Petition for Writ of Certiorari — Charles E. Sisney, Petitioner v. Denny Kaemingk, Secretary, South Dakota Department of Corrections, et al.

No. ____

In the

Supreme Court of the United States

__________________

CHARLES E. SISNEY,

Petitioner,

v.

DENNY KAEMINGK, ET AL.,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

STEVEN R. MORRISON

Counsel of Record

The Morrison Law Practice

1526 Robertson Ct.

Grand Forks, North Dakota 58201

617-749-7817

steven.r.morrison@gmail.com

Counsel for Petitioner

February 8, 2022

QUESTION PRESENTED

1. It is settled that inmates in state and federal prisons retain First

Amendment rights consistent with the application of the four factors set forth in

Turner v. Safley, 482 U.S. 78 (1987). Turner has been applied consistently in many

prisons and many states to restrict from inmates’ access a broad range of otherwise

First Amendment-protected materials. It has also, however, worked to leave open a

space for inmates to access a broad swath of such materials. In this case, the prison

managed by the respondents that houses the petitioner applies a “pornography”

policy. That policy functions to prevent inmates from receiving a wide range of

written and pictorial texts, including, but certainly not limited to, National

Geographic Magazine; Smithsonian Magazine; U.S. Weekly; Wired Magazine; Yoga

Journal; and (as admitted by the respondents) the Holy Bible. This policy is one of

unprecedented scope in the history of such policies in state and federal prisons in

the United States. It serves to prohibit inmates from reading mainstream texts in

areas such as current events, sociology, religion, art, technology, and personal

health. Should the Eighth Circuit’s approval of this policy stand, other prisons are

sure to adopt it. Is such a broad “pornography” policy consistent with this Court’s

jurisprudence on First Amendment overbreadth?

i

STATEMENT OF RELATED PROCEEDINGS

U.S. District Court, South Dakota, No. 4:15-cv-4069, Charles E. Sisney v. Denny

Kaemingk, et al., September 29, 2016.

Eighth Circuit Court of Appeals, No. 16-4313, Charles E. Sisney v. Denny

Kaemingk, et al., March 30, 2018.

U.S. District Court, South Dakota, No. 4:15-cv-4069, Charles E. Sisney v. Denny

Kaemingk, et al., June 24, 2020.

Eighth Circuit Court of Appeals, No. 20-2460, Charles E. Sisney v. Denny

Kaemingk, et al., October 15, 2021.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

STATEMENT OF RELATED PROCEEDINGS ........................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR CERTIORARI .................................................................................... 1

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 1

REASONS FOR GRANTING THE PETITION ............................................................ 9

I.

SDSP inmates have the First Amendment right to access both

high-value material and sexually explicit material ................................... 10

A. The starting point of this Court’s analysis must be protecting the

petitioner’s constitutional rights, not upholding the prison’s censorship

policy ............................................................................................................ 12

B. Where the right at issue is a First Amendment right, this Court must

take particular care to vindicate the petitioner’s right .............................. 12

C. This Court must consider the importance of the petitioner’s First

Amendment rights and whether the respondents’ censorship actually

serves any legitimate penological interest ................................................. 15

a. Turner requires more than a rational basis analysis ........................... 15

b. The respondents suggest a precedent that would eradicate

prisoners’ First Amendment rights ....................................................... 18

D. The four Turner factors compel a finding for the petitioner ...................... 20

iii

a. The prison’s censorship program is not reasonably related to a

legitimate and neutral objective ............................................................ 20

i.

The respondents establish no reasonable relation between

the prison’s policy and legitimate penological interests,

and even stonewalled the petitioner’s attempts to

discover such a relation ............................................................... 20

ii.

The prison’s ban is content-based, not neutral .......................... 22

1. The policy is not facially neutral ........................................... 22

2. The ban is focused on suppressing expression, not

furthering any legitimate penological interest ..................... 24

b. The prison’s censorship policy contains no alternative means

for exercising the right to receive, possess, and mail sexually

explicit materials .................................................................................... 26

c. The respondents demonstrated absolutely no negative impacts

that accommodation of the right would have on others in the

prison ...................................................................................................... 28

d. The former policy proves that there is an obvious, less-restrictive

alternative to the current censorship policy ......................................... 29

E. The policy restricts mail that inmates may send to non-inmates,

violating the rights of inmates and non-inmates alike .............................. 30

II.

