community Colleges and Occupational Education v. Olson, 687 P.2d 429 (Colo. 1984) Sweezy v. New Hampshire, 354 U.S. 234 (1957) 16 Tilton v. Richardson, 403 U.S. 672 (1971) 1 United States v. Gugliemi, 819 F.2d 451 (4th Cir. 1987) 4 United States v. National Treasury Employees Union, 513 U.S. 454 (1995).... 6,9,10 Urofsky v. Allen, I.A. at 417 passim Young v. American Mini Theatres, 427 U.S. 50 (1976) 12 Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), cert. denied, 1998 U.S. LEXIS 4047 (U.S. June 22, 1998) ,6 STATUTES Virginia Code passim 111

5 TABLE OF AUTHORITIES (continued) OTHER AUTHORITIES Page(s) AAUP, "Academic Freedom and Electronic Communications," Academe 41 (July/Aug. 1997) ,18 "1940 Statement of Principles on Academic Freedom and Tenure," AAUP Policy Documents and Repons (1995 ed.).... 1,16 Geoffrey Stone, Anti-Pornography Legislation as Viewpoint Discrimination, 9 Harv. l. L. & Pub. Pol. 461 (1986) Laurence Tribe, American Constitutional Law, 12-2, at (2d ed. 1988) Virginia Department of Personnel Training Policies and Procedures Manual, 9/16/93, l.a. pp IV

6 STATEMENT OF INTEREST OF AMICI CURIAE The American Association of University Professors (AAUP) is an organization of approximately 44,000 faculty members and research scholars in all academic disciplines. Founded in 1915, the Association is committed to the defense of academic freedom and the free exchange of ideas in scholarly and creative work. Among the organization's central functions is the development of policy standards for the protection of academic freedom, tenure, and other elements central to higher education. The Association's policy statements have long emphasized the need for wide latitude in teaching and research for professors and their students in the pursuit of knowledge -- including with regard to controversial topics or examples that are relevant to the subject matter. See, e.g., "1940 Statement of Principles on Academic Freedom and Tenure," AAUP Policy Documents and Repons (1995 ed.) (endorsed by more than 150 professional organizations and learned societies). AAUP's policies are widely respected and followed as models in American colleges and universities. See, e.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 579 n. 17 (1972); Tilton v. Richardson, 403 U.S. 672, (1971). Faculty members rely increasingly on the Internet for teaching and research. AAUP is concerned that Virginia Code will chill on-line expression and discussion on a wide variety of academic subjects (e.g., medicine, biology, anatomy, social work, literature, art, and journalism), impairing use of this promising new medium for legitimate pedagogical and research purposes in the pursuit of truth and knowledge for its many members and other faculty at public institutions in the Commonwealth of Virginia. 1

7 The Authors Guild is a national association of over 7,000 professional book and periodical writers of all genres, including journalists, historians, biographers and other writers of fiction and nonfiction. Founded in 1912, it is the oldest and largest organization of published writers in the United States. Members of the Authors Guild include winners of the Pulitzer and Nobel Prizes, National Book Awards, and other prestigious awards and prizes. The Authors Guild works to promote the professional interests of its members and to educate the community at large on issues facing publishing-related industries. One of the Authors Guild's principal purposes is to express its members' views in cases involving questions of freedom of expression and to support that fundamental constitutional right. Many of its members rely heavily on the extraordinary opportunity for free and open communication offered by on-line services and the Internet, which allow its members to participate in a true "marketplace of ideas." The Authors Guild opposes the Commonwealth of Virginia's Restrictions on State Employee Access to Information Infrastructure Act because it will chill free speech on matters of crucial concern to the public. The Thomas Jefferson Center for the Protection of Free Expression is a nonprofit, nonpartisan organization devoted solely to the protection of free speech and free press. Since its opening in 1990, the Center has pursued its mission in various forms, including the filing of amicus curiae briefs in both state and federal courts. A number of these cases involved questions of academic freedom and free speech within the academic community. The Center has also filed briefs in cases involving the First Amendment rights of public employees and of Internet users. 2

