For Many State Workers, an Unknown Restriction

The law is in some ways even more dangerous now that it's off most educators' radar screens, according to Chris Hansen, an ACLU attorney who has worked against state laws designed to restrict access to pornographic material online. "It is particularly troubling to have out there laws that society agrees aren't worth enforcing but that can be whipped out at any moment by an unscrupulous administrator," Hansen said.

Feiss agrees: "The scary thing, of course, is it's the kind of law that could be used at the discretion of an administrator. If you had a faculty member who for whatever reason was deemed obnoxious, you could dredge this out."

Disciplinary Action

Terry Meyers may be the only professor in the state who follows the law, but GMU professor Paul Smith is one of the tiny few who has been disciplined under it. In 1996, while the law was still fresh in the minds of administrators, Smith was learning how to design a Web site, using an address and server space provided by the university. At the time the cultural-studies specialist was examining the availability of pornography on the still-young World Wide Web.

Specifically, Smith focused on the career of former underage porn star Traci Lords. On his newly minted Internet site, he posted photos of Lords as well as other pornographic images he'd captured from other sites, along with commentary.

Soon after, Smith said, a school official received complaints about the site and said he would block the offending images until Smith agreed to remove them. "I kind of jumped up and down a bit," Smith said. "There was some going back and forth with him over what my rights were. He said the law was pretty clear and Mason was responsible for executing it."

Smith took down the photos and soon after returned a computer the university had provided for home research, replacing it with his own PC and a private Internet connection. Rather than pursue his own case against the university and the state, Smith added himself to the roster of professors named in the Virginia ACLU's case against the law.

A lower court sided with the professors, ruling the law unconstitutional, but in 2000 the Fourth Circuit overturned that ruling, saying academic freedom is not a right afforded professors under the First Amendment and that the state does have the authority to dictate how its employees use state-issued equipment. The U.S. Supreme Court refused to take up the case in 2001, handing the ACLU one its few defeats in the realm of Internet regulation.

The group has successfully challenged laws in New York, New Mexico, Michigan and a handful of other states designed to restrict access to Internet smut. Hansen said the Virginia law's narrow focus on state employees probably made the difference. He said he's glad other states haven't tried to follow suit.

"If there are others we certainly haven't heard of them. I believe Virginia's is unique, which is good for the citizens of the other 49 states," Hansen said.

The only way the ACLU could reopen the case would be if a professor asked permission to research a topic and was denied by an administrator. Depending on the circumstances, such an instance could give professors and civil libertarians the ammunition they need to challenge the application of the law.

Meyers is committed to making that happen. Hence his monthly e-mails to the dean, asking permission to read 19th-century poems or look at renaissance art. "It's a funny kind of thing where I have to leap through these hoops and they pretty much have to say 'yes' to me."

In the case of Hawthorne's faun, however, Meyers needn't have worried. Sometime between Hawthorne's visit to Rome and Meyers's first authorized look at the statue on the Internet, someone had apparently anticipated the Virginia law, grafting a fig leaf onto the figure's stone genitals.