Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Thursday, March 28, 2024 | Back issues
Courthouse News Service Courthouse News Service

South Dakota Seeks to Reinstate Prison Porn Ban

A district court judge said the policy, which prohibits even written mentions of nudity, was overbroad and banned protected materials.

ST. LOUIS (CN) — The state of South Dakota argued before an Eighth Circuit panel Thursday to restore a far-reaching ban on books mentioning nudity in its prisons, seeking the reversal of an order that called the policy overly broad and a violation of the First Amendment. 

A panel of three Republican-appointed judges peppered counsel for the South Dakota Department of Corrections with questions about the breadth of its pornography policy during the virtual hearing. Charles Sisney, who is imprisoned in the South Dakota State Penitentiary on a life sentence, challenged the Department of Corrections’ policy banning pornography in its prisons in 2015, shortly after its revision in 2014. 

U.S. District Judge Lawrence Piersol took a red pen to the policy in June 2020, finding that the prison’s definitions of “pornographic” and “sexually explicit” material could not include nudity writ large and still be reasonably related to penological interests. The Bill Clinton appointee ruled in favor of Sisney in his challenges to the confiscation of several reproductions of famous artwork and two erotic novels, but gave the OK to prison officials’ confiscation of teen romantic comedy manga "Pretty Face" and a poster of a Coppertone sunscreen advertisement featuring a seminude child. 

The state appealed Piersol's decision, and argued Thursday that the policy was necessary to keep pornographic materials from serving as currency and prevent them from inhibiting sex offender rehabilitation. Assistant Attorney General Caroline Srstka said that “the district court went outside the parameters of common sense” by rewriting policy. 

“Pornography increases the risk of prison rape, and creating a hostile work environment for prison staff,” she said. 

Representing Sisney, North Dakota attorney Steven Morrison said the policy was nothing short of absurd.

“We know that this policy has been used to prohibit Parents magazine, biblical archaeology, a text on the Holocaust, Architectural Digest and Scientific American, all on the basis of sexually explicit material,” he told the panel.

The argument that access to those materials threatened prison staff’s safety, he said, was also without evidence. Officials “haven’t presented any evidence that inmates are running around, putting books in front of female guards and taunting them,” he said, referencing a scenario Srstka described. 

The panel of circuit judges — George W. Bush appointees Raymond Gruender and Duane Benton and Donald Trump appointee David Stras — were audibly skeptical of the policy’s constitutionality, but also grilled Morrison on whether the prison had a rational reason to ban Sisney’s books.

“Why don’t they, at least as applied, ban those two books?” Benton asked, referencing the erotic novels "Thrones of Desire" and "Pride & Prejudice: The Wild & Wanton Edition."

Morrison said there was no rational basis to ban the erotica, and that it was the state’s burden to establish a reason for its ban. “There’s no apparent institutional danger here,” he said. “There’s no record evidence for that.” 

The judges also pried intensely into Srstka arguments. “It’s your position that if there’s even one reference to nudity in a book, that that could cause disorder?” Benton asked. 

“That’s important for prison officials to have that all-or-nothing rule, because it would not be feasible to look, page-by-page, through a document to see if there’s any instance of nudity,” Srstka replied.

Benton cut in quickly: “I think you retreated quickly to a picture, and I was talking about books.” 

“The fact of the matter is, here in this case, Mr. Sisney requested erotica,” Srstka said. “The purpose of it is to arouse the reader, and that has the same effect as pornography, if not even more.” 

Benton and Gruender, however, both noted other examples of items that could be banned under the policy. “That might include the Bible. They wouldn’t let us, as kids, read Song of Solomon until 15 or 16,” Benton said. 

Srstka assured him that there was a copy of the Bible in the prison library. “The purpose of the Bible is not the sexual arousal of the reader,” she said, leading Gruender to ask “who determines purpose?”

Morrison called back to that interaction in his own arguments.

“The state, in the district court, conceded that the Bible is bannable under this policy,” he said. “Now, whether it’s in the library or not, I don’t know, but we do know that a text called 'Biblical Archaeology' was prohibited for being explicit.”

Gruender similarly asked whether an intimate letter from a spouse or partner could be confiscated for eroticism. “Don’t you think mailroom or prison officials could say ‘you can’t have this letter from your wife?’” he asked. 

Srstka replied that those murky boundaries were good reason to leave those decisions up to prison officials. 

Speaking after arguments on Thursday afternoon, Morrison said the state’s arguments were entirely baseless. 

“Like Willy Wonka, it’s their world of pure imagination. They presented no evidence of any problem, and it defies logic that pictures depicting the Holocaust would be traded as sexually prurient texts,” he said. “It defies logic to believe that a magazine on camping, or a magazine on fishing, or the New Yorker, or Architectural Digest, needs to be prohibited to ensure institutional security, or inmate rehabilitation.” 

He said he thought oral arguments went well. “If their interest is security and rehabilitation, and they’re busy prohibiting mainstream materials dealing with news, and the intellect, and the arts,” he said, “it’s frankly an uphill climb for the state.”

“Good cases,” he added, “mean good oral arguments.” 

The South Dakota Attorney General’s office declined to comment on ongoing litigation.

Categories / Appeals, Government, Law

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Loading...