Chаrles E. Sisney v. Denny Kaemingk, in his official capacity as the South Dakota Secretary of Corrections; Darrin Young, in his official capacity as the Warden of the South Dakota State Penitentiary; Sharon Reimann, in her official capacity as an SDSP designated Mailroom Officer; Craig Mousel, in his official capacity as an SDSP designated Property Officer
No. 20-2460
United States Court of Appeals for the Eighth Circuit
Submitted: June 17, 2021; Filed: October 15, 2021
National Coalition Against Censorship, Amicus on Behalf of Appellee(s). Appeal from United States District Court for the District of South Dakota - Southern.
Before GRUENDER, BENTON, and STRAS, Circuit Judges.
Charles E. Sisney brought as-applied and facial challenges to the South Dakota State Penitentiary‘s pornography policy (the “Policy“) under the
I.
Sisney is an inmate at the South Dakota State Penitentiary. In 2015, prison officiаls rejected several items in Sisney‘s incoming mail. These items included four issues of a comic-book series entitled Pretty Face; a reprint of the iconic Coppertone advertisement featuring a puppy pulling at a little girl‘s swim bottoms; two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition; a fine-art book entitled Matisse, Picasso and Modern Art in Paris; and nine pictures of Renaissance artwork featuring nudity, including Michelangelo‘s “David” and the Sistine Chapel. Prison officials based their decision to reject these items on the Policy, which prohibits inmates from receiving pornographic material. The Policy defines “pornographic material” as follows:
Includes books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature nudity or “sexually explicit” conduct. Pornographic material may also include books, pamphlets, magazines, periodicals or other publications or material that features, or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit matеrial.
“Nudity” means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed. Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.
“Sexually Explicit” includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation. Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.
After exhausting his administrative remedies, Sisney sued the defendants in federal court, claiming that the Policy was unconstitutionally overbroad on its face and, in any event, unconstitutional as applied to the items enumerated above. Both parties moved fоr summary judgment. The district court held that the Policy was unconstitutionally overbroad on its face and then appeared to adjudicate Sisney‘s as-applied challenges against a prior version of the Policy. See Sisney v. Kaemingk, CIV 15-4069, 2016 WL 5475972 (D.S.D. Sept. 29, 2016), vacated, 886 F.3d 692 (8th Cir. 2018).
On appeal, a panel of this court vacated the district court‘s summary-judgment order and remanded. Sisney v. Kaemingk (Sisney I), 886 F.3d 692, 694 (8th Cir. 2018). We explained that the proper course under Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989), was first to resolve Sisney‘s as-applied challenges against the version of the Policy in effect and then to consider Sisney‘s overbreadth challenge only if at least one of Sisney‘s as-applied challenges failed. Sisney I, 886 F.3d at 698-99.
On remand, the district court rejected Sisney‘s as-applied challenges to the Pretty Face comics and the Coppertone advertisement but sustained Sisney‘s as-applied challenges to the other items. Turning to Sisney‘s overbreadth challenge, the district court concluded that the Policy was overbroad but that it was possible to remedy strikethrough and insertions in underline:
Includes books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature
nudity or“sexually explicit” conduct. Pornographic material may also include books, pamphlets, magazines, periodicals or other publications or material that features,or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material.Featured: is defined as a publication which routinely and regularly featured pornography, or in the case of one-time issues, promoted itself based on pornographic content. The depiction of nudity of minors is prohibited.1“Nudity” means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed. Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.
“Sexually Explicit” includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation. Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of
nudity orsexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.
The Pretty Face comics and the Coppertone advertisement fell within the scope of this hypothetical amended version of the Policy. Therefore, because the district court enjoined enforcement of the Policy only to the extent that it did not overlap with this hypothetical amended version, the district court‘s remedy for the Policy‘s allegеd overbreadth did not affect which of the challenged materials Sisney would be permitted to receive.
The defendants appealed, challenging the district court‘s adverse rulings on Sisney‘s as-applied challenges and the district court‘s conclusion that the Policy was overbroad. The defendants did not appeal the district court‘s remedy for the alleged overbreadth. Nor did Sisney, who did not file a cross-appeal, even though he had urged the district court to enjoin enforcement of the Policy in toto after concluding that it was overbroad.
