# Urofsky v. Gilmore

> Court of Appeals for the Fourth Circuit · February 10, 1999 · 167 F.3d 191

URL: https://www.frixlaw.com/law-library/cases/6981662

## Case

- **Full name:** Melvin I. UROFSKY Paul Smith Brian J. Delaney Dana Heller Bernard H. Levin Terry L. Meyers v. James S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia, American Association of University Professors The Author's Guild The Thomas Jefferson Center for the Protection of Free Expression, Amici Curiae
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** February 10, 1999
- **Citations:** 167 F.3d 191; 1999 WL 61952
- **Precedential status:** Published
- **Opinion:** Concurrence by Hamilton
- **Judges:** Hamilton, Luttig, Wilkins
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6981662

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6981662. Public record. Not legal advice.