8 SUMMARY OF ARGUMENT The judgment of the district court was correct and should be affirmed. The statute, which was held unconstitutional, clearly reaches a substantial amount of expression that the First Amendment protects. If government sought to proscribe such speech in more familiar print media, the outcome would be beyond doubt. The medium to which the statute applies - communication via the Internet -- enjoys no lower standard of First Amendment protection than do more familiar and traditional print media. The statute under challenge could therefore be sustained only if its focus on speech of government employees, or its application to the use of government-owned or -leased computing equipment or systems, warrants a constitutionally different treatment. Neither factor dilutes the scope of First Amendment protection. Speech of public employees on matters of public concern is constitutionally protected, except in ways that reflect special government interests -- for example, the need to prevent a staff member from purporting to represent the agency with no authority to do so. No special interest is present in this case. Nor does government ownership or control of the computing equipment justify curbing otherwise protected speech. While government obviously has certain authority in this regard -- for example, to ensure that essential state business is performed with state equipment and facilities -- such interests have not been shown to be impaired to any substantial degree by the expressive activity that this statute forbids. The challenged statute also has been shown to impinge with special force upon the academic freedom of teachers and students at Virginia's public colleges and universities. Finally, the statute unconstitutionally discriminates on the basis of content. Thus the judgment of the district court was in all 3

9 respects correct, and should now be affirmed. ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT VIRGINIA CODE REACHES MUCH CONSTITUTIONALLY PROTECTED SPEECH IN A MEDIUM THAT THE FIRST AMENDMENT FULLY PROTECTS. The reach of the statute under challenge substantially exceeds the limits that the First Amendment permits government to impose upon speech and press. Had the Virginia General Assembly imposed such constraints on newspaper, magazine or book publishers, or upon oral expression, the statute's unconstitutionality would be indisputable. See, e.g., United States v. Gugliemi, 819 F.2d 451 (4th Cir. 1987). While some of the expression covered by Va. Code et seq., falls within the power of government to proscribe in any medium - to the extent, for example, this law reaches obscenity and child pornography -- its expressly declared scope is far broader. Urofsky v. Allen, I.A. at The definition of "sexually explicit," a key provision of the statute, is not narrowly confined to expression government may criminalize under Miller v. California, 413 U.S. 15 (1973), or New York v. Ferber, 458 u.s. 747 (1982). Other provisions target depictions or portrayals of sexual conduct that might, but need not, be legally obscene. See Va. Code The scope of the statute thus reaches well beyond expression that the Supreme Court in Jenkins v. Georgia, 418 U.S. 153 (1974), and this Court in Gugliemi, 819 F.2d 451, declared that government may forbid under the First Amendment. Last year's Supreme Court decision in Reno v. ACLU, _ U.S. _, 117 S.Ct (1997), made unmistakably clear that the novelty of the Internet, as a medium for communication, does not diminish the First Amendment protection to which expression 4

10 through electronic means is entitled. As the Court recognized, the Internet -- a forum which by its very nature exists to facilitate communication -- each day carries a vast array of speech that has serious social, political, journalistic, literary, artistic, scientific and educational merit. ACLU, 117 S.Ct. at "From the publishers' point of view, " the Court noted, "it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers." Id. at See also J.A. at The Internet and the computers which form its foundations collectively exist for no reason other than to enable people allover the world to communicate, conduct research, acquire information, and discuss ideas with each other. Notwithstanding the Commonwealth's curt dismissal of this "unique and wholly new medium of worldwide communication," ACLU, 117 S.Ct. at 2334 (citations omitted), as "of very recent origin," Appellant Br. at 20, the Supreme Court found in precedent and logic "no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." ACLU, 117 S. Ct. at Quite simply, the "vast democratic fora of the Internet" deserve full First Amendment protection. Id. at In a similar spirit this Court has recognized, in Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), cert. denied, 1998 U.S. LEXIS 4047 (U.S. June 22, 1998) (No ), the vitality of the Internet as a medium and the importance of keeping this medium free of restrictions and burdens. Chief Judge Wilkinson observed in Zeran that "the amount of information communicated via interactive computer services is... staggering," and cautioned against allowing courts to impose tort liability that would "have an obvious chilling effect" upon those that provide access to the Internet. Id. at 331. Emphasizing the public 5

