According to Bierly v. Dep’t of Defense, as ruled by Judge Royce Lamberth (D.D.C.) on Wednesday:
In 2020, Bierly accepted a position as a Student Trainee at the Air Force Joint Warfare Analysis Center in Dahlgren, Virginia. 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 underwent a polygraph examination conducted by NSA investigators in February 2020. Bierly began his probationary work for the Air Force in June 2020âŠ
In November 2022, the Defense Counterintelligence and Security Agency (DCSA) informed Bierly of its intention to revoke his security clearance in accordance with Security Executive Agent Directive (SEAD) 4, Guideline D, which allows for revocation based on the individual’s sexual conduct. The notification from DCSA included a Statement of Reasons (SOR) document outlining the agency’s justification for the preliminary revocation decision. The SOR revealed that during the polygraph examination, Bierly admitted to watching pornographic videos featuring “furries,” which could either be real individuals in animal costumes or animated depictions of anthropomorphic animals.
Bierly acknowledged that some of the furry characters in the videos he viewed were portrayed as minors as young as 16 years old. The SOR stated that Bierly’s involvement in “criminal sexual behavior by watching and engaging in sexual activity to pornographic images of minors” and his intent to continue doing so were deemed a “security concern.” However, Bierly disputes the characterization of the videos as child pornography since they featured animated characters and not actual 16-year-old individualsâŠ
Bierly’s constitutional claims are as follows: Count I asserts that watching animated furry pornography is protected speech under the First Amendment, and that DCSA’s suspension of his security clearance violates this right.
Count II argues that DCSA’s suspension of his security clearance infringes on Bierly’s First Amendment right to associate with others who share his political, religious, and cultural beliefs. Count III contends that SEAD 4, which permits DCSA to withhold clearance based on sexual behavior indicating a lack of judgment or discretion, or potential vulnerability to coercion, exploitation, or duress, is overly broad in violation of the First Amendment. Count IV challenges the same language in SEAD 4 as unconstitutionally vague. Count V presents a substantive due process claim, asserting that viewing legal pornographic material is a protected liberty interest that DCSA has unjustly restricted. Count VI raises a Fifth Amendment Equal Protection argument, alleging that the defendants have applied SEAD 4 against Bierly in an unequal and arbitrary manner, failing strict scrutinyâŠ
The court refrained from delving into the substantive constitutional issues, citing federal precedent that “the granting of security clearance to a specific employee is entrusted by law to the appropriate agency of the Executive branch” and therefore “employment actions based on security clearance denial are not subject to judicial reviewâŠ,” particularly concerning requests for injunctions seeking clearance approval (to simplify somewhat).
The court also dismissed Bierly’s separate statutory claims under the Administrative Procedure Act, Freedom of Information Act, and Privacy Act. It is worth noting that Bierly’s Complaint states, “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,” although this detail likely did not impact the court’s analysis.
Assistant U.S. Attorney Jeremy S. Simon represents the government in this case.
