Pushing forward its state-by-state campaign to overturn Internet decency laws, the American Civil Liberties Union on Thursday filed a challenge to a Virginia law banning state employees from viewing "sexually explicit" online communications.
"This is not a law about state employees accessing Penthouse," said Marjorie Heins, an ACLU staff attorney working on the suit. "In fact, it has a rather obvious oppressive effect on totally legitimate activities. A lot of literature is sexually explicit, and a lot of it is online. Under this law, professors can't use that."
The ACLU filed the complaint in US District Court for the Eastern District of Virginia on behalf of six Virginia professors "who regularly use state-owned or -leased computers to connect to the Internet and other online communications services to access, download, print, or store sexually explicit but nonobscene materials as part of their teaching, research, and other professional responsibilities." Among other things, the brief slams the 10-month-old law for making it illegal for a professor to use online sources to access materials long available and legal in traditional scholarly media such as books, articles, and oral presentations.
Plaintiffs say the restrictions apply in a particularly tricky or absurd manner to the works of Sigmund Freud, whose theories about penis envy and the oral, anal, and genital stages of development are nothing if not "sexually explicit," and the poems of a pre-Raphaelite British poet, Algernon Charles Swinburne, whom one plaintiff describes as "the bad boy of Victorian poetry."
In 1866, Swinburne published a poem called "Anactoria," a dramatic monolog addressed by Sappho to her lesbian lover. Terry L. Meyers, a 27-year veteran of the College of William and Mary English department, said, "It's fabulous, but it's shot through with sexually explicit scenes."
Meyers finds himself particularly galled by two contradictions he faces under the law.
The first is that he's perfectly free to stroll over to the state-funded college library and check out a copy of "Anactoria" without anybody but the librarian being the wiser. To access it online, he must get written permission. The second contradiction is that the university library has one of the best online databases of British literature anywhere in the world - but one which Meyers, a full professor, can't use to access poems in his area of specialty.
Also at issue is the fact that in the linked environment of the World Wide Web, Virginia professors are usually just a mouse click away from breaking the law.
"Three years ago, I wrote a book about Clint Eastwood," said plaintiff Paul Smith, a professor of English and Cultural studies at George Mason University. "I still follow his activities. Just the other day, I was online in my office and I looked at a Clint Eastwood site. A movie still that definitely qualified as sexually explicit popped up first thing. I jumped off as quickly as possible, but it still put me in an interesting legal position."
The Virginia suit is one of three Net decency challenges the ACLU has brought against state laws since early 1996, when the passage of the federal Communications Decency Act kicked off the current frenzy of Internet content regulation. Decisions are pending in cases in Georgia and New York. The federal law is currently under review by the US Supreme Court, with a decision expected by early July.