11 value of "the vigor of Internet speech," the Zeran court extended beyond a literal reading the protections that Congress had provided in 230 of the Communications Decency Act for those who maintain gateways to the world of digital communications. Id. at 333. While Zeran does not bear directly upon the issue of the present case, it does reflect this Court's early and welcome solicitude for speech on the Internet -- a view fully consonant with the Supreme Court's vindication of Internet speech in ACLU. Thus the analysis of the core issues of this case must proceed within a larger context of free speech precedent. Regardless of medium, any governmental effort to ban broadly the dissemination of material of the type this law reaches would clearly violate basic First Amendment principles. The only possible basis for a different outcome must be either the focus on public workers or on government-owned or -leased equipment. As the district court correctly ruled, neither factor warrants a different result here. ll. VIRGINIA CODE UNCONSTITUTIONALLY RESTRICTS THE SPEECH OF PUBLIC EMPLOYEES ON MATTERS OF PUBLIC CONCERN. For three decades the speech of government employees on matters of public concern has enjoyed substantial First Amendment protection. See Pickering v. Board ofeduc., 391 U.S. 563 (1968). As the Supreme Court has consistently declared, not only the government worker who speaks, but also the general public whom that person serves through his or her speech, reaps a direct and substantial benefit from a high level of freedom for such expression. United States v. National Treasury Employees Union, 513 U.S. 454, 464 (1995). On the basis of these precedents, the district court in Urofsky ruled that the 6

12 Commonwealth bears the burden of justifying broad, content-based constraints on the speech of its workers by showing that "the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." Uro/sky, J.A. at 424 (quoting NTEU, 513 U.S. at 468 (citations omitted». No federal circuit has more conscientiously applied those precepts than this Court. Since Berger v. Battaglia, 779 F.2d 992 (4th CiT. 1985), cen. denied, 476 U.S (1986), several fundamental principles have governed public employee speech cases. First, the crucial distinction between speech on matters of public and private concern must be sensitively applied; clearly unprotected as "private" is only that expression which is "merely that of a private grievance" against the agency or its head. Id. at 999. If, in contrast, "the 'public' or the 'community' is likely to be truly concerned with or interested in the expression," it is presumptively protected. Id. Second, public employee speech need not address political or even social matters to merit protection. The expression at issue in Berger was a police officer's imitation of 1920s singer Al Jolson, performed in black-face -- not for any ideological or political purpose but simply for artistic reasons. Id. at Such speech, ruled this Court, was entitled to "the same weight in absolute terms that would be accorded comparable artistic expression by citizens who do not work for the state." Id. at 999. Therefore, with special relevance to the issue now before this Court: [T]he basic principle is that except as qualified by the special exigencies of the employment relationship, public employees retain the full panoply of first amendment rights enjoyed by all citizens. One of the fundamental rights secured by the amendment is that of free, uncensored artistic expression - 7

13 even on matters trivial, vulgar or profane. Id. at Though Berger's expressive activity took place away from the workplace and during off-duty hours, pervasive reference to him as the "singing cop" across the community unmistakably implicated the agency by which he was employed, and apparently occasioned its concern. This Court later and forcefully underscored its view of the scope of First Amendment protection for artistic and other non-political speech in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, (4th Cir. 1993), holding that a public university could not constitutionally punish a social fraternity and its members for a tasteless and (to many on campus) deeply offensive, racially derogatory and sexist skit, even though the event claimed no value beyond entertainment. Third, when government claims internal disruption as a justification, this Court has insisted upon clear and substantial evidence that the speech itself will, in fact, have such an effect. In Berger, the State claimed that the expressive activity at issue disrupted the agency and its operations, 779 F.2d at one of several factors that Pickering recognized might warrant agency sanctions for employee speech. 391 U.S. at 570. Specifically, there was evidence that Berger's publicized off-duty black-face performances had provoked minority citizen criticism of the department of which he was a highly visible member, during a time of special emphasis on enhancing police-community relations. Nonetheless, this Court dismissed the claim that such public reaction, even protest, warranted curbing Berger's speech. The only valid agency interest was in "avoiding direct disruption, by the speech itself, of the public employer's internal operations and employment relationships." Berger, 8

