Leonard Gregory, Dee J. Radeke, Sean O’Geary, Jerry Newell, John Hrbek, Chad Welsh, Clarence Fenton, Jack Hays, and Joseph Lawrence, Appellants, vs. State of Iowa, Iowa State Legislature, and Iowa Department of Corrections, Appellees.
No. 24–0885
In the Iowa Supreme Court
Submitted March 24, 2026—Filed June 26, 2026
Incarcerated individuals appeal the denial of their constitutional challenges to Iowa Department of Corrections regulations implementing
Oxley, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, and McDermott, JJ., joined. McDonald, J., filed an opinion concurring in the judgment. May, J., filed an opinion concurring in the judgment.
Theodore T. Appel (argued) of Bradley & Riley PC, Cedar Rapids, and Brent Appel, Ackworth, for appellants Leonard Gregory, Dee J. Radeke, Sean O’Geary, Jerry Newell, John Hrbek, Chad Welsh, Clarence Fenton, and Joseph Lawrence.
Jack Hays, Newton, pro se appellant.
Brenna Bird, Attorney General, Eric Wessan (argued), Solicitor General, Patrick C. Valencia, Deputy Solicitor General, and Breanne A. Stoltze, Assistant
W. Charles Smithson, Des Moines, for appellee Iowa State Legislature.
Peter E. Larsen of Larsen Law Firm, PLLC, Waterloo, Leah Patton of Patton Legal Services, LLC, Ames, and Rita Bettis Austen of ACLU of Iowa, Des Moines, for amicus curiae American Civil Liberties Union of Iowa.
This case centers on the legal standard for analyzing burdens on incarcerated individuals’ free speech rights. Imprisonment does not strip a person of all constitutional rights, but the realities of incarceration require that “the Constitution sometimes permit[] greater restriction of such rights in a prison than it would allow elsewhere.” Beard v. Banks, 548 U.S. 521, 528 (2006); accord Risdal v. State, 573 N.W.2d 261, 263 (Iowa 1998). We must decide whether or how much inmates’ right to free speech is circumscribed in the prison context.
Several inmates challenge
I. Factual Background and Proceedings.
Twelve individuals incarcerated in institutions around the State of Iowa challenged the constitutionality of
A. Statutory Framework. Before the amendment, the Iowa Code established reading rooms in Iowa’s correctional facilities. See Iowa Code
The director shall, as necessary, provide suitable space for reading material for inmates. For purposes of this section, “reading material” does not include material depicting or describing the genitals, sex acts, masturbation, excretory functions, or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for inmates, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value. The space shall be located so that any visitors, other than those authorized pursuant to section 904.512, shall not be able to view the space or the materials located within that space.
The revised statute that the inmates now challenge provides:
Funds appropriated to the department or other funds made available to the [Department of Corrections (DOC)] shall not be used to distribute or make available any commercially published information or material to an inmate when such information or material is sexually explicit or features nudity.
With the amendment, the general assembly tasked the DOC with “adopt[ing] rules pursuant to chapter 17A to administer” the amended statute.
“A publication may be denied when the publication presents a danger to the security or order of an institution or is inconsistent with rehabilitation goals.”
The DOC also amended its internal policies related to incoming publications, which are incorporated into the regulations. See
When an inmate requests a publication, the request is reviewed by officials at the inmate’s institution. If the publication might violate DOC policy, the publication “shall be sent to the Publication Review Committee,” which consists of three members. The committee determines if the publication complies with DOC policy and then issues a “Decision Memo” to ensure uniformity across institutions. Inmates can appeal the denial of a requested publication.
At the time this lawsuit was initiated, the policy prohibited inmates from receiving publications that “compromise the security of the institution.” It also specifically provided: “Pursuant to Iowa Code 904.310A . . . lewd exhibition of genitals or other sexually explicit materials will be denied.” The policy was
B. Plaintiffs’ Lawsuit. The plaintiffs filed their petition in September 2018, alleging that section 904.310A violated several of their constitutional rights under both the United States and Iowa Constitutions. Eight incarcerated individuals are represented by counsel in this appeal: Leonard Gregory, Dee J. Radeke, Sean O’Geary, Jerry Newell, John Hrbek, Chad Welsh, Clarence Fenton, and Joseph Lawrence. They are inmates at the Anamosa State Penitentiary. Jack Hays, an inmate at the Newton Correctional Facility, proceeds pro se. Plaintiffs represented themselves—quite ably—throughout the lengthy district court proceedings.
In April 2019, the district court granted the plaintiffs’ request for a temporary injunction in part because it was concerned that the breadth of the statute implicated the inmates’ First Amendment rights. While it denied injunctive relief as to the State’s ban of sexually explicit content, the court ordered that the State “shall not prevent the distribution of materials to the [p]laintiffs and other inmates similarly situated that features mere, non-sexually explicit, nudity.”
Nearly two years later in March 2021, the district court ruled on the parties’ competing motions for summary judgment. It denied the plaintiffs’ motion in its entirety. But it granted the State’s motion in part, dismissing the plaintiffs’ claims that section 904.310A violated their constitutional rights under theories of procedural due process, cruel and unusual punishment, ex post facto laws, and the unenumerated rights clause.
Still, the district court imposed parameters on the remaining claims. It held that the plaintiffs only challenged section 904.310A’s ban on nudity and that they waived their challenge to the statute’s ban on sexually explicit content. The district court also held that the challenges were limited to only printed materials because the plaintiffs failed to separately challenge the State’s limitation of television shows and movies that could be viewed. One inmate, Jack Hays, filed a motion to reconsider this limitation shortly before the court’s order was appealed. The appeal stayed the district court proceedings, so the district court never ruled on Hays’s motion for reconsideration regarding whether the
The State sought an interlocutory appeal of the district court’s summary judgment ruling. We granted its request and scheduled briefing, prompting the district court to enter a stay in the proceedings at the district court. The State, however, voluntarily dismissed its interlocutory appeal. We issued procedendo in August 2022 and returned the case to the district court.
C. Bench Trial. The district court set trial for February 19, 2024, and it held a four-day bench trial. The inmates proceeded pro se and testified in the narrative about why
The plaintiffs claimed that the scope of the materials being banned was broad, including content for an art class at Grinnell College that depicted pictures of sculptures and paintings. They also argued that Prison Rape Elimination Act reports since 2018 showed a lack of sexual violence among inmates; that the statute regulated more than the State’s interest in rehabilitation of sex offenders because it applied throughout the state rather than just in the Newton Correctional Facility where the sex offender treatment program (SOTP) is located; that the banned materials were necessary for them to meet their sexual needs, which should be preferred over “grabbing a female staff member”; and that other regulatory options to meet the State’s interest were
Both parties testified about an Iowa Court of Appeals case, Sink v. State, No. 15–0264, 2016 WL 5930337 (Iowa Ct. App. Oct. 12, 2016), involving a correctional officer’s sexual-harassment claim against the DOC based on inmates’ access to sexually explicit materials. Plaintiff Hays testified that he was familiar with Sink and that he personally observed some of the events that gave rise to her lawsuit. The facts in Sink illustrate the difficulty that prison administrators and correctional officers face in maintaining order in correctional facilities:
Sink was assigned to the Clinical Care Unit (CCU), in which inmates with mental illness and/or severe behavioral problems were housed. Many of the inmates she supervised were sex offenders. The record makes clear that working in the CCU at ISP is a demanding job. Inmates engage in public masturbation and intercourse. Inmates throw feces, urine, and blood at correctional officers. Correctional officers are exposed to possible assaultive behavior.