Relief requested ........................................................................................... 31

CONCLUSION............................................................................................................. 31

APPENDIX

Opinion in the United States Court of Appeals for the Eighth Circuit

(October 15, 2021)............................................................................................ App. 1

Amended Memorandum Opinion and Order in the United States District

Court for the District of South Dakota Southern Division

(June 29, 2020) .............................................................................................. App. 29

iv

Judgment in the United States District Court for the District of South

Dakota Southern Division

(June 29, 2020) .............................................................................................. App. 46

Opinion in the United States Court of Appeals for the Eighth Circuit

(March 30, 2018) ............................................................................................ App. 48

Amended Memorandum Opinion and Order in the United States District

Court for the District of South Dakota Southern Division

(September 29, 2016)..................................................................................... App. 60

Report and Recommendation on the Parties’ Cross Motions for Summary

Judgment in the United States District Court for the District of South

Dakota Southern Division

(May 25, 2016) ............................................................................................... App. 67

Order Denying Petition for Rehearing and Rehearing En Banc in the United States

Court of Appeals for the Eighth Circuit ..................................................... App. 172

U.S. Const. amend. I ......................................................................................... App. 173

v

TABLE OF AUTHORITIES

United States Supreme Court

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ...................................................................................................... 12

Bell v. Wolfish,

441 U.S. 520 (1979) ................................................................................................ 10, 22

Boos v. Barry,

485 U.S. 312 (1988) ...................................................................................................... 14

Brandenburg v. Ohio,

395 U.S. 444 (1969) ...................................................................................................... 14

City of Renton v. Playtime Theaters, Inc.,

475 U.S. 41 (1986) ........................................................................................................ 24

Heller v. Doe,

509 U.S. 312 (1993) ...................................................................................................... 15

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,

515 U.S. 557 (1995) ...................................................................................................... 13

Jacobellis v. State of Ohio,

378 U.S. 184 (1964) ........................................................................................................ 9

Miller v. California,

413 U.S. 15 (1973) .......................................................................................................... 9

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ...................................................................................................... 14

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ...................................................................................................... 10

Police Dep’t. of Chicago v. Mosley,

408 U.S. 92 (1972) ........................................................................................................ 13

Procunier v. Martinez,

416 U.S. 396 (1974) .................................................................................... 10, 11, 12, 30

vi

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ...................................................................................................... 12

Regan v. Time, Inc.,

468 U.S. 641 (1984) ...................................................................................................... 13

Sable Comm. of Cal., Inc. v. FCC,

492 U.S. 115 (1989) ...................................................................................................... 10

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,

502 U.S. 105 (1991) ...................................................................................................... 13

Stanley v. Georgia,

394 U.S. 557 (1969) ................................................................................................ 10, 11

Terminiello v. City of Chicago,

337 U.S. 1 (1949) .......................................................................................................... 13

Thornburgh v. Abbott,

490 U.S. 401 (1989) ...............................................................................................passim

Turner v. Safley,

482 U.S. 78 (1987) .................................................................................................passim

Turner Broadcasting Sys., Inc. v. FCC,

512 U.S. 622 (1994) ...................................................................................................... 24

United States v. Playboy Ent. Group, Inc.,

529 U.S. 803 (2000) ................................................................................................ 14, 23

United States v. Stevens,

559 U.S. 460 (2010) ...................................................................................................... 14

Watts v. U.S.,

394 U.S. 705 (1969) ...................................................................................................... 14

Circuit Courts of Appeals

Allen v. Coughlin,

64 F.3d 77 (2d Cir. 1995) ............................................................................................. 16

Amatel v. Reno,

156 F.3d 192 (D.C. Cir. 1998) ................................................................................ 19, 27

vii

American Library Ass’n v. Reno,

33 F.3d 78 (D.C. Cir. 1994) .......................................................................................... 25