14 779 F.2d at No mere speculation would suffice here; this Court stressed that the district court had found "that no such disruption was caused by Berger's speech." Id. This Court added that, under settled First Amendment principles, restraint of an employee's speech could not rest upon "threatened reaction to it by offended segments of the public," for that would amount to validating a kind of "heckler's veto." Id. at The Court concluded: ld. Short of direct incitements to violence by the very content of public employee speech (in which case the speech presumably would not be within general first amendment protection), we think this sort of threatened disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech. The need for government to provide clear and substantial proof of any feared disruption applies with special force in this case. In Berger, the issue was the disciplining of a single officer based on a specific act. ld. at The Act now confronting this Court imposes a proscriptive ban effecting the speech of thousands of state employees across a wide spectrum of content. As the Supreme Court noted in NTEU, "widespread impact... gives rise to far more serious concerns than could any single supervisory decision." 515 U.S. at 468. Thus, "the Government's burden is greater" in cases such as this where the state action in question involves preemptive deterrence of large numbers of people than when it simply involves "an isolated disciplinary action." ld. Nor, contrary to the Commonwealth's assertion, does the physical site of the speech affect the scope of First Amendment protection or the degree of the Commonwealth's burden. See Rankin v. McPherson, 483 U.S. 378, 384 (1987) (applying Pickering to speech 9

15 of a government employee made in the workplace while on government time.) See also NTEU, 513 U. S. at 480 (0'Connor, J., concurring in part) ("The time-tested Pickering balance... provides the governing framework for analysis of all manner of restrictions on speech by the government as an employer.") (emphasis added). In Berger, the performance happened to take place outside the police station -- though well within the larger metropolis where Officer Berger had come to be widely known for his novel and controversial expressive medium. 799 F.2d at Had such expression occurred in the workplace, the department might have taken steps to ensure that it did not dismpt operations or occupy so much time as to prevent employees from completing their assigned tasks -- but only under the rigorous standard elaborated above. See id. at The application of Pickering-Berger principles to the case at hand clearly supports the district court's mling. The speech at issue is indisputably "on matters of public concern"; there is no hint that any of the plaintiffs would seek to access or display material covered by the statute to press a "private grievance." While some of the material to which the statute applies may be artistic as well as political or social, the value of such material for First Amendment purposes, and specifically for purposes of public employee speech, is not diluted by that fact -- any more than Berger's black-face 10lson songs or the crude fraternity skit in Sigma Chi could be denied First Amendment protection on such grounds. Furthermore, public employee speech may not be curbed on the theory that accessing such material might "degrade the workplace and inhibit the productivity of those who work there," Appellant Br. at 35, or might create "problems" in that workplace. [d. at 37. Such concerns fall far short of the proven "disruption" that would alone under Pickering-Berger 10

16 justify such restraint. These concerns would, moreover, almost certainly be of the "threatened reaction... by offended segments" variety, which Berger expressly disallowed, under the very governmental interest that has been invoked here. See Berger, 779 F.2d at None of the content of any proscribed material -- displayed on a visible monitor or stored where others might access it separately -- could "direct[ly] incite... to violence" in the way this Court insisted public employee speech must do before it can be deemed "disruptive." Id. Since the Commonwealth fails to provide any other Pickering-based rationale that might justify silencing a public worker's speech on matters of public concern, the district court ruling was entirely consistent with settled precedent of the Supreme Court and of this Court. Finally, the district court properly rejected the claim that accessing sexually explicit material may create a regulable "secondary effect." The Supreme Court summarily rejected a comparable claim in ACLU, 117 S.Ct. at 2342; thus the analogy to physical zoning of adult businesses simply does not avail. What the Supreme Court has consistently invoked to sustain restrictive zoning of adult establishments are two elements that are simply not present here -- the impact of the ban on a business and not on the content of speech, and a substantial record of physical deterioration caused directly by the forbidden activity. Both factors are absent in this case. On the one hand, the regulated activity is protected speech, and not the conduct of a business -- in contrast, for example, to a ban that might be aimed solely at the commercial proprietors of certain types of websites. On the other hand, there is no evidence whatever that the availability through the Internet of an abundance of sexually explicit material has somehow "run down the neighborhood" in ways the "secondary effect" 11