. . . .
. . . Sink observed a movie on the common CCU television depicting graphic sexual conduct. Several of the inmates, perhaps incited by the programming, began to make lewd comments directed towards her. Sink turned off the television and reported what had happened to her supervisor. The movie was not shown again. However, other movies Sink found objectionable were subsequently shown. Over the years, Sink would often report questionable content to her supervisor and attempt to bring up the subject at weekly steering committee meetings. She was finally told by the warden it was a “dead issue.”
Id. at *1. The jury entered a defense verdict for the State, but the court of appeals reversed it on a bad jury instruction and sent it back for a new trial, id. at *1, *6, where a different jury awarded Sink $2 million in damages, Sink v. State, No. LACL134016, 2018 WL 1461391, at *1 (Iowa Dist. Ct. Mar. 7, 2018).
The State presented three witnesses at trial: Rebecca Bowker, Nicholas Lamb, and Dr. Anthony Tatman. Bowker was a DOC executive officer and served on the State’s publication review committee. She testified that the committee’s practices involved applying neutral standards that resulted in inmates being allowed to possess “images of women in bikinis,” “women in lingerie,” and a “medical journal of nude genitalia” as long as it was not of a child. But she testified that the committee would deny publications with pictures of a woman bending over in a way that would reveal her genital area, even if she was clothed, as being lewd.
Lamb served as deputy director of institutional operations and was a former prison warden in Illinois. He testified that the DOC holds sex offenders in all of its prisons. He also testified that “porn” is traded on a regular basis, and there was no feasible way to prevent non–sex-offenders from trading the materials with sex offenders. He testified that, in his general prison administration experience outside of Iowa, offenders “caught with
Dr. Tatman works as a DOC psychologist who oversees the SOTP for the Fifth Judicial District while sex offenders are on probation, parole, or work release. He does not work with sex offenders while they are incarcerated. But Dr. Tatman is familiar with the DOC’s SOTP administered at the Newton institution because his program continues the treatment for DOC sex offenders when they transition from prison to parole.
Dr. Tatman was disclosed as a nonretained expert sixty days before trial, which the State now concedes was at least thirty days late. See
Dr. Tatman testified that allowing the sex offenders in his program or the Newton SOTP to have access to pornography, including nude materials, negatively impacts their rehabilitation because the materials function like an addictive substance that “fuel[s] possible deviant fires” and hinders treatment. He also testified that pornography—which he defined as including both sexually explicit content and nudity—was problematic for the sex offenders that he worked with after they had been released from incarceration. While academic
D. The District Court’s Judgment. The district court issued a thorough thirty-eight-page opinion following the bench trial. It concluded that the regulatory ban did not violate the plaintiffs’ rights to free speech, equal protection, or due process, and that the regulation was not void for vagueness or overbreadth.
The district court applied the four-factor test established by Turner to the plaintiffs’ constitutional free speech claims under both the United States and the Iowa Constitutions. It rejected the plaintiffs’ argument that the Iowa Constitution provided greater free speech protections than the First Amendment. The district court recognized that the statute, regulations, and DOC policies now in place “are much more restrictive [than the prior policies] because the reading rooms were closed and sexually explicit materials and materials with nudity (subject to the temporary injunction) are now barred from the prison.” Nonetheless, the district court followed the lead of federal courts, the “vast majority” of which had rejected free speech claims by federal inmates challenging similar bans under the Ensign Amendment.
The district court found that Dr. Tatman’s testimony did not support the State’s argument that the ban was rationally related to the rehabilitation of inmates—with the exception of the Newton prison—because the DOC does not provide rehabilitative sex offender treatment outside of Newton. It nonetheless found that “there may be some ancillary rehabilitation benefits to barring
The district court did find that the record supported the State’s justification that “inmate and staff safety may be impacted by allowing materials containing nudity into the inmate population.” Recognizing that some studies showed the opposite, the district court nonetheless credited Dr. Tatman’s testimony about other studies that suggest a link between materials containing nudity and prison violence because “a rational legislature and DOC could find the studies cited by Dr. Tatman to be more persuasive.” The district court also relied on Lamb’s testimony about specific instances of inmate assaults or harassment of female staff over pornography. It concluded that Lamb’s testimony corroborated Dr. Tatman’s testimony, even though Lamb discussed events that occurred at prisons outside of Iowa and his definition of pornography was broader than the nude material at issue here.
After the State satisfied the threshold question of whether there was a rational connection between the regulations and the State’s interest, the district court also found that the second, third, and fourth Turner factors favored the State: (2) the regulations draw a line only at sexually explicit and nude materials,
The district court rejected Hays’s challenge to the ban on television shows and movies during trial. It relied on an earlier ruling by the motion judge, which concluded that the definition of commercially published information in
The plaintiffs appealed, and we retained the case. We sought pro bono representation to handle the appeal, and former Justice Brent Appel and his son, Theodore Appel, answered the call. We express our appreciation for the exemplary representation they provided to their clients. Plaintiff Hays continued to represent himself on appeal, filing a separate brief from the remaining plaintiffs. The represented plaintiffs’ appeal challenges only the free speech ruling. Hays’s appellate brief largely tracks with the represented parties’ appeal, but he also raises additional issues that we address only as to him.
II. Analysis.
The primary issue on appeal is determining the proper legal standard for the inmates’ challenge to section 904.310A. Before that, however, our analysis begins by explaining why Dr. Tatman’s testimony was properly admitted at trial.
A. Admission of Dr. Tatman’s Testimony. The State disclosed Dr. Tatman, a clinical services director and psychologist employed by the DOC, as a nonretained expert witness on December 21, 2023—sixty days before the February 19, 2024 trial. The plaintiffs objected, seeking to strike the designation as untimely and challenging Dr. Tatman’s qualifications. The district court agreed that the designation was untimely by at least thirty days, see
It is undisputed that the State was untimely in disclosing Dr. Tatman as an expert witness. The State contends that its disclosure was only thirty days late, relying on the ninety-day deadline required by
7. EXPERT WITNESS.
a. A party who intends to call an expert witness, including rebuttal expert witnesses, shall certify to the Court and all other parties the expert’s name, subject matter of expertise and qualifications, within the following time period, unless the Iowa Code requires an earlier designation date (See, e.g.,
Iowa Code Section 668.11 ). The expert witness’s report of opinions is due on the date of designation.b. :
1) Plaintiff: September 22, 2020.