Carpenter v. South Dakota,

536 F.2d 759 (8th Cir. 1976)........................................................................................ 11

Dawson v. Scurr,

986 F.2d 257 (8th Cir. 1993)............................................................................ 23, 26, 27

Dean v. Bowersox,

325 Fed.Appx. 470 (8th Cir. 2009) .............................................................................. 29

Frazier v. Dubois,

922 F.2d 560 (10th Cir. 1990)...................................................................................... 18

Giano v. Senkowski,

54 F.3d 1050 (2d Cir. 1995) ......................................................................................... 23

Jones v. Salt Lake County,

503 F.3d 1147 (10th Cir. 2007).................................................................................... 27

Jordan v. Sosa,

654 F.3d 1012 (10th Cir. 2011).................................................................................... 28

Mauro v. Arpaio,

188 F.3d 1054 (9th Cir. 1999)................................................................................ 12, 27

Murchison v. Rogers,

779 F.3d 882 (8th Cir. 2015)........................................................................................ 25

Pepperling v. Crist,

678 F.2d 787 (9th Cir. 1982)........................................................................................ 23

Rodriguez v. Maricopa County Community College Dist.,

605 F.3d 703 (9th Cir. 2010)........................................................................................ 13

Salaam v. Lockhart,

905 F.2d 1168 (8th Cir. 1990)................................................................................ 15, 17

Shimer v. Washington,

100 F.3d 506 (7th Cir. 1996).................................................................................. 16, 18

Smith v. Delo,

995 F.2d 827 (8th Cir. 1993)........................................................................................ 30

viii

Swift v. Lewis,

901 F.2d 730 (9th Cir. 1990)........................................................................................ 18

Thibodeaux v. South Dakota,

553 F.2d 558 (8th Cir. 1977)........................................................................................ 11

Walker v. Sumner,

917 F.2d 382 (9th Cir. 1990).................................................................................. 16, 18

Whitney v. Brown,

882 F.2d 1068 (6th Cir. 1989)...................................................................................... 19

Whitton v. City of Gladstone,

54 F.3d 1400 (8th Cir. 1995)........................................................................................ 24

United States District Courts

Aiello v. Litscher,

104 F.Supp.2d 1068 (W.D.Wisc. 2000) .................................................................. 21, 22

Cline v. Fox,

319 F.Supp.2d 685 (N.D.W.Va. 2004) ................................................................... 21, 28

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 1

Rules and Regulations

28 C.F.R. § 540.71 .................................................................................................. 27, 28

ix

PETITION FOR CERTIORARI

This case offers the Court the opportunity to clarify the limits to which a

prison may go to restrict the very types of materials we would hope inmates would

read: mainstream, educational texts on current events, religion, sociology,

technology, health, and other important topics. In clarifying the limits, this Court

will uphold the principles of the First Amendment, which apply no less to inmates

than to the rest of us. It will therefore stem the inevitable tide of other prisons that

will invariably follow the respondents’ simple, but overly broad policy. If that is

allowed to happen, inmates will no longer enjoy the First Amendment protection to

consider world cultures and current events via texts such as National Geographic or

Newsweek. They will no longer be sure that they can read Parents magazine, in

preparation for their release to care for their families. They will no longer have

confidence that their books and magazines on yoga and Buddhism will come to them

unimpeded, so that they may practice mindfulness or their chosen religion. And

they will, as the respondents have admitted, not have the First Amendment

guarantee of possessing and reading the Holy Bible.

Were this to happen, inmates from around the country would no longer have

the opportunity to educate themselves, to better themselves, or to rehabilitate

themselves. Were this to happen, the Turner v. Safley factors would be rendered a

mockery, and the First Amendment would be terribly harmed.

This Court should grant this petition for writ of certiorari in order to protect

the First Amendment.

1

OPINION BELOW

The Eighth Circuit’s opinion (Pet.App.1) is available at 15 F.4th 1181 (8th

Cir. 2021).

JURISDICTION

The Eighth Circuit rendered its decision on October 15, 2021. This Court has

jurisdiction based on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States Constitution is reproduced in the

appendix.