17 thesis envisions. Cf Young v. American Mini Theatres, 427 U.S. 50 (1976). It is not the sources of the material, but only the effect it might have on those who access and display it, that prompted the concern of the General Assembly reflected in the statute now under challenge. ill. WHILE GOVERNMENT OWNERSHIP OR CONTROL OF COMPUTER EQUIPMENT CONFERS SPECIAL POWERS, THOSE POWERS DO NOT INCLUDE THE DRASTIC RESTRICTIONS IMPOSED BY VIRGINIA CODE Government may undoubtedly regulate the use of equipment it owns or leases in ways it may not control the use of privately owned equipment, even in the public workplace. Government agencies, for example, may take reasonable and content-neutral steps to ensure that the digital business of the Commonwealth is completed on time and in proper fashion. State workers who use computers could thus be told not to use the equipment for any other purpose than official business, and could be directed not to engage in online "diversions" to the detriment of their assigned tasks. Such interests are clear and well-recognized-and they have, as the district court made clear, remarkably little to do with any single category of content. Urofsky, LA. at 432. Indeed, policies already exist that directly serve these interests. 1 If these policies need to be strengthened or expanded, that may be done directly and without regard to any particular subject matter -- or, for that matter, any specific 1 The Department of Personnel and Training, for example, has promulgated "Standards of Conduct," which, inter alia, classifies the "[u]nauthorized use or misuse of state property or records" as a IIGroup II" offense. J. App. at

18 category of government-owned or leased-equipment. 2 While it is also possible that a valid state regulatory interest could justify a contentbased restriction on digital material, it is clear that the government may only so regulate in very limited contexts. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (direct incitement to imminent lawless conduct); New York Times v. Sullivan, 376 U.S. 254 (1964) (statements made with reckless disregard for their truth or falsity); Chap/insky v. New Hampshire, 315 U.S. 568 (1942) ("fighting words"). Government may (and typically does) bar the use of state computers or other means to access material that is unlawful-obscenity and child pornography being prime examples. See generally, Miller, 413 U.S. 15 (obscenity); Ferber, 458 U.S. 747 (child pornography). Illegal gambling also may surely be forbidden through use of state computers, as by any other means in the public workplace. But such a prospect is a far cry from the interests that the Commonwealth asserts here to support a broad, content- and viewpoint-based ban unrelated to concern for equipment safety or its potential abuse. Yet the Commonwealth merely offers a speech-neutral interest -- ensuring that government-owned computers are used only for "work-related" purposes -- to justify a speech-restrictive regulation that reaches only speech deemed "sexually explicit." Appellant 2 Some distinctive government powers might reflect a valid concern for the safety of the equipment itself, designed to avoid potential damage. Thus government might restrict use of its hardware to access or download digital material that posed a physical threat to the safety or normal uses of that equipment -- if, for example, a group of websites had been identifie(l as the source of a virus WhICh could harm software or migiit inhibit general use of the equipment.. h'l ' all l' "al. b"d " In this case, w 1 e certam sexu y exp IClt maten may sometimes e enser or higher in graphic-to-text ratio than other material that might be accessed' through the Internet, and may thus require broader bandwidth or longer time to obtain, that guality hardly poses any threat to the equipment, or to the capacity of the equipment to perform any other tasks. Nor has the Commonwealth invoked any such concern here in support of its content- and viewpoint-based restrictions. 13