2) Defendant/Third-Party Plaintiff: October 22, 2020.
3) Third-Party Defendant/Other/Rebuttal: November 22, 2020.
c. This section does not apply to Court-appointed experts.
The State counters that the scheduling order applied only to retained experts, who are required to issue a report. Nonretained experts are not required to issue reports, see
The district court agreed with the State and applied the ninety-day deadline under
We review the interpretation of rules of civil procedure like
First, we agree with the district court that
Next, in considering whether the district court abused its discretion in allowing the State to present its untimely expert, we examine four factors: “(1) the party’s reasons for not providing the challenged evidence during discovery; (2) the importance of the evidence; (3) the time needed for the other side to prepare to meet the evidence; and (4) the propriety of granting a continuance.” Lawson v. Kurtzhals, 792 N.W.2d 251, 259 (Iowa 2010) (quoting 27 C.J.S. Discovery § 102, at 169 (2009)).
The first two factors cut in favor of the challengers’ argument for exclusion. The district court correctly identified that the State had no good reason for the late designation. The State simply erred in believing that the
The third and fourth factors, however, favor the State. The challengers did not need additional time to prepare for expert testimony because they were notified about the possibility of such testimony (although from a differently identified witness) as early as 2019. They were also reminded of the State’s possible expert testimony in the court’s summary judgment ruling. The State provided ample information about Dr. Tatman along with its disclosure, and the court offered to “leave the record open to allow additional time to admit the testimony of a rebuttal expert” for the challengers, but they did not exercise that option. Lastly, for the fourth factor, a continuance was disfavored to give the challengers more time to prepare because the case had already been pending for five and a half years when the district court ruled on the motion to exclude Dr. Tatman.
In sum, it was not clearly untenable for the court to allow Dr. Tatman to testify. As the district court noted, both the State and the challengers raised “valid points.” Although the district court may have been justified had it chosen to exclude Dr. Tatman as a witness, it did not abuse its discretion in deciding not to do so. Our caselaw is “clear that we are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area.” Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999) (en banc) (quoting Mensink v. Am. Grain & Related Indus., 564 N.W.2d 376, 380 (Iowa 1997)). “Exclusion [of
B. Inmates’ Rights Under the United States Constitution. Plaintiffs assert that
But the plaintiffs’ imprisonment and the statute‘s implementing regulations change the content-neutrality calculus. The regulations temper section 904.310A‘s outright ban by requiring the DOC to provide “access to publications when doing so is consistent with institutional goals of maintaining internal order, safety, security, and rehabilitation.”
The regulations also provide a review mechanism for inmates to seek access to publications not included on the DOC‘s list of approved publications. See
Still, “[s]exual expression which is indecent but not obscene is protected by the First Amendment.” Reno v. ACLU, 521 U.S. 844, 874 (1997) (alteration in original) (quoting Sable Commc‘ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)). The First Amendment protects adults’ right to access sexually explicit content. Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 466 (2025) (recognizing “all agree” that adults “have a First Amendment right to access at least some” sexually explicit content on pornography websites).
“This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). The right to receive information necessarily follows from the First Amendment‘s freedom of speech:
This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender‘s First Amendment right to send them: “The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it.” Martin v. Struthers, 319 U.S. 141, 143 . . . (1943) (citation omitted). “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” Lamont v. Postmaster General, 381 U.S. 301, 308 . . . (1965) (BRENNAN, J., concurring).
More importantly, the right to receive ideas is a necessary predicate to the recipient‘s meaningful exercise of his own rights of speech, press, and political freedom. [James] Madison admonished us:
“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a
Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” 9 Writings of James Madison 103 (G. Hunt ed. 1910).
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion) (first omission in original); accord Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (“[Broadcasting companies] have a First Amendment right to receive letters from inmates criticizing jail officials and reporting on conditions.“).
“Imprisonment does not strip inmates of all constitutional rights—including free speech rights protected by the first amendment of the United States Constitution.” Risdal, 573 N.W.2d at 263. Yet, the practicalities of “[l]awful incarceration . . . necessitates a ‘withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.‘” Id. (quoting Pell, 417 U.S. at 822). How those rights intersect is at the heart of this case.
1. Inmates’ First Amendment free speech rights.
The Supreme Court first addressed “the appropriate standard of review for prison regulations restricting freedom of speech” in Procunier v. Martinez, 416 U.S. 396, 406 (1974), overruled by Thornburgh, 490 U.S. 401. California inmates brought a class-action challenge to the California DOC‘s rules censoring the content of incoming and outgoing inmate mail with anyone other than licensed attorneys and public officials. Id. at 398–400. Noting that the regulations affected First Amendment rights of both the inmates and the persons with whom they corresponded, id. at 408–09, the Supreme Court set out the following two-prong analysis for determining when censorship of inmate mail is justified:
First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the
suppression of expression. . . . [Prison officials] must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.
The Supreme Court revisited its Martinez standard in another inmate class-action suit, Turner v. Safley, this time challenging a Missouri prison regulation that banned correspondence between inmates in different institutions except between immediate family members or concerning legal matters. 482 U.S. at 81. The Eighth Circuit had characterized Martinez as applying a strict scrutiny standard to then conclude that the challenged regulation violated the First Amendment because “it was not the least restrictive means of achieving the security goals of the regulation.” Id. at 83. “In the [Eighth Circuit‘s] view, prison officials could meet the problem of inmate conspiracies by exercising their authority to open and read all prisoner mail.” Id.
In reversing the Eighth Circuit, the Supreme Court reviewed its decision in Martinez, noting that it had focused on the rights of the non-inmates who corresponded with an inmate and “expressly reserved the question of the proper standard of review to apply in cases involving questions of prisoners’ rights.” Id. at 85–86 (emphasis added) (citation modified). In contrast, the regulation in Turner involved only inmate-to-inmate correspondence, raising the “prisoner‘s rights” question left unanswered by Martinez. See id. The Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89. The Court explained: “In our view, such a standard is necessary if ‘prison administrators . . . , and not the courts, [are] to make the difficult judgments
The Court identified several factors relevant to “determining the reasonableness of the regulation at issue.” Id. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). The Court pointed out that “the governmental objective must be a legitimate and neutral one” and “found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.” Id. at 90; accord Bell, 441 U.S. at 551; Pell, 417 U.S. at 828.
The other relevant factors include “whether there are alternative means of exercising the right that remain open to prison inmates,” “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 90. But “[b]y 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. The Court made clear that “[t]his is not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant‘s constitutional complaint.” Id. at 90–91. Having identified the standard to be
The Court did not overrule Martinez in Turner. It did that two years later in Thornburgh v. Abbott. See 490 U.S. at 413–14. Thornburgh involved a class of federal inmates who brought both facial and as-applied challenges to “[r]egulations promulgated by the Federal Bureau of Prisons [that] broadly permit federal prisoners to receive publications from the ‘outside,’ but authorize prison officials to reject incoming publications found to be detrimental to institutional security.” Id. at 403. The regulations, which governed federal inmate access to publications prior to the Ensign Amendment, see Amatel, 156 F.3d at 193, “generally permit[ted] an inmate to subscribe to, or to receive, a publication without prior approval, but authorize[d] the warden to reject a publication in certain circumstances,” Thornburgh, 490 U.S. at 404 (footnote omitted) (describing
It held “that regulations affecting the sending of a ‘publication’ . . . to a prisoner must be analyzed under the Turner reasonableness standard” such that the “regulations are ‘valid if [they are] reasonably related to legitimate penological interests.‘” Id. (alteration in original) (quoting Turner, 482 U.S. at 89). Noting it could “apply a reasonableness standard to all incoming materials without overruling Martinez” by simply making clear that a “least restrictive alternative” analysis did not apply, the Court “cho[se] not to go that route.” Id. at 414. Rather, it “prefer[red] the express flexibility of the Turner reasonableness standard” and “adopt[ed] the Turner standard in this case with confidence that, as petitioners here have asserted, ‘a reasonableness standard is not toothless.‘” Id.
The Court described the first Turner factor as “multifold,” explaining that “we must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective.” Id. As to neutrality, the Court noted that the regulations “turn, to some extent, on content” where they “distinguish between rejection of a publication ‘solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant’ (prohibited) and rejection because the publication is detrimental to security
Applying this standard, the Court “conclude[d] that the broad discretion accorded prison wardens by the regulations here at issue is rationally related to security interests” for two reasons. Thornburgh, 490 U.S. at 416. The first was the security risks posed by incoming publications identified in the record, which included many of the concerns raised in this case about materials being traded among inmates and the associated potential for disruptive conduct or disorder. Id. at 412–13, 416. But the second reason has more relevance here. The Court said:
Second, we are comforted by the individualized nature of the determinations required by the regulation. Under the regulations, no publication may be excluded unless the warden himself makes the determination that it is “detrimental to the security, good order, or discipline of the institution or . . . might facilitate criminal activity.”
28 CFR §§ 540.70(b) ,540.71(b) (1988) . This is the controlling standard. A publication which fits within one of the “criteria” for exclusion may be rejected, but only if it is determined to meet that standard under the conditions prevailing at the institution at the time. Indeed, the regulations expressly reject certain shortcuts that would lead to needless exclusions. See§ 540.70(b) (nondelegability of power to reject publications);§ 540.71(c) (prohibition against establishing an excluded list of publications).
Id. at 416–17 (omission in original). Still, federal circuit courts have disagreed about the proper way to apply Turner.
2. Circuit split applying Turner to the Ensign Amendment.
The Supreme Court decided Thornburgh in 1989. As noted, the Iowa statute at issue here mirrors the Ensign Amendment—a federal law that took effect in 1997. Compare
Federal courts that have considered challenges to the Ensign Amendment have rejected the challenges. The courts take different views, however, on how the Turner test applies. Contrast Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004) (“To say . . . that rehabilitation legitimately includes the promotion of ‘values,’ broadly defined, with no particularized identification of an existing harm towards which the rehabilitative efforts are addressed, would essentially be to acknowledge that prisoners’ First Amendment rights are subject to the pleasure of their custodians.“), with Amatel, 156 F.3d at 198 (“The generality of [Turner v.] Safley‘s reasonableness test, and common sense as well, suggest that the flexibility open to the political branches must be at its apogee in institutions for the care and custody of those who have already transgressed society‘s norms. If ‘promoting respect for authority and traditional values’ among schoolchildren is a legitimate interest of government and not inherently a form of speech suppression, surely the same is true of promoting such a goal among criminals.” (citation omitted)).
The Amatel dissent disagreed with adopting a rational basis standard. See id. at 203–05 (Wald, J., dissenting). The dissent read the Turner framework as embracing two principles. Id. at 204. “First, fundamental rights of prisoners must give way to governmental concerns more readily than the fundamental rights of nonprisoners.” Id. Thus, it agreed that strict scrutiny was the wrong standard because it “would place an inordinately high obstacle in the way of prison administrators’ attempts to run their institution safely and efficiently.” Id. at 205. Yet, the dissent noted a second significant principle from Turner: “[T]he Court did not intend [Turner‘s] lesser standard of review to negate prisoners’ constitutional rights altogether, as the majority seems to suggest. The Court did not say, for example, that prison regulations are valid if there is any conceivable basis for their existence, as rational basis review is typically formulated.” Id. So, the dissent concluded that “although the strictness of our review is lessened, it is not eliminated altogether,” identifying that the “task, ultimately, is to assess
The Third Circuit subsequently sided with the Amatel dissent, holding that a challenge to the Ensign Amendment regulations could not be decided on a motion to dismiss “without any analysis or inquiry into the interests involved and the connection between those interests and the restriction at issue.” Ramirez, 379 F.3d at 126–29. In Ramirez v. Pugh, the court made clear that the specific governmental interest identified to support the regulation must itself provide the rational connection to the restriction on inmates’ free speech rights. Id. at 128 (“[A]lthough the District Court correctly identified rehabilitation as a legitimate penological interest, it did so without adequately describing the specific rehabilitative goal or goals furthered by the restriction on sexually explicit materials.” (citation omitted)).
The Third Circuit‘s approach recognized that the inmates’ fundamental constitutional rights were at stake. See id. at 128–29. It disagreed with the Amatel majority on two bases. First, where the identified interest was rehabilitation, “[t]o say . . . that rehabilitation legitimately includes the promotion of ‘values,’ broadly defined, with no particularized identification of an existing harm towards which the rehabilitative efforts are addressed, would essentially be to acknowledge that prisoners’ First Amendment rights are subject to the pleasure of their custodians.” Id. at 128. The Third Circuit sided with the Amatel dissent in rejecting this characterization of rehabilitation in the prison setting. “[T]o proceed on some vague assertion of an interest in ‘rehabilitation’ without the need to define the term or to show a connection between the proscribed activity and the chosen definition . . . runs an overwhelming risk of
Second, the Third Circuit also disagreed with Amatel‘s reliance on its own “common sense” without requiring an evidentiary record to establish the required connection. See id. at 129. Because the Ensign Amendment is directed at the federal inmate population as a whole, the court could “not find the connection between the Ensign Amendment and the government‘s rehabilitative interest to remain obvious upon consideration of the entire federal inmate population, including those prisoners not incarcerated for sex-related crimes.” Id.