After filing their notice of appeal, the defendants asked us to stay the district court‘s order. We denied this request. Alleging that the defendants have nevertheless refused to comply with the district court‘s order, Sisney has filed two motions asking us to sanction the defendants for contempt of court.
II.
We review the district court‘s grant of summary judgment de novo. Sisney I, 886 F.3d at 697.2 “When a prison
rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court has articulated a two-step, four-factor test to determine when a regulation thаt impinges on inmates’ constitutional rights is “reasonably related to legitimate penological interests.” Id. The first factor operates as a threshold condition that the regulation must satisfy to pass constitutional muster. See Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998). Assuming the regulation satisfies this threshold requirement, the court must determine the regulation‘s constitutionality by balancing the remaining three factors. See id. at 201-03.
The first factor is that “there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89 (internal quotation marks omitted). When the regulation in question “restrict[s] inmates’
Generally, the prison bears the burden of proving the existence of a “rational connection” between the challenged regulation and a legitimate government interest. See Murchison v. Rogers, 779 F.3d 882, 887-88 (8th Cir. 2015). This does not require proving that “the regulation in fact advances the government interest,” but it
does require proving that the policymaker “might reasonably have thought that it would.” Amatel, 156 F.3d at 199. Unless a rational connection between the regulation and the asserted interest is a matter of “common sense,” id., the prison “must proffer some evidence to support” the existence of such a connection, Shimer v. Washington, 100 F.3d 506, 509-10 (7th Cir. 1996). See also Turner, 482 U.S. at 97-99 (holding a regulation unconstitutional after noting that the prison “pointed to nothing in the record suggesting” the existence of a rational connection between the regulation and the asserted government interest and that “[c]ommon sense likewise suggests that there is no [such] connection“).
The “second factor . . . is whether there are alternative means of exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. The Supreme Court has held that this factor weighs in favor of the constitutionality of a prison‘s regulation of incoming mail if the regulation “permit[s] a broad range of publications to be sent, received, and read.” Thornburgh, 490 U.S. at 417-18.
The “third consideration is the impact [that] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. This factor weighs in favor of the constitutionality of a regulation censoring material that would inhibit some inmates’ rehabilitation and that “would likely be disseminated” throughout the prison. See Dawson, 986 F.2d at 262; Amatel, 156 F.3d at 201 (“Even if pornography could be directed only to those not likely to be adversely affected, it could find its way to others, interfering with their rehabilitation and increasing threats to safety.“).
“Finally, the absence of ready alternatives [to the regulation] is evidence of the reasonableness of a prison regulation.” Turner, 482 U.S. at 90. “By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.” Id. (internal quotation marks omitted).
Here, the defendants do not deny that the
III.
We begin with Sisney‘s as-applied challenges, see Sisney I, 886 F.3d at 698-99, considering each of the contested materials in turn and asking “whether a ban on th[at] particular item[] is reasonably related to a legitimate penological objective,” Murchison, 779 F.3d at 887. Because Sisney did not cross-appeal, we consider only those of Sisney‘s as-apрlied challenges that the district court sustained on summary judgment; namely, those that concerned Thrones of Desire; Pride and Prejudice: The Wild and Wanton Edition; Matisse, Picasso and Modern Art in Paris; and the nine pictures of Renaissance artwork.
A.
We begin with the two erotic novels. In Carpenter v. South Dakota, 536 F.2d 759, 762-63 (8th Cir. 1976), we held that it was “well within the discretion” of prison officials under Procunier v. Martinez, 416 U.S. 396 (1974), overruled by Thornburgh, 490 U.S. 401, to censor material whose “primary purpose” was sexual arousal because such material “would have a detrimental effect upon rehabilitation.” Martinez‘s test was “less deferential” than the test from Turner that replaced it. Thornburgh, 490 U.S. at 409-13. Therefore, Carpenter‘s holding that Martinez permits prison officials to censor material whose primary purpose is sexual arousal implies that Turner too permits prison officials to censor material whose primary purpose is sexual arousal. Furthermore, Thornburgh held that Turner permits prisons to take an “all-or-nothing” approach to censorship, prohibiting books in their
entirety if they contain any censorable content. Id. at 418-19. In conjunction, then, Carpenter and Thornburgh entail that prisons may censor books in their entirety if they contain material whose primary purpose is sexual arousal. Both erotic novels at issue here contain graphic descriptions of sexual acts whose primary purpose is clearly to cause sexual arousal in the reader.3 Therefore, the Policy is constitutiоnal as applied to these books in their entirety.