19 Br. at 9. In invoking a regulatory warrant from the use of such terms as "work-related," the Commonwealth fails to appreciate a crucial distinction that underlies much of the Supreme Court's First Amendment jurisprudence: the distinction between permissible content-neutral restrictions that have incidental effects on speech and impermissible censorship that targets speech on the basis of its content or viewpoint. See Laurence Tribe, American Constitutional Law 12-2, (2d ed. 1988). The Court has repeatedly held that content- or viewpoint-based classifications require "the government... [to] show that the regulation is a precisely drawn means of serving a compelling state interest." Consolidated Edison Co. v. Public Service Comm'n., 447 U.S. 530, 540 (1980). In fact there is an illustrative analogy. Suppose a public library told its entire staff they must not use microform readers -- equipment owned by government -- to access at any time "sexually explicit" material, such as the text of Chaucer's Canterbury Tales, or graphic material about AIDS or other sexually-transmitted diseases, or explicit visual art -- or for that matter early microform issues of Playboy or Esquire. Or suppose, to take what may seem even further (but suitably analogous) conjecture, that state government forbids employees to access, through microform-readers or by using any other publicly-owned equipment, the editorial pages of a newspaper known to be consistently critical of the administration. Such examples may seem fanciful, and happily they are hypothetical. Yet each would invoke the central premise of argument the Commonwealth advances here -- that public ownership of the equipment empowers government to restrict its use in ways that go well beyond making sure that the public's business gets done on time, or that no harm befalls the 14

20 equipment itself through improper use. Beyond merely serving its speech-neutral interests in confining its employees to "work-related" activities through speech- and content-neutral means, the Commonwealth argues that it may directly regulate otherwise protected speech on the basis of its content or viewpoint. Such an expansive interpretation of governmental power, the First Amendment does not sanction. IV. ACADE.MIC FREEDOM, A "SPECIAL CONCERN OF THE FIRST AMENDMENT," REQUIRES THAT PUBLIC UNIVERSITY PROFESSORS HAVE THE DISCRETION TO USE THE INTERNET AS A TEACHING AND RESEARCH TOOL. The Internet is a powerful teaching and research tool. See I.A. at University professors use the Internet to supplement printed materials available to students to offer more comprehensive treatment of facts and issues. The ready access to information made possible by the Internet, in addition to smaller local area networks within university communities, enhances the educational experience. See id. at Professors use the Internet not only to teach courses covering such subjects as medicine, anatomy, biology, art, social work, journalism, and human rights, but also courses on such topics as the social and psychological effects of pornography and the philosophical implications of cyberspace. Such teaching is accomplished by posting course materials on Web sites, transmitting, via electronic mail, information located elsewhere on the Internet in a particular subject area, and, in many cases, by a combination of these methods. See id. at Professors also utilize the Internet in their own research and in order to communicate and exchange information with their colleagues at other Commonwealth institutions as well as outside the state. See, e.g., id. at (detailing the Act's effect on Plaintiffs' academic work). 15

21 Virginia Code poses a direct threat to academic freedom, which requires broad latitude for teaching and research in the pursuit of truth and knowledge. Academic freedom is a "special concern of the First Amendment." Keyishian v. Board ofregents, 385 u.s. 589, 603 (1967). The essentiality of freedom in the community of American universities is almost self-evident.... To impose any straight jacket upon intellectual leaders in our colleges and universities would imperil the future of our Nation.... Scholarship cannot flourish in an atmosphere of suspicion and distrust. 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). The "principle [of academic freedom] finds its source in the belief that teachers should be free to engage in the exchange of diverse ideas on controversial topics." State Board for Community Colleges and Occupational Education v. Olson, 687 P.2d 429, 437 (Colo. 1984). The 1940 Statement of Principles on Academic Freedom and Tenure, adopted 58 years ago by amicus American Association of University Professors (AAUP), and endorsed by more than 150 professional organizations and learned societies, applies fully and forcefully in the context of the Internet of the 1990s: "Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning." AAUP, Policy Documents & Reports 3 (1995 ed.). As AAUP states in its recent report on "Academic Freedom and Electronic Communications" : Freedom of expression and academic freedom should be limited to no greater degree in electronic format than in printed or oral communication, unless and to the degree that unique conditions of the new media warrant different treatment. While expression in cyberspace is obviously different in important 16

