The Volokh Conspiracy
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Security Clearance Denied for Watching Furry Porn Depicting Animated 16-Year-Olds
From Bierly v. Dep't of Defense, decided Wednesday by Judge Royce Lamberth (D.D.C.):
In 2020, Bierly was offered employment with the Air Force Joint Warfare Analysis Center in Dahlgren, Virginia as a Student Trainee. As a condition of his employment, Bierly was required to maintain a Top Secret with Special Compartmented Information (TS/SCI) security clearance, for which he was polygraphed by NSA investigators in February 2020. Starting in June 2020, Bierly began working for the Air Force in a probationary capacity….
In November 2022, the DCSA notified Bierly of its intent to revoke his security clearance pursuant to Security Executive Agent Directive (SEAD) 4, Guideline D, which provides for revocation on the basis of the subject's sexual behavior. DCSA's notification included a Statement of Reasons (SOR) document, explaining the agency's rationale for its preliminary revocation determination. The SOR indicated that, during his polygraph, Bierly admitted to viewing pornographic videos featuring "furries," which may refer either to real people wearing animal costumes or to animated images of anthropomorphic animals.
Bierly confessed that some of the furries in the videos he watched were depicted as minors as young as age 16. The SOR advised that Bierly's history of "engaging in criminal sexual behavior by viewing and masturbating to pornographic images of minors" and intent to continue doing so constituted a "security concern." For his part, Bierly objects to characterizing the videos as child pornography because they featured animated characters rather than actual 16-year-old people….
Bierly's constitutional claims are as follows: Count I claims that viewing animated furry pornography is protected speech under the First Amendment, and that DCSA's suspension of his security clearance therefore infringes this right.
Count II argues that DCSA's suspension of his security clearance abridges Bierly's First Amendment freedom to associate with others who share his political, religious and cultural beliefs. Count III contends that SEAD 4, which allows the DCSA to withhold clearance based on sexual behavior that "demonstrates a lack of judgment or discretion … or may subject the individual to undue influence of coercion, exploitation, or duress," is unconstitutionally overbroad under the First Amendment. Count IV challenges the same language in SEAD 4 as unconstitutionally vague. Count V is a substantive due process claim, arguing that the viewing of legal pornographic material is a protected liberty interest that the DCSA has wrongfully abridged. Count VI is a Fifth Amendment Equal Protection argument, alleging that the defendants have unequally and arbitrarily applied SEAD 4 against Bierly, and that this uneven application fails strict scrutiny….
The court avoided the substantive constitutional questions, in part because federal precedent provides that "the grant of security clearance to a particular employee … is committed by law to the appropriate agency of the Executive branch" and therefore "employment actions based on denial of security clearance are not subject to judicial review ….," especially when it comes to requests for injunctions seeking the grant of a clearance (to oversimplify in some measure).
The court also rejected Bierly's separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. Note that Bierly's Complaint states that, "Mr. Bierly admitted to watching 16 year old Furry pornography when he was 15 years old, and the polygrapher used that age for all subsequent Furry pornography that Mr. Bierly admitted to watching," though that wouldn't affect, I think, the court's analysis.
The government is represented by Assistant U.S. Attorney Jeremy S. Simon.
