law “restricting state employees from accessing sexually explicit material on computers that are owned or leased by the Commonwealth unless given permission to do so ... regulates the speech of individuals speaking in their capacity as Commonwealth employees, not as citizens, and thus ... does not touch upon a matter of public concern”
How later courts described this case
- law “restricting state employees from accessing sexually explicit material on computers that are owned or leased by the Commonwealth unless given permission to do so ... regulates the speech of individuals speaking in their capacity as Commonwealth employees, not as citizens, and thus ... does not touch upon a matter of public concern”
- “the Court ha[s] distinguished between speaking as a citizen and as an employee, and ha[s] focused on speech as a citizen as that for which constitutional protection is afforded”.
Written by the judges who cited it.
The opinion
HAMILTON, Circuit Judge,
concurring:
The Plaintiffs claim that they have a First Amendment right to access and disseminate sexually explicit materials on computers that are owned and operated by the Commonwealth. The Plaintiffs’ access to, and dissemination of, sexually explicit materials is necessary for them to perform their duties as educators; but, nevertheless, the Plaintiffs’ access to, and dissemination of, sexually explicit materials is accomplished in their capacities as state employees. Because the Plaintiffs’ access to, and dissemination of, sexually explicit materials is accomplished in their capacities as state employees, the court today correctly concludes that the speech in this case, under the implicit holding of our en banc decision in Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir.) (en banc ), cert. denied, 119 S.Ct. 47 (1998), is employee speech, and, therefore, not entitled to First Amendment protection.
I joined Judge Motz’s dissent in Boring which persuasively explains why a public employee should enjoy far greater First Amendment protection than that contemplated by Boring. See id. at 378-80. Left to my own devices, I would hold that the Plaintiffs’ speech in this case is entitled to some measure of First Amendment protection, thus triggering application of the Connick /Pickering balancing test. However, being bound by the en banc court’s decision in Boring, I concur in the court’s opinion.
Finally, I write separately to make clear that we leave unanswered the question of whether a governmental employee who seeks to access and disseminate sexually explicit materials rising to the level of matters of public concern, not in his or her role as a governmental employee, but rather as a private citizen, is entitled to some measure of First Amendment protection. The facts of this case leave that issue for another day.