22 ways from print or oral expression -- for example, in the far greater speed of communication, and in the capacity to convey messages to far wider audiences -- such factors do not appear to justify alteration or dilution of basic principles of academic freedom and free inquiry within the academic community. AAUP, "Academic Freedom and Electronic Communications," Academe 41 (July/Aug. 1997). The Appellees in this case exemplify a variety of ways in which the Internet has made enormously valuable research and teaching materials readily available to professors and students, and the potential chilling effect of this law on legitimate areas of academic inquiry. Professor Melvin Urofsky, who teaches history at Virginia Commonwealth University, planned to ask his students to engage in Internet research for sexually explicit material to assess the legitimacy of Congress' concerns when it passed the 1996 Communications Decency Act, which was later struck down by the Supreme Court in Reno v. ACLU. With the passage of Virginia's law, Professor Urofsky deleted that assignment. J.A. at Professor Dana Heller, who teaches American Literature at Old Dominion University, is an expert in literary theory, gender studies, and gay and lesbian studies. Professor Heller subscribes to a number of Listserves, which are on-going exchanges of information in which usually no one censors or controls the content, covering Lesbian Studies, Sappho, and Lesbian Avengers. Id. at Professor Paul Smith, director of George Mason University'S (GMU) Center for the Study of the Americas, is a recognized leader in semiotics, deconstruction, Marxist theory, and feminist studies. In 1996 Professor Smith was engaged in a study of how pornographic imagery is produced, consumed and interpreted in popular culture and, toward that end, started to construct a Web site. Pursuant to the new law, an administrator at GMU ordered Professor Smith to remove some of the images. Id. 17

23 at As AAUP provides in its report on "Academic Freedom and Electronic Communications, " In many academic disciplines, faculty members may share and distribute sexually explicit and other potentially controversial material. Faculty in other fields may legitimately wish to access or transit such materials. Such dissemination is generally accepted in the print environment. '... But even if the material posted in cyberspace is controversial, so long as it is not unlawful it should not be barred simply because it comes in electronic format. Academe at These examples demonstrate the variety of ways in which Virginia Code infringes directly and substantially upon the academic freedom of the Commonwealth's professors to engage in scholarship using the Internet. Faculty members of both public and private institutions undertake the responsibility to explore and convey ideas on often sensitive or controversial subjects. In exploring such ideas, these faculty members do not represent such expression to be the official perspective of the institution for which they work. Indeed, the government's role in the public university is largely to remove barriers and create conditions by which professors and students may exercise the "robust exchange of ideas" in the academy. Keyishian, 385 U.S. at 603. V. VIRGINIA CODE UNCONSTITUTIONALLY DISCRIMINATES ON THE BASIS OF CONTENT. Governmental action is subject to the most stringent scrutiny under the First Amendment when it seeks to discriminate based on the content of communication, and such content-based discrimination is presumptively invalid. See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995); R.A. v. v. St. Paul, 505 U.S. 377,

24 (1992); Simon & Schuster, Inc. v. Members ofthe N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); Police Depanment ofchicago v. Mosley, 408 U.S. 92, (1972). The First Amendment's command of content-neutrality, whenever government acts to restrict communicative and expressive activity, is especially offended when such restrictions discriminate on the basis of viewpoint. As the Supreme Court declared in Rosenberger, "[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.,,3 515 U.S. at 829. This conclusion is cast in bold relief by the Court's ruling in R.A. V., that even where a whole category of expression may lack First Amendment protection, or may enjoy lesser protection, government may not impose distinctions based on content within that category. 505 U.S. at 381. The regulation challenged here is similar to that rejected by the Supreme Court in Rosenberger as impermissible viewpoint discrimination. 515 U.S. at 831. In Rosenberger, the Court held that "viewpoint discrimination is the proper way to interpret" the University 3 The state's reliance on Rust v. Sullivan, 500 U.S. 173 (1991), as sanctioning its viewpoint-discrimination is misplaced. In Rust, the Supreme Court explicitly recognized only that, in the allocation of government monies, "[a] refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." 500 U.S. at 193 (citations omitted). In this case, the Commonwealth has alread;: expended funds by purchasing and maintaining the computer systems through which sexuaily explicit" information (whatever the term may encompass) may be communicated. Indeed, by its very own terms, the Act contemplates that such "sexually explicit" communications may legitimately come witom the parameters of the state's own programs, in whicb case Rust's concern over the allocation of limited public resources is inapplicable. What was involved in Rust was "a.case of the Government refusing to fund activities, including ~peech, which are specifically excluded from the scope of the project fund." Id. at