Furthermore, even if Carpenter and Thornburgh did not control the resolution of Sisney‘s challenges to the Policy as applied to the erotic novels, we would reach the same conclusion by conducting an independent analysis of Turner‘s four factors.
As applied to the erotic novels, the Policy clears Turner‘s threshold requirement. Courts have routinely held that there is a rational connection between censoring pornography and promoting legitimate penological interests. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059-60 (9th Cir. 1999) (en banc); Amatel, 156 F.3d at 196-201. True, many of these cases concern bans on pornographic images. See, e.g., Amatel, 156 F.3d at 194. But see Cline v. Fox, 266 F. Supp. 2d 489, 493-501 (N.D. W. Va. 2003) (rejecting an as-applied challenge to the censorship of a pornographic writing); Snelling v. Riveland, 983 F. Supp. 930, 935-37 (E.D. Wash. 1997), aff‘d, 165 F.3d 917 (9th Cir. 1998) (rejecting a challenge to a ban that
extended to pornographic writings). Nonetheless, common sense confirms that pornographic writings such as the two at issue here can present the same obstacles to legitimate penological interests as pornographic images. See Cline, 266 F. Supp. 2d at 497-98 (finding “a common sense nexus” between prohibiting a book with graphic but exclusively “verbal” descriptions of sexual acts and “lеgitimate penological purposes“). Furthermore, the defendants’ censorship of the erotic novels because of their sexually explicit content “operated in a neutral fashion.” See Turner, 482 U.S. at 90. Prison officials did not censor the books because
Given that Turner‘s threshold requirement is met, we apply Turner‘s remaining three factors. All three weigh in the defendants’ favor. Turner‘s second factor weighs in the defendants’ favor because censoring the erotic novels is consistent with “permit[ting] a broad range of publications to be sent, received, and read.” See Thornburgh, 490 U.S. at 418. Turner‘s third factor weighs in the defendants’ favor because sexually explicit material is likely to find its way through bartering to the prisoner who finds it most sexually stimulating, potentially interfering with rehabilitation. See id.; Dawson, 986 F.2d at 262; Amatel, 156 F.3d at 201. And Turner‘s fourth factor weighs in the dеfendants’ favor because alternatives such as page-by-page censorship and monitored reading rooms are not “obvious, easy alternatives.” See Thornburgh, 490 U.S. at 418-19.
Thus, we conclude that the district court erred in granting summary judgment for Sisney on his claim that the Policy is unconstitutional as applied to Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition. Whether under Carpenter and Thornburgh or under an independent application of Turner, the defendants were within their discretion to censor these books.
B.
We reach the opposite conclusion regarding Sisney‘s challenge to the Policy as applied to Matisse, Picasso and Modern Art in Paris and the nine pictures of Renaissance artwork. As the district court observed, Matisse, Picasso and Modern Art in Paris “is simply an art book.” Although a few of the featured works include nudity, the defendants have identified none that even arguably depicts its subject “lewdly or as engaged in any actual or simulated sexual acts.” The same is true of Michelangelo‘s “David,” the Sistine Chapel, and the other works of art represented in the nine pictures that the defendants withheld from Sisney. Common sense does not suggest, and the defendants have offered no evidence to prove, a rational connection between banning pictures of artwork such as Michelangelo‘s “David” and legitimate government interests such as security and rehabilitation. See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1080 (W.D. Wis. 2000) (denying prison officials’ motion for summary judgment in part because they “failed to submit any credible evidence” of a rational connection between banning “great works of art” and promoting rehabilitation, “and common sense suggests none“). Therefore, the defendants’ censorship of Matisse, Picasso and Modern Art in Paris and of the nine pictures of Renaissance artwork fails Turner‘s threshold requirement. The district court properly granted summary judgment for Sisney on his claim that the Policy is unconstitutional as applied to these items.
