May 8, 1997 1:45 PM PDT
Virginia decency law challenged
The professors say a state law in place since July violates their First Amendment rights to speak and teach freely. Virginia has restricted use of publicly funded computers to seek, post, print, or store sexual information, material that could include topics such as AIDS, human sexuality, popular culture, or even poetry.
Unlike other laws regulating Internet material, such as the federal Communications Decency Act now before the Supreme Court, Virginia's statute was not enacted to protect minors, but to keep adults' computers free of sex. Oklahoma enforces a similar law that was challenged by a professor who lost his case earlier this year.
The American Civil Liberties Union filed the case today on behalf of the Virginia professors, a legal challenge that has been in the works since late last November when Paul Smith, a professor of English and cultural studies at George Mason University, was told to remove five nude pictures from his Web site.
"We consider this to be serious threat to the First Amendment, censoring expression about sexuality, regardless of whether it is contained in serious art, literature, or other educational context," ACLU staff attorney Marjorie Heins said today.
"I don't think we've seen this type of attack on academic freedom since the McCarthy era. These six professors represent the most dramatic examples of the adverse effects this law will have throughout state because they are constantly communicating on the Net with other professors and students about these topics," Heins said.
The law prohibits obtaining or displaying visual images "showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple" or images of "sexual bestiality, sexual excitement, conduct or sadomasochistic abuse, human male or female genitals, pubic area, or buttocks."
Smith put some nude pictures on his Web site as part of an assignment on censorship in his popular culture course that examines the media's depiction of gender and sexuality. The photos fell under the states' definition of "sexually explicit."
In November, the university asked Smith to take down the pictures, but he said his site was shut down before he could remove them voluntarily. Until the case is decided, Smith won't surf the Web on campus.
"An administrator at the school broke the law by going to look at those pictures, and then the university asked me to take the stuff down," Smith said today. "It's common sense that you can't deal with popular cultural without coming up against what this law would call sexually explicit material."
State employees can ask for permission in writing from their superiors to use their computers to find or send the prohibited material, but the requests are available to the public. The ACLU says this also violates privacy and restricts academic freedom.
"Our view is that this lawsuit is a misinterpretation of the law. Adequate academic research and teaching can be done without the use of pornographic material," said Julie Overy, spokeswoman for Virginia Gov. George Allen. The governor signed the law, which was introduced by state Rep. Robert Marshall (R-Manassas) and approved unanimously in the state House and Senate last year.
The other professors named in the case have not yet been asked to halt their online practices.
But plaintiff Terry Meyers could get in trouble for his study of 19th century poet named Algernon Charles Swinburne. A professor and chair of the English Department at the College of William & Mary, Meyers said Swinburne's work is too provocative to slip by Virginia's law.
"Swinburne was a bad boy of British poetry in the 1860s and 1870s. He believed in democracy, was not happy with Christian ideas, and published a lot of poems about alternative sexuality," Meyers said.
The law violates protection given for other media, he added. "This law would cut me off from accessing material Swinburne wrote that is now on the Internet, but his books are in the university library where I can check them out."
Professors named in the case also teach history, contemporary American literature, and psychology. Brian Delaney and Bernard Levin of Blue Ridge Community College, Dana Heller of Old Dominion University, and Melvin Urofsky of Commonwealth University were also named in the case.
The fact that university students can download material on campus computers while teachers can't is just one flaw in the statute, Urofsky said.
"I was teaching a communications law course which included a section on the CDA, and I wanted to give students an assignment to find out how easy it was to find porn on the Net because that was Congress's rationale for passing the law," he said. "But as their teacher should not check their work without violating the law."