25 of Virginia's policy of not disbursing student activity funds to religious groups.4 [d. As the Court noted, "[r]eligion may be a vast area of inquiry, but it also provides... a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered." [d. Similarly, in this case "sexually explicit" ideas find numerous applications in the academic and discursive universe. The Act covers and restricts electronic speech on any and every subject -- from 20th Century English Literature to public health reports on sexually-transmitted diseases -- if it is discussed from a "sexually explicit" viewpoint or through "sexually explicit" means. See Geoffrey Stone, Anti-Pornography Legislation as Viewpoint Discrimination, 9 Harv. I. L. & Pub. Pol. 461 (1986). For example, the Act tells professors of art history that, in order to view sculptures expressed through "sexually explicit" means, such as Michelangelo's David or Milo's Venus, they must seek and obtain prior approval or risk violating the Act. That the Act targets speech on the basis of viewpoint is made even more apparent by what the district court correctly found to be the "obvious lack of 'fit' between the Commonwealth's purported interest and the sweep of its restrictions." Urofsky, I.A. at 432 (citing Sanjour v. Environmental Protection Agency, 56 F.3d 85, 95 (D.C. Cir. 1995)). The mismatch between the Commonwealth's proffered interests and the actual reach of the Act - in addition to the availability of content- and viewpoint-neutral means to further the Commonwealth's interests --lends credence to the possibility that government actually seeks to single out particular "sexually explicit" viewpoints for disfavored treatment. As the!oj The regulation in Rosenberger withheld any ]ayments from the student activity fund for groups which "~rimarily promoted or manifesto a particular belief in or about a deity or ultimate reality.' [d. at

26 district court rightly held, "the Act's poor fit and the availability of content-neutral alternatives suggest that the Act was intended to discourage discourse on sexual topics, 'not because it hampers public functions but simply because [the Commonwealth] disagree[s] with the content of the employees' speech." Urofsky, J.A. at 445 (quoting Rankin, 483 U.S. at 384). Yet the Supreme Court has long recognized that governmental disapproval of particular messages does not comport with First Amendments protections. See, e.g., Cornelius v. NAACP Legal Defense & Edue. Fund, 473 U.S. 788, 806 (1985). Sexuality is but one of many departure points from which to approach any given subject matter. For the Commonwealth to argue, in support of the imposition of such viewpoint discrimination, that "[t]he number of state employees needing to use state computers for truly 'sexually explicit' materials is quite limited," Appellant Br. at 9, is to "embraced... a contrived description of the marketplace of ideas." Rosenberger, 515 U.S. at 831. Once government acts to censor speech on the basis of viewpoint, even to further some articulable governmental interest, the threat to the First Amendment interests in keeping the marketplace of ideas "uninhibited, robust, and wide-open," (Sullivan, 376 U.S. at 270), imposes upon government a heightened burden to justify its actions. The district court was properly vigilant against such potential dangers and should be affirmed. 21

27 CONCLUSION For the foregoing reasons, we respectfully urge affirming the judgment of the district court. Respectfully submitted, By: J. Joshua Wheeler Robert M. O'Neil The Thomas Jefferson Center for the Protection of Free Expression 400 Peter Jefferson Place Charlottesville, Virginia (804) Jonathan Alger Donna Euben American Association of University Professors th Street, N.W., Suite 500 Washington, D.C (202) Edward M. McCoyd The Authors Guild 330 West 42nd Street New York, NY (212)

28 CERTIFICATE OF SERVICE I hereby certify that on this ~C day of June 1998, the requisite number of copies of the foregoing Brief of Amici Curiae were mailed, first-class with postage prepaid to: Office of the Attorney General Attn: William H. Hurd 900 East Main Street Richmond, VA Mary Bauer ACLU of Virginia 6 North 6th Street, Suite 400 Richmond, VA Marjorie Heins Anne Beeson American Civil Liberties Union Fdn. 125 Broad Street New York, NY Louis M. Bograd American Civil Liberties Union Fdn. 122 Maryland Avenue, N.E. Washington, D.C Michael H. Hammer Francis M. Buono Todd G. Hartman Wilkie, Farr & Gallagher st Street, N.W., Suite 600 Washington, D.C