# Urofsky v. Gilmore

> Court of Appeals for the Fourth Circuit · July 6, 2000 · 216 F.3d 401

URL: https://www.frixlaw.com/law-library/cases/9813110

## Case

- **Full name:** Melvin I. UROFSKY; Paul Smith; Brian J. Delaney; Dana Heller; Bernard H. Levin; Terry L. Meyers, Plaintiffs-Appellees, v. James S. GILMORE, III, in His Official Capacity as Governor of the Commonwealth of Virginia, Defendant-Appellant. American Association of University Professors; The Authors Guild; The Thomas Jefferson Center for the Protection of Free Expression, Amici Curiae
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** July 6, 2000
- **Citations:** 216 F.3d 401
- **Precedential status:** Published
- **Opinion:** Concurrence by Hamilton
- **Judges:** Wilkinson, Widener, Murnaghan, Wilkins, Niemeyer, Luttig, Williams, Michael, Motz, Traxler, King, Hamilton
- **Cited by:** 104 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/9813110

## How later opinions describe it (automated extraction)

- stating that “critical to a determination of whether employee speech is entitled to First Amendment protection is whether the speech is made primarily in the employee’s role as citizen or primarily in his role as employee” (internal quotation marks and alteration omitted)
- reasoning that “ ‘graphic images of a nude woman in chains, a nude man with an erection, and a man and woman engaged in anal intercourse’ ” could contribute “to a hostile work environment” (quoting Urofsky v. Allen, 995 F.Supp. 634, 639 (E.D.Va.1998))
- holding that the determination whether the speech was made ''primarily in the [employee's] role as citizen or primarily in his role as employee” is "critical,” and providing examples of a public employee acting in each role
- stating government should be required to show that the interests of plaintiffs and of society in the expression “are outweighed by [the] expression’s necessary impact on the actual operation of the Government.”
- finding that the language of a Virginia statute restricting state employees from accessing sexually explicit material on state computers clearly implicated only speech made in the employee’s role as employee

## Opinion text

HAMILTON, Senior Circuit Judge,
concurring:
The Appellees claim that they have a First Amendment right to access and disseminate sexually explicit materials on computers that are owned or leased by the Commonwealth. The Appellees’ access to, and dissemination of, sexually explicit materials is necessary for them to perform their duties as educators; but, nevertheless, the Appellees’ access to, and dissemination of, sexually explicit materials is accomplished in their capacities as state employees. Because the Appellees’ access to, and dissemination of, sexually explicit materials is accomplished in their capacities as state employees, the court today correctly concludes under the implicit holding of our en banc decision in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.) (en banc), cert. denied, 525 U.S. 813 , 119 S.Ct. 47 , 142 L.Ed.2d 36 (1998), that the speech in this case is employee, speech, and, therefore, not entitled to First Amendment protection. Furthermore, the court correctly rejects the Appellees’ contention that even if the Act is constitutionally valid as to the majority of state employees, it is invalid to the extent it infringes on the academic freedom rights of university faculty.
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 Appellees’ 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 *426 decision in Boring , a decision the en banc court chose not to revisit in the present case, I concur in the court’s majority 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/9813110. Public record. Not legal advice.