IV.
Having resolved Sisney‘s as-applied challenges to the Policy, we turn to his facial challenge based on the claim that the Policy is overbroad.
A.
We begin by addressing the threshold question of subject-matter jurisdiction. Although neither the district court nor the parties raised this issue, “[w]e
district court.” See Thomas v. United Steelworkers Loc. 1938, 743 F.3d 1134, 1138-39 (8th Cir. 2014).
The overbreadth doctrine “allow[s] litigants whose own speech could constitutionally be regulated to challengе overly broad regulations which affect them.” Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006). “Under no circumstances, however, does the overbreadth doctrine relieve a plaintiff of [his] burden to show constitutional standing.” Id. Nor does it permit a federal court to adjudicate an issue that has become moot. See Stephenson v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1311-12 (8th Cir. 1997) (dismissing an overbreadth challenge as moot). Both rules are jurisdictional. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997). In fact, subject to caveats inapplicable here, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-91 (2000), the difference between standing and mootness doctrines is merely one of “time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness),” Arizonans for Official English, 520 U.S. at 68 n.22. This means, among other things, that a federal court lacks subject-matter jurisdiction to rule on an overbreadth challenge unless it is true right up until the court decides the question that a favorable decision would likely redress the plaintiff‘s injury by lifting the restriction on his speech. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that the likelihood “that the injury will be redressed by a favorable decision” is a necessary element of standing (internal quotation marks omitted)); Advantage Media, 456 F.3d at 801-02 (holding that a plaintiff bringing an overbreadth challenge lacked standing because a favorable decision would not allow the plaintiff to engage in the speech at issue).
A corollary of this conclusion is that a federal court lacks subject-matter jurisdiction to rule on an overbreadth challenge if it is possible to remedy the alleged overbreadth without enjoining enforcement of those parts of the law that apply to the plaintiff‘s speech. Generally, when confronting a constitutional problem in a law, courts should “limit the solution” by enjoining enforcement of “any problematic
portions while leaving the remainder intact.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks omitted); see also New York v. Ferber, 458 U.S. 747, 769 n.24 (1982) (“[I]f [an overbroad statute] is severable, only the unconstitutional portion is to be invalidated.“). Sometimes a limited solution is not possible because it would “entail quintessentially legislative work” (in the case of a statute) or executive work (in the case of a regulation) that the Constitution does not empower federal courts to undertake. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329 (2006); Free Enter. Fund, 561 U.S. at 509-10 (holding that to “blue-pencil” a statute would be to assume an “editorial freedom [that] belongs to the Legislature“). When that is the case, the court has no choice but to enjoin enforcement of the law in toto. E.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812 (9th Cir. 2013) (per curiam). But when a more limited “judicial remedy” is available, the court should adopt it. See Ayotte, 546 U.S. at 329.
Here, the district court construed Sisney‘s pro se complaint as bringing a two-part overbreadth challenge alleging that the Policy‘s prohibition on nudity and the Policy‘s prohibition on sexually explicit content were both overbroad. By the time the district court considered this challenge on remand, it had already sustained all of Sisney‘s as-applied challenges except those that concerned the Coppertone advertisement and the Pretty Face comics. Sisney‘s only remaining injuries were thus being deprived of these two items. The district court then concluded that a limited judicial remedy for the alleged overbreadth in the prohibition on nudity was available that would not bar enforcement of the Policy against either item. Having reached this conclusion, the district court should have dismissed as moot Sisney‘s claim that the prohibition on nudity was overbroad on the ground that a favorable decision on this claim would not have redressed either of Sisney‘s remaining injuries. Similarly, the district court concluded that a limited judicial remedy for the alleged overbreadth in the рrohibition on sexually explicit content was available that would not bar enforcement of the Policy against either the Coppertone advertisement or the Pretty Face comics. Again, having reached this conclusion, the district court should have dismissed as moot Sisney‘s claim that the prohibition on sexually explicit content was
court should have dismissed as moot Sisney‘s overbreadth challenge in its entirety without reaching the merits.
