15 F.4th 1181
8th Cir.2021Background
- Plaintiff Charles Sisney, an inmate, had incoming mail rejected under the South Dakota State Penitentiary’s 2014 "pornography" Policy; rejected items included two erotic novels (Thrones of Desire; Pride and Prejudice: The Wild and Wanton Edition), an art book (Matisse, Picasso and Modern Art in Paris), nine Renaissance art images (e.g., Michelangelo’s David, Sistine Chapel), four Pretty Face comics, and a Coppertone ad.
- The Policy defined "pornographic material" to include publications featuring nudity or "sexually explicit" content and broadly defined nudity and sexually explicit depictions.
- Sisney sued, bringing as-applied and facial (overbreadth) First Amendment challenges; the district court granted and denied summary judgment in part and drafted a narrowed hypothetical version of the Policy rather than enjoining it in toto.
- This Court in Sisney I vacated and remanded, instructing the district court to resolve as-applied claims first; on remand the district court sustained Sisney’s as-applied wins for the art book and Renaissance images but not for the Pretty Face comics or Coppertone ad, and again found portions of the Policy overbroad, issuing a limited remedy.
- Defendants appealed the adverse as-applied rulings and the overbreadth finding (they did not appeal the district court’s remedy); this Court affirmed in part, reversed in part, vacated the nudity-overbreadth ruling for lack of jurisdiction, and rejected the sexually-explicit-overbreadth claim on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) As-applied challenge to erotic novels (Thrones; Pride & Prejudice) | Sisney: novels are protected expression; ban is not reasonably related to penological interests | Defendants: books are pornographic writings designed to arouse; censorship reasonably furthers rehabilitation/security; prison may ban whole works containing sexual content | Court: Reversed district court; defendants may censor these erotic novels (Carpenter/Turner/Thornburgh rationale) |
| 2) As-applied challenge to art book and Renaissance images | Sisney: classical art with nudity is protected and not sexually explicit; no rational connection to penological goals | Defendants: images contain nudity and fall within policy; censorship serves penological interests | Held for Sisney: defendants failed Turner threshold; ban on these art works unconstitutional as applied |
| 3) Facial overbreadth — Policy's prohibition on nudity | Sisney: prohibition is overbroad as to protected works (e.g., classical art, literature) | Defendants: policy lawful; district court’s limited remedy cures overbreadth | Court: Claim moot as to Sisney because district court’s unappealed remedy (narrowing) would not redress his remaining injuries; dismiss for lack of jurisdiction |
| 4) Facial overbreadth — Policy's prohibition on sexually explicit content | Sisney: prohibition reaches substantial protected expression (books, literary works) | Defendants: definition can be construed to cover only genuinely graphic sexual depictions; prison interest valid | Court: Interpreting Policy narrowly under constitutional-avoidance, Sisney failed to show substantial overbreadth; claim rejected on the merits |
| 5) Motions for contempt/sanctions for alleged noncompliance with stay denial | Sisney: defendants refused to comply with appellate denial of stay and district injunctions | Defendants: reasonable doubt about noncompliance; took steps once informed and implemented procedures | Court: Coercive sanctions denied as order moot; compensatory sanctions denied for lack of absence of fair doubt — Sisney may pursue sanctions in district court for remaining injunction parts |
Key Cases Cited
- Turner v. Safley, 482 U.S. 78 (prison regulation valid if reasonably related to legitimate penological interests)
- Thornburgh v. Abbott, 490 U.S. 401 (prison may take all-or-nothing approach to publications; First Amendment review of prison mail)
- Board of Trustees v. Fox, 492 U.S. 469 (sequencing overbreadth and as-applied claims)
- Carpenter v. South Dakota, 536 F.2d 759 (8th Cir. 1976) (prison officials may censor material whose primary purpose is sexual arousal)
- United States v. Stevens, 559 U.S. 460 (overbreadth standard: substantial number of unconstitutional applications)
- Osborne v. Ohio, 495 U.S. 103 (state courts may narrow statutes to avoid First Amendment overbreadth problems)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires redressability)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (standing and mootness doctrines)
- Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006) (overbreadth plaintiff still bears standing burden)
- Taggart v. Lorenzen, 139 S. Ct. 1795 (contempt: civil contempt not appropriate where fair ground of doubt exists)
- Free Enterprise Fund v. PCAOB, 561 U.S. 477 (prefer narrower judicial remedies where possible)