The Third Circuit therefore concluded that a factual record was required to make that connection. Id.; see also Wolf v. Ashcroft, 297 F.3d 305, 309 (3d Cir. 2002) (requiring an evidentiary showing roughly corresponding to the degree to which the required means-end connection is “attenuated“). “Determining whether there is a rational link between sexually explicit material and the harms toward which the government‘s overall rehabilitative efforts are directed requires more than a conclusory assertion that the ‘consumption of [sexually explicit] publications [ ] implicitly elevate[s] the value of the viewer‘s immediate sexual gratification over the values of respect and consideration for others’ and a generalized statement that sexual self-control is relevant to the rehabilitation of the entire class of federal prisoners.” Ramirez, 379 F.3d at 130 (alterations in original) (quoting Amatel, 156 F.3d at 199, but disagreeing with it). The Ramirez court also held that an evidentiary record was required to support the other Turner factors, given that the court has “historically viewed these inquiries as being fact-intensive . . . [requiring] ‘a contextual, record-sensitive analysis.‘” Id.
3. The Turner framework is a reasonableness test, not rational basis review.
We agree with the Ramirez court that the Turner standard requires evidentiary support in a challenge to the institution-wide restrictions. See Ramirez, 379 F.3d at 130. It is not, as Amatel presumes, a traditional rational basis test. See Beard, 548 U.S. at 535 (requiring more than a mere logical connection); Thornburgh, 490 U.S. at 414 (recognizing the standard is “not toothless“). That conclusion is clear from Thornburgh, where the Supreme Court chose to overrule Martinez rather than just clarify that it was not requiring a least restrictive alternative analysis in favor of the “flexibility” and teeth in Turner‘s reasonableness standard. Thornburgh, 490 U.S. at 413–14; see also Aiello v. Litscher, 104 F. Supp. 2d 1068, 1080 (W.D. Wis. 2000) (“Because defendants do not disavow applications of the regulation prohibiting depictions of the Sistine Chapel, I assume defendants thought that rehabilitation would be furthered by banning those depictions as well as depictions of bestiality. If so, they have failed to submit any credible evidence from which a trier of fact could conclude reasonably there is such a connection.“).
The Supreme Court defended its holding in Martinez as requiring that regulations “be ‘generally necessary’ to a legitimate governmental interest,” Thornburgh, 490 U.S. at 411–12 (quoting Martinez, 416 U.S. at 414), which is consistent with its adoption of “the Turner reasonableness standard,” id. at 413.
This reasonableness test is not, as Amatel suggests, a traditional rational basis test. ”Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective.” Beard, 548 U.S. at 535. That is distinct from rational basis review, which “defers to the legislature‘s prerogative to make policy decisions by requiring only a plausible policy justification, mere rationality of the facts underlying the decision and, again, a merely rational relationship between the classification and the policy justification.” AFSCME Iowa Council 61, 928 N.W.2d at 32 (quoting Varnum v. Brien, 763 N.W.2d 862, 879 (Iowa 2009)); cf. King v. State, 818 N.W.2d 1, 27–28 (Iowa 2012) (holding that absent the deprivation of a fundamental right, we apply a rational basis test under which we “must determine whether the classification is ‘rationally related to a legitimate governmental interest,‘” and consider a “classification [to be] valid ‘unless the relationship between the classification and the purpose behind it is so weak the classification must be viewed as arbitrary or capricious‘” (quoting Ames Rental Prop. Ass‘n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007))).
Turner‘s “exaggerated response” limitation precludes using a plausibility standard that allows a prison administrator‘s explanation—without supporting evidence—to satisfy traditional rational basis review. 482 U.S. at 87 (describing prior prison rights cases as asking “whether a prison regulation that burdens fundamental rights is ‘reasonably related’ to legitimate penological objectives, or
Turner itself supports the view that actual evidence is required for the government to meet its burden to establish a legitimate basis for its restriction. In Turner, the Court relied on the following evidence from the record:
Prison officials testified that mail between institutions can be used to communicate escape plans and to arrange assaults and other
violent acts. Witnesses stated that the Missouri Division of Corrections had a growing problem with prison gangs, and that restricting communications among gang members, both by transferring gang members to different institutions and by restricting their correspondence, was an important element in combating this problem. Officials also testified that the use of Renz as a facility to provide protective custody for certain inmates could be compromised by permitting correspondence between inmates at Renz and inmates at other correctional institutions.
482 U.S. at 91 (citations omitted). In applying the standard, lower courts routinely rely on concrete evidence that supports a specific justification for a given regulation. See, e.g., Moses v. Dennehy, 523 F. Supp. 2d 57, 59 (D. Mass. 2007) (granting summary judgment for defendants in challenge to prison regulation “banning the receipt, possession, and display of nearly all materials containing nude or semi-nude images or sexually explicit content,” which was enacted after the DOC conducted a review of inmate mail procedures that revealed that “[s]exually explicit materials played some role in several of the 275 compiled incident reports” of a sexual nature over a two-year period, from which the DOC concluded that sexually explicit materials in prison facilities were “detrimental to prison security and the Department‘s rehabilitative efforts, and that it promoted the sexual harassment of female prison guards“), aff‘d sub nom., Josselyn v. Dennehy, 333 F. App‘x 581, 584 (1st Cir. 2009) (per curiam) (explaining that “deference to the Commissioner‘s views was particularly appropriate because those views were . . . buttressed by concrete examples of how restricting prisoners’ receipt of sexually explicit materials is related to prison safety and security“); cf. Payton v. Cannon, 806 F.3d 1109, 1110 (7th Cir. 2015) (Posner, J.) (“[W]e think it important to note for future reference that the ex-warden‘s statement, though plausible and thus sufficient for judgment given the absence of countervailing evidence, is not ironclad. Why the prison should be concerned if the prisoners swap these magazines is nowhere explained; nor is it
C. Free Speech Challenge Under Article I, Section 7 of the Iowa Constitution.
The plaintiffs ask us to apply strict scrutiny to infringements of inmates’ free speech rights protected by the Iowa Constitution or, if we are going to find a federal framework persuasive, they ask us to apply the standard from Martinez. See 416 U.S. at 413–14. As explained below, we reject those proposed standards under
The Iowa Constitution extends “the liberty of speech” to “[e]very person.”
Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libellous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.
Outside the prison context, we have commonly analyzed
Although we have often treated the reach of state and federal free speech rights as coextensive, we do not adopt federal precedent as our own under a lockstep approach. E.g., State v. White, 9 N.W.3d 1, 10 (Iowa 2024) (“We have emphasized that federal court opinions about the Federal Constitution do not dictate our interpretation of the Iowa Constitution.“); Varnum, 763 N.W.2d at 878 n.6 (“[W]e find federal precedent instructive in interpreting the Iowa
Yet, this case is not one where we find it appropriate to disregard the well-established federal framework and chart a different path, as the plaintiffs would have us do by applying Martinez. And the plaintiffs’ request that we apply strict scrutiny to their article I, section 7 claim ignores the fact of their imprisonment. See, e.g., Polk Cnty. Sheriff v. Iowa Dist. Ct., 594 N.W.2d 421, 429–30 (Iowa 1999) (en banc) (recognizing that federal “constitutional rights . . . are subject to restrictions and limitations justified by the considerations underlying the penal system“); Risdal, 573 N.W.2d at 263 (same); Fox, 493 N.W.2d at 831–32 (same).
Under the United States Constitution, ”Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.” Washington v. Harper, 494 U.S. 210, 224 (1990), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 483–84 (1995). The Turner framework is not limited to free speech, although it is most often applied in that context. See Turner, 482 U.S. at 91–99 (applying the same framework to free speech and right to marry); see, e.g., Overton v. Bazzetta, 539 U.S. 126, 131–36 (2003) (applying
Other states facing similar challenges have adopted Turner under the free speech provision of their respective state constitutions. See, e.g., Antenor v. Dep‘t of Corr., 462 P.3d 1, 17 (Alaska 2020); Cacicio v. Sec‘y of Pub. Safety, 665 N.E.2d 85, 92 (Mass. 1996); Pryor v. Dep‘t of Corr., 929 A.2d 1091, 1102-03 (N.J. Super. Ct. App. Div. 2007) (finding “no basis in New Jersey law to depart from . . . the Turner analysis” under a state constitutional provision that is virtually identical to
As previously noted, the
The plaintiffs have shown that
Justice McDonald‘s opinion concurring in the judgment would have us hold that
A unanimous opinion applying Turner written by Justice Thomas made it abundantly clear that inmates’ rights are not trapped in the nineteenth century:
[F]or much of this country‘s history, the prevailing view was that a prisoner was a mere “slave of the State,” who “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him.” In recent decades, however, this Court has determined that incarceration does not divest prisoners of all
constitutional protections. Inmates retain, . . . as relevant here, certain protections of the First Amendment .
Shaw v. Murphy, 532 U.S. 223, 228-29 (2001) (quoting Jones, 433 U.S. at 139 (Marshall, J., dissenting)). We need not upend our
We similarly have no reason to address the obscenity doctrine, as Justice McDonald does, because neither party argues that this case involves materials that are obscene. See State v. Thompson, 954 N.W.2d 402, 409 n.2 (Iowa 2021) (rejecting the dissent‘s views as “contrary to the adversarial process” because “[o]ur system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief’ ” (second alteration in original) (second quoting United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020))); accord Clark v. Sweeney, 607 U.S. 7, 9 (2025) (per curiam) (discussing the party-presentation principle). Indeed, there would be no basis for it under current doctrine. See Miller v. California, 413 U.S. 15, 24-25 (1973) (establishing obscenity doctrine guidelines); accord State v. Canal, 773 N.W.2d 528, 531 (Iowa
In sum, we see no reason to now apply—as the plaintiffs request—a heightened level of scrutiny to inmates’ free speech rights under
D. Applying Turner.
We review constitutional challenges de novo. See State v. Middlekauff, 974 N.W.2d 781, 791 (Iowa 2022). “Under a de novo review, ‘we make an independent evaluation of the totality of the circumstances as shown by the entire record.’ ” In re N.S., 13 N.W.3d 811, 820 (Iowa 2024) (quoting In re A.M., 908 N.W.2d 280, 283 (Iowa Ct. App. 2018)). “But because the district court had the opportunity to observe the witnesses and evaluate their credibility firsthand, we give deference to its factual findings.” Id. (quoting In re A.M., 908 N.W.2d at 283).
The plaintiffs’ appeal pursues only a facial challenge to
Neither the represented plaintiffs nor Hays has advanced more than a perfunctory argument that “the statute is unconstitutional as applied to a particular set of facts.” Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 764 (Iowa 2019) (quoting Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 231 (Iowa 2018), overruled on other grounds by Garrison v. New Fashion Pork LLP,
But, as explained above, the plaintiffs have shown that regulating materials featuring nudity would infringe free speech outside the context of imprisonment. So, we apply Turner to the plaintiffs’ challenge. See 482 U.S. at 89-91.
The Supreme Court identified four relevant factors under Turner, although the first is a threshold question. See Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (“The first Turner ‘factor’ is more properly labeled an ‘element’ because it is not simply a consideration to be weighed but rather an essential requirement.“), abrogated on other grounds by Kravitz v. Purcell, 87 F.4th 111, 119-22 (2d Cir. 2023). Our first task is answering the threshold question of “whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective.” Thornburgh, 490 U.S. at 414; see also Wolf, 297 F.3d at 307-08 (reversing a district court decision upholding a prison restriction on showing R-rated or NC-17-rated movies where the district court failed to address which of the government‘s three proffered interests was sufficiently connected to the ban). The State identified three objectives to support its regulations: rehabilitation, safety of inmates, and safety of staff.
We agree with the district court‘s finding that the regulations were justified by safety—particularly staff safety—in light of the record evidence about staff harassment in Iowa prisons. The plaintiffs testified at trial that the legislation was enacted in retaliation for the $2 million verdict the State was ordered to pay Sink, a correctional officer in the Clinical Care Unit of the Iowa State Penitentiary (ISP) in Fort Madison. Sink, 2016 WL 5930337, at *1. During the questioning of one plaintiff, the district court agreed to “take judicial notice of whatever is in the Court of Appeals decision in the Sink case.” When the ISP stopped showing R-rated movies, the inmates blamed Sink. Id. at *1-2. Inmates threatened to rape her. Id. One wrote “Sink several explicit notes describing sexual acts he would like to perform with her,” claiming “to have ejaculated on one of the[] notes he
This evidence supports the district court‘s conclusion that staff safety justified the regulations. See, e.g., Reynolds, 25 F.4th at 85-86 (holding that “there was more than sufficient evidence in the record to support the district court‘s conclusion” that a DOC policy limiting access to pictorial sexually explicit materials was implemented to address problems with harassment of female correctional officers based on, inter alia, testimony that ” ‘gunning,’ i.e., masturbating in front of female staff, [was] a prevalent practice at DOC facilities“).
There was also evidence specific to inmate safety. Lamb testified that he “never had any issue” with materials featuring nudity while he worked in Iowa prisons. But Dr. Tatman testified about studies linking nude material to prison violence generally, which was corroborated by Lamb‘s additional testimony about witnessing prison assaults and harassment of female staff in other prisons. The inmates testified that the materials were regularly traded like currency, making it difficult to keep the materials out of the hands of sex offenders housed throughout Iowa‘s prisons. Cf. Bomgaars v. State, 967 N.W.2d 41, 43 (Iowa 2021) (noting that there were approximately 1,600 male sex offenders in the Iowa prison system and that an offender would typically be transferred to the prison where treatment occurs only when he neared his tentative discharge date). In sum, we agree with the district court‘s conclusion that concerns about inmate and staff safety justified the regulations based on the evidence submitted at trial. Thus, the threshold Turner factor was satisfied here.
With respect to the third factor, the plaintiffs themselves testified to the proliferation of contraband and the sharing of materials among inmates, even using them as currency. “[T]he likelihood that such material will circulate within the prison raises the prospect of precisely the kind of ‘ripple effect’ with which the Court in Turner was concerned.” Thornburgh, 490 U.S. at 418. Because there would be a ripple effect once the challenged materials entered Iowa‘s prisons and began to be traded like baseball cards, we are “deferential to the informed discretion of corrections officials” in preventing the materials from pervasively spreading through correctional facilities. See Turner, 482 U.S. at 90. The third Turner consideration supports the State‘s defense of the regulations.
Finally, while the inmates argue that the prior version of the regulation and its reading rooms provide an easy alternative to the more burdensome ban, that does not address the more than de minimis cost it would impose on correctional facilities or satisfy the requirement that the alternatives be “obvious,
While we disagree with the district court‘s belief that no evidence was needed to justify the regulations’ ban on material featuring nudity, we conclude that the record provides the requisite evidence to establish that the regulations do not violate the plaintiffs’ free speech rights.
E. Hays‘s Appeal.
Hays‘s separate pro se appeal raises constitutional arguments beyond free speech. He argues that the State violated his rights to
1. Equal protection and substantive due process. The district court concluded: “Plaintiffs have not proved a violation of equal protection or substantive due process for the same reasons they have not proved a violation of the first amendment.” We agree. Although Hays does not forfeit his fundamental right to free speech based on his status as an inmate, imprisonment necessarily lowers the level of scrutiny we apply when that right is burdened. See Fox v. State, 493 N.W.2d 829, 831-32 (Iowa 1992) (recognizing that “the dominant interest of a penal institution in maintaining security” and “the interest of society in the security of its jails” serve to “qualif[y] the constitutional rights of prisoners“). Hays‘s free speech right does not receive more protection under the equal protection or due process clauses than it does under
2. Search and seizure. Next, Hays argues that “Defendants are illegally seizing the Plaintiffs property which was purchased by them.” He claims, without elaboration, that the “broad and liberal spirit” of Iowans’
Indeed, inmates have no legitimate expectation of privacy in their prison cells. Fox, 493 N.W.2d at 831 (citing Hudson, 468 U.S. at 530). So Hays‘s claim necessarily fails because his brief does not specify any unreasonable search or seizure beyond “numerous cell searches wherein the court documents filed in this case were sometimes seized or otherwise ‘lost’ and never returned.” We affirm the district court‘s conclusion that Hays “made no showing how the statute and regulations violate constitutional provisions against search and seizure.”
3. Cruel and unusual punishment and unenumerated rights. Hays also makes references to cruel and unusual punishment and the unenumerated rights clause in his brief, but he does not advance a substantive argument as to how those rights were violated. “A party forfeits an issue on appeal when the party fails to make more than a perfunctory argument in support of the issue.” Jackson, 4 N.W.3d at 311. The district court granted the State‘s motion for summary judgment on those claims, holding that Hays waived and forfeited the issues. We affirm the district court and need not address those issues any further here.
F. What We Are Not Deciding.
This case presents a facial challenge to a ban on “any commercially published information or material to an inmate when such information or material . . . features nudity.”
III. Conclusion.
For the foregoing reasons, we affirm the district court‘s judgment.
Affirmed.
All justices concur except McDonald, J., who files an opinion concurring in the judgment, and May, J., who files a separate opinion concurring in the judgment.
McDonald, Justice (concurring in the judgment).
I write separately because I disagree with the majority‘s rationale in affirming the judgment of the district court with respect to the plaintiffs’ state constitutional claim. In resolving that claim, the majority asks whether this court should depart from the United States Supreme Court‘s caselaw—specifically, the four-factor test announced in Turner v. Safley, 482 U.S. 78, 89-91 (1987)—and, finding no reason to depart, the majority adopts the Supreme Court‘s framework to resolve the plaintiffs’ claim. This approach asks the wrong question. A claim arising under the Iowa Constitution must be decided pursuant to the law established by the Iowa Constitution. The right question in that analysis is not whether this court should depart from the caselaw of a separate sovereign but instead what law
In asking the wrong question, the majority arrives at the wrong answer. I respectfully disagree with the majority‘s conclusion that the state constitutional right to speak, write, and publish encompasses a right of prisoners to force the state to expend funds so that the prisoners may receive commercial print publications containing sexually explicit content or nudity. The original law established by
I.
I begin with what I believe to be points of agreement with the majority: the first principles regarding the adjudication of state constitutional claims. The state constitution is “the supreme law of the state, and any law inconsistent therewith, shall be void.”
Judicial decisions that hold a law unconstitutional on grounds other than the original law of the constitution “ignore[] the effect of such decisions on perhaps the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society.” In re Winship, 397 U.S. 358, 385 (1970) (Black, J., dissenting). To protect the right of all Iowans to participate in the project of self-government, the judicial power to declare a law
It is for this reason that the rule of stare decisis must give way in constitutional cases; the rule of stare decisis cannot confer on this court by blind adherence to past opinions the authority to continue to violate the constitutional right of the people to govern themselves. The only constitutionally legitimate and lawful task of this court in adjudicating constitutional rights cases is to
This court determines the original law of the state constitution by examining the text of the constitution in light of the law, customs, and practices in place at the time the constitutional provision was adopted. See Hunter, 154 N.W. at 1047; see also Lennette v. State, 975 N.W.2d 380, 403-04 (Iowa
It must be admitted that in some cases it is more difficult than others to determine the original law created by the state constitution. The state constitution is almost one hundred and seventy years old. The legal contexts and doctrines that gave some of its provisions meaning and operational effect have been rejected or changed over time. In addition, some of its provisions and terms are vague, others ambiguous, others open-textured, and yet others ill-defined.
These interpretive difficulties, however real, do not create an impediment to adjudicating cases because this court‘s long-standing rules of constitutional adjudication resolve the issue. Under this court‘s rules of adjudication, statutes are presumed to be constitutional, and this court “will not declare statutes unconstitutional ‘unless they are shown to clearly, palpably and without doubt’ ” violate the constitution. Olsen v. State, 9 N.W.3d 21, 29 (Iowa 2024) (quoting Chi. Title Ins. v. Huff, 256 N.W.2d 17, 25 (Iowa 1977) (en banc)); see also State v.
II.
Now to points of disagreement. I part company with the majority, first, on its methodology. In resolving a state constitutional claim, asking whether this court should depart from the Supreme Court‘s caselaw is the wrong question. The right question is what law the state constitution itself established. See Linde, Constitutional Theory and State Courts, 18 Ga. L. Rev. at 179.
The majority does not fulfill its obligation to independently determine state constitutional law in this area. Instead, the majority adopts wholesale the Supreme Court‘s caselaw in this area based on this court‘s prior statements that
It is also true, however, that the Supreme Court‘s
[T]he
First Amendment . . . [did not] elevate speech to a constitutionally privileged liberty interest to be defended by free-ranging judicial supervision. Founding Era judges, after all, were confined to defending “marked and settled boundaries” of governmental authority, disregarding legislation only where constitutional violations were clear. Judges could not apply jurisprudential concepts “regulated by no fixed standard” on which “the ablest and the purest men have differed,” even when those principles were enumerated in a written Constitution. Judicial applications of theFirst Amendment were therefore limited to enforcing customary legal principles, even though the concept of expressive freedom, as a natural right, had a far broader range of potential implications.
Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 311-12 (2017) (citations omitted) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Iredell, J., concurring)).
[The Supreme Court‘s] modern doctrine inverts the Founding Era understanding of freedom of speech as a natural right by putting the
Id. at 316.
The divergence between the Supreme Court‘s precedents and the original law established by the federal and state constitutions is legally significant. This court only has the authority to declare a law unconstitutional when it clearly and palpably conflicts with the original law established by the state constitution. See Lindaman, 30 N.W.3d at 559 (“More specifically, ‘This Constitution,’ i.e., the state constitution as adopted in 1857, is ‘the supreme law of the state, and any law inconsistent therewith, shall be void.’ ” (quoting
III.
The majority‘s decision to adopt the Supreme Court‘s jurisprudence leads it astray. I respectfully disagree with the majority‘s conclusion that
The text of the state constitution does not support the conclusion that there is a state constitutional right to receive information. The constitution protects the right to “speak, write, and publish [one‘s] sentiments on all subjects.”
The leading contemporary treatise confirms this reading. Judge Cooley‘s treatise on state constitutional law explained that every state constitution, including Iowa‘s, had a provision protecting the right to free speech. See Cooley, A Treatise on the Constitutional Limitations at 414. These state constitutional protections for the freedom of speech and freedom of the press did “not assume
Even assuming there is a state constitutional right to receive information, an examination of the pre-existing law at the time the state constitution was adopted makes clear that the right does not include a right to receive commercial print materials of a sexually explicit nature or portraying nudity. At the time the state constitution was adopted, printed materials containing sexually explicit content or portraying nudity were deemed contraband subject to forfeiture. See Goddard v. President & Trs. of Town of Jacksonville, 15 Ill. 588, 594 (1854) (stating that “obscene books, prints and pictures” may be banned pursuant to the police power); Beebe v. State, 6 Ind. 501, 546-47 (1855) (per curiam) (“Gambling apparatus, obscene books, &c., are subjects of traffic, . . . and yet the manufacture of and commerce in them have been outlawed. No copyright can exist, consistently with principles of public policy, in any work of a clearly irreligious, immoral, libelous, or obscene description. It may be stated as a general principle, clearly deduced from an unbroken current of authorities, that property which has become a nuisance is placed beyond the pale of the law‘s protection . . . .” (citations omitted)), overruled on other grounds by Schmitt v. F. W. Cook Brewing Co., 120 N.E. 19, 21 (Ind. 1918); Lord v. Chadbourne, 42 Me. 429, 432-33 (1856) (“[O]bscene prints . . . are immoral in and of themselves. It
Iowa law was in accord with the general law. The Code of 1851 made it a crime for any person to “import, print, publish, sell, or distribute any book, pamphlet, ballad, or any printed paper containing . . . obscene prints, pictures or descriptions.”
This court‘s precedents from the relevant time period also show that the right to free speech did not include the right to make, sell, or possess materials containing sexually explicit content, including nudity. In accord with the general law, such items were contraband subject to forfeiture under Iowa law. See Santo v. State, 2 Iowa (Clarke) 165, 216 (1855) (explaining that “[t]he laws of the states generally” allowed for the seizure “of obscene books, prints and pictures” as contraband and that such seizures had “never been objected to, on constitutional grounds, although they have existed from the beginning of these governments“); Our House, No. 2 v. State, 4 Greene 172, 174 (Iowa 1853) (“Under our federal, as well as under state constitutions, it is not uncommon to pass laws declaring articles to be forfeited, when they are used for illegal or criminal purposes. This is the case under the laws prohibiting counterfeiting, smuggling and piracy. So also with obscene books and pictures.“).
The state prosecuted people for violating these laws. See Doty, 73 N.W. at 352. As indicated above, the Code made it unlawful to “sell[], or offer[] for sale or give[] away . . . any obscene, lewd, indecent, or lascivious books, pamphlets, paper drawing, lithograph, engraving, picture, photograph, model, cast, or any instrument or article of indecent or immoral[] use.” Id. (omission in original) (quoting 1888 Iowa Acts ch. 177, § 1, codified at
Given that the law at the time the Iowa Constitution was adopted deemed print materials containing sexually explicit content, including nudity, to be contraband and subject to forfeiture, I cannot conclude that the state constitution protects the right to receive such information. Further, given that these materials were prohibited to the public, it follows a fortiori that prisoners had no greater right to receive these materials. Indeed, at the time of Iowa‘s founding, no legal authority of which I am aware recognized that the freedom of speech applied to prisoners. Cooley‘s treatise, the leading contemporary authority on state constitutional limitations, does not discuss the application of free speech protections to the incarcerated. Nor do any reported decisions from the relevant period address the question. The silence of the contemporary legal authorities on this point is itself significant. The idea that prisoners retained a constitutional right to receive publications containing sexually explicit content or nudity was simply not part of the legal understanding at the time
For these reasons, I would hold that
The remedy for unwise or oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fail[s], the people, in their sovereign capacity, can correct the evil; but the courts cannot assume their rights. There is no paramount and supreme law which defines the law of nature, or settles those great principles of legislation which are said to control State legislatures in the exercise of the powers conferred on them by the people in the constitution.
Stewart, 30 Iowa at 17 (quoting Bennett, 3 F. Cas. at 227).
IV.
I concur in the court‘s judgment.
#24-0885
Gregory v. State
May, Justice (concurring in the judgment).
The court is right to affirm the district court‘s dismissal of the inmate plaintiffs’ challenge to
I write separately to mention two things. First, I agree with Justice McDonald that
Second, assuming arguendo that Turner v. Safley, 482 U.S. 78 (1987), governs the plaintiffs’
I appreciate all of my colleagues’ efforts on this interesting case. I respectfully concur in the judgment.