STATEMENT OF THE CASE

The South Dakota State Penitentiary (“SDSP”), where the petitioner resides

as a prisoner, applies a “pornography” policy that the respondents defend. SDSP

has used this policy to ban a wide range of texts from inmates’ possession and

access, including National Geographic; Smithsonian Magazine; U.S. Weekly; Mad

Magazine; Wired; In These Times; Tricycle: A Buddhist Review; Yoga Journal;

Buddhadharma; W; Esquire; Guns, Germs, and Steel; The Barnes Review; Details;

Elle; Vogue; In Style; Lucky; Glamour; Islands Magazine; Maxim Magazine; Merck’s

Manual; OK! Magazine; Skin & Ink; Special Operations Forces Medical Handbook;

Top 100 Horror Movie Guide; Hot Bike Magazine; Men’s Fitness; Cosmopolitan; and

Parents magazine. (DCD 1-3; DCD 105, p. 12).

The respondents have represented in court that the Holy Bible is also subject

to ban under their policy. (DCD 183, p. 20).

2

Virtually none of the texts at issue are what people, applying common sense,

would refer to as “pornography.”

The current policy at issue in this case prohibits inmates’ possession,

manufacture, and sending of “pornographic material” even where the intended

recipient of the material is not in custody or otherwise under state supervision.

(DCD 27-1).

Under the policy, “pornographic material” is anything that “feature[s] nudity

or ‘sexually-explicit’ conduct.” “Nudity” means “a pictorial or other graphic depiction

where male or female genitalia, pubic area, buttocks or female breasts are exposed.”

“Sexually explicit” covers both images and writing that describe actual or simulated

sexual acts. Id.

SDSP rejects material if it contains a picture that shows any “definition” of

breast or groin, even if fully clothed, or if the material depicts or describes an

“excessive” amount of inner thigh, breast or buttock. (DCD 1, pp. 4-5).

The current policy does not explicitly define “feature.” The respondents have

provided inconsistent statements regarding this provision. They have claimed that

the current policy incorporates the definition of “feature” set forth in the June 2008

version of the policy, (DCD 64-4, p. 5), which provided: “‘Feature’ means that the

publication contains depictions of nudity or sexually explicit conduct on a routine or

regular basis or promotes itself based upon such depictions in the case of individual

one-time issues.” (DCD 68-1).

3

But the respondents have repeatedly suggested that the “feature” provision of

the policy has no force. One respondent explicitly denied that the above definition of

“feature” is part of the current policy, stating that “[w]hether or not a published

material ‘features’ sexually explicit material would be totally dependent upon the

material in question and would vary from case to case.” (DCD 95-5, pp. 2-3; DCD

95-6, p. 4). The respondents elsewhere have represented that material may be

rejected “on the basis of a single picture or article contained therein,” (DCD 99, p.

6), or if incoming or outgoing correspondence includes “any material that depicts

pornography, sexually explicit conduct and/or nudity.” (DCD 70-14, p. 3). SDSP will

also reject material if it simply “contains” “pornography.” (DCD 70-15, p. 2).

The policy contains an exception for material “illustrative of medical,

educational or anthropological content.” (DCD 27-1). However, the respondents

refused to respond to the petitioner’s discovery request for instances in which the

prison applied this exception. (DCD 94, p. 4; DCD 99, p. 4).

Unlike its prior iterations, the current policy bans “[a]ll incoming and

outgoing” material that contains pornography; the “manufacturing” of pornography;

and “graphic” and “writing[]” forms of pornography. (DCD 27-1).

The petitioner filed a complaint in April 2015 and a supplemental complaint

in the next month. (DCD 1; DCD 8-1).

Among other claims, the petitioner claimed that the current policy is

unconstitutional on its face because it completely bans all sexually explicit

materials, denying him the right to receive sexually explicit communication, and

4

because it bars him from sending out sexually explicit materials to people in the

general public, thus denying people who are not in any incarcerative setting the

right to receive sexually explicit communications. (DCD 8-1, pp. 9-10). The

petitioner also claimed that the policy is unconstitutional as applied because the

prison’s interpretation of “pornography” was overbroad. Id. at 10.