Typically, when a district court enters judgment on a claim that it should have dismissed as moot, we vacate the judgment and remand with instructions to dismiss the claim for lack of subject-matter jurisdiction. See, e.g., Brazil v. Ark. Dep‘t of Human Servs., 892 F.3d 957, 960-61 (8th Cir. 2018). In this case, however, the matter is not so simple. What mooted Sisney‘s overbreadth challenge was the combination of (1) the district court‘s rulings on his as-applied challenges, which left him with only two remaining injuries, and (2) the district court‘s choice of remedy, which redressed neither one. Because neither party appealed the district court‘s choice of remedy, we do not review it. See United States v. Sineneng-Smith, 590 U.S. ---, 140 S. Ct. 1575, 1579 (2020) (explaining that courts should “normally decide only questions presented by the parties” instead of “sally[ing] forth . . . looking for wrongs to right“); El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 478-79 (1999) (holding that the appellate court erred in addressing parts of the district court‘s orders that the parties did not appeal); J.B. Hunt v. BNSF Ry. Co., 9 F.4th 663, 670 (8th Cir. 2021) (“Even assuming the district court erred . . . , it would be inappropriate for us to [correct the error] because neither party appealed the issue.“). But the defendants did appeal the district court‘s decision to sustain all of Sisney‘s as-applied challenges other than those that concerned the Coppertone advertisement and the Pretty Face comics. And, after reviewing this decision, we concluded that the district court erred with respect to the two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition. See supra Section III.A. Before remanding with instructions to dismiss Sisney‘s overbreadth challenge as moot, then, we must determine whether it remains true that the challenge is moot now that two additional injuries have survived resolution of Sisney‘s as-applied challenges.
With respect to Sisney‘s claim that the prohibition on nudity is overbroad, the answer is “yes.” A favorable decision on this claim would trigger the district court‘s remedy for the alleged overbreadth in the prohibition on nudity—again, not because
we would affirm this remedy were we to review it de novo but because neither party appealed it. The district court‘s remedy was to enjoin the enforcement of the prohibition on nudity except against nudity involving minors. But the defendants censored the erotic novels under the Policy‘s prohibition on sexually explicit content. Because the district court‘s remedy for the alleged overbreadth in the prohibition on nudity did not affect the prohibition on sexually explicit content, it would not bar enforcement of the Policy against either book. Thus, a favorable decision on Sisney‘s claim that the prohibition on nudity is overbroad would not redress any of Sisney‘s remaining injuries. Sisney‘s claim that the prohibition on nudity is overbroad is therefore moot.5
explicit content—once again, not because we would affirm this remedy on de novo review but because neither party appealed it. The district court‘s remedy involved enjoining the enforcement of the prohibition on sexually explicit content against any nonperiodical publication that does not “promote[] itself based on pornographic content.” Unfortunately, the term “based on” is ambiguous. On one interpretation, a publication “promote[s] itself based on pornographic content” if its promotional materials allude to the fact that the publication contains pornographic content. On another interpretation, a publication “promote[s] itself based on pornographiс content” only if its promotional materials themselves contain pornographic content. On the first interpretation, the district court‘s remedy would not bar enforcement of the Policy against Pride and Prejudice: The Wild and Wanton Edition, whose Amazon.com advertisement broadcasts the fact that it contains pornographic content, and it likely also would not bar enforcement of the Policy against Thrones of Desire, whose book cover seeks to entice the reader with a picture of a scantily clad woman and a promise of “erotic tales” within. On the second interpretation, however, the district court‘s remedy likely would bar enforcement of the Policy against both books because there is no evidence of pornographic content in the books’ promotional materials themselves. Given the district court‘s conclusion that the
Thus, we will remand with instructions to dismiss as moot Sisney‘s claim that the prohibition on nudity is overbroad. But Sisney‘s claim that the prohibition on sexually explicit content is overbroad remains a live case or controversy thanks to our reversal of the district court‘s ruling on his as-applied challenges regarding the erotic novels. Consequently, were we to vacate and remand on this claim, we would need to instruct the district court to reach the
would be a futile exercise because the district court has already indicated that it agrees with Sisney that the prohibition on sexually explicit content is overbroad. Accordingly, rather than necessitate a third appeal in this case, we settle the matter here. See Crown Cork & Seal Co. v. Int‘l Ass‘n of Machinists & Aerospace Workers, 501 F.3d 912, 916 (8th Cir. 2007) (deciding a question on appeal rather than remanding because “remand would be inefficient and unnecessary“).
B.
Unlike a typical facial challenge, which requires showing that “no set of circumstances exists under which” the law could be constitutionally applied, a
We conclude that it does not. We recognize that the Fifth Circuit has suggested otherwise, attributing to the U.S. Supreme Court a “decision not to rely upon the canon of constitutional avoidance in the overbreadth context.” See Serafine
v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016) (internal quotation marks omitted) (citing Stevens, 559 U.S. at 481); cf. Turchik v. United States, 561 F.2d 719, 723-24 (8th Cir. 1977) (stating in dicta that “the preferred position of the
Reading the Policy in light of the doctrine of constitutional avoidance, we conclude that Sisney failed to show that the Policy‘s prohibition on sexually explicit
content is “substantially overbroad.” See Stevens, 559 U.S. at 482. Sisney‘s most compelling example of allegedly sexually explicit content protected by the
To be sure, even construed narrowly, the Policy‘s prohibition of sexually explicit content extends to some literary works that many hold in high esteem. In most cases, however, censoring these works will pass constitutional muster for the same reasons that censoring Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition did. We are unpersuaded that consistent application of the prohibition as we have construed it will limit inmates’ access to literature so severely that the defendants can no longer be said to “permit a broad range of publications to be sent, received, and read.” See Thornburgh, 490 U.S. at 418.
It is true, as Sisney points out, that the defendants have suggested that they could enforce the Policy‘s prohibition on sexually explicit content against the Bible if they chose to do so. But althоugh we defer to a state agency‘s interpretation of its own regulation “if the meaning of the words used is in doubt,” Smith v. Sorensen, 748 F.2d 427, 432 (8th Cir. 1984) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)), we do so only after applying canons of construction such
as the doctrine of constitutional avoidance,
We conclude that although resolution of Sisney‘s as-applied challenges does not moot his claim that the Policy‘s prohibition on sexually explicit content is overbroad, this claim fails on the merits.
V.
Finally, we address Sisney‘s motions for sanctions. The
“There are two kinds of civil contempt penalties a court can impose.” Klett v. Pim, 965 F.2d 587, 590 (8th Cir. 1992). “The first is a coercive penalty . . . designed to force the offending party to comply with the court‘s order.” Id. The second is compensation to the movant for damages incurred “as a result of the offending party‘s contempt.” Id. “A court cannot impose a coercive civil contempt sanction
if the underlying [order] is no longer in effect.” Id. In contrast, a contempt sanction compensating the movant for damages incurred as a result of the offending party‘s noncompliance while the order was in effect remains appropriate even after the order is no longer in effect, unless the order was “vacated because it was issued erroneously.” Id. Under no circumstances may a federal court impose any kind of sanction for contempt of another court‘s order. Id. at 590-91 (citing
Here, Sisney seeks both coercive and compensatory sanctions for the defendants’ alleged refusal to comply with our order denying their motion for a stay of the district court‘s injunction pending this appeal.6 Now that we have resolved the appeal, this order is moot and thus no longer in effect. See In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (per curiam) (dismissing a motion for a stay pending appeal as moot after resolving the appeal); Klett, 965 F.2d at 590 (treating an order as no longer in effect for purposes of sanctions once it has become moot). Therefore, we must deny Sisney‘s request for coercive sanctions. Of course, Sisney remains free
Notes
The record also includes an excerpt from Thrones of Desire, which we do not reprint here, that describes in detail a series of masturbations.[W]e‘ve never been able to see Elizabeth and Fitzwilliam in flagrante delicto—until now. In this deliciously naughty updating of the beloved classic, you can peek behind the closed doors of Pemberley‘s sexiest master bedroom—and revel in the sexual delights of your favorite couple. From first kiss to orgasmic finish, this book is every Austen fan‘s dream come true—the story you love, with the heat turned up to high. It will come as no surprise that the dashing Mr. Darcy is as passionate and intense with his knickers off as he is with them on.