In their answer, the respondents asserted a panoply of traditional, legitimate

penological interests in support of the policy. (DCD 35, pp. 25-26). They also claimed

that the policy did not impose a global ban on all materials, just on materials that

“feature” nudity or sexual conduct. Thus, “a single nude photo in a publication

generally will not lead to a ban on the publication.” Id. at 30. Elsewhere, however,

the respondents admitted that “a single picture or article in a magazine or

publication” provides a basis for rejecting the entire magazine or publication. (DCD

94, p. 3; DCD 99, p. 3).

The respondents’ response to the petitioner’s discovery requests was the very

picture of recalcitrance. On October 19, the petitioner sent to the respondents a

request for production of documents. (DCD 53). The respondents failed to respond

within the allotted time. The petitioner sent to them a letter of inquiry, attempting

to confer in good faith regarding any discovery disputes the respondents might have

had. Id. at 1-2. The respondents did not respond. Id. at 2.

Instead, the respondents filed a motion for a protective order, (DCD 41),

claiming that the petitioner’s requests were irrelevant to his as applied challenge.

Id. at 3-4. The respondents did not state why the request was irrelevant, and they

5

ignored the existence of the petitioner’s facial challenge. (DCD 41). The court denied

this motion, finding no indication that the respondents conferred with the petitioner

in good faith, in violation of Fed. R. Civ. P. 26(c). (DCD 43).

The respondents continued down their road of recalcitrance. On December 9,

the petitioner filed a motion to compel production of discovery documents, claiming

that the respondents had refused to respond to his discovery requests. (DCD 51).

The petitioner specifically referred to his facial challenge. (DCD 53, p. 3).

Two days later, the magistrate judge filed an order granting in part and

denying in part the petitioner’s motion to compel. (DCD 56). The court ordered the

respondents to “immediately or as soon as possible serve Mr. Sisney with written

responses to his October 19, 2015 discovery requests.” Id. at 3.

On the same day, the petitioner filed a motion to compel answers to

interrogatories. (DCD 59). These answers were due on December 23, 2015. Id. at 2.

On December 24, the petitioner received a partial response to his interrogatories,

with one respondent refusing to respond to any of the petitioner’s interrogatories

until the court directed her to do so. Id. at 2-3.

Three days later, the respondents filed a renewed motion for a protective

order, arguing that the court had already disposed of the petitioner’s facial

challenge, and thus that discovery about other inmates was not relevant. (DCD 72,

pp. 2-3).

On May 25, the magistrate judge denied the respondents’ motion for

protective order and granted the petitioner’s motion to compel discovery as to his

6

facial challenge. The court ordered the state to serve the petitioner with all

responses to his interrogatories. (DCD 104, p. 7). The court gave the respondents 30

days to comply. Id. The respondents never complied. The court also granted the

petitioner’s motion to resolve his facial challenge, concluding that his facial

challenge survived. Id. at 6.

The petitioner’s attempts at discovery provided the respondents a perfect

opportunity to prove that their pornography policy was necessary. The petitioner

requested information on the incidence of inmate sexual misconduct and the

incidence of prison staff reporting a sexually hostile environment. (DCD 95-1, pp. 23). The respondents’ response was that these requests were “absurd.” (DCD 95-3,

pp. 5-6).

The petitioner asked for a definition of “feature” from a past policy and

whether that definition was still applicable. (DCD 95-1, p. 2). The respondents

refused to respond. (DCD 95-3, p. 5).

The petitioner asked for the number of materials that the prison had rejected

as pornographic, information regarding these materials, and for the number of

disciplinary incidents or investigations the prison performed regarding

pornographic material. (DCD 95-2, pp. 2-3). The respondents refused to respond,

claiming this information was irrelevant. (DCD 95-4, pp. 4-5).

The petitioner asked whether any exceptions had been made to the policy.

(DCD 95-2, pp. 4-5). In response, the respondents referred the petitioner to the

7

current policy, claiming only that “the language contained therein is selfexplanatory.” (DCD 95-4, p. 6).

The petitioner asked whether the respondents’ interpretation of the terms

“nudity” and “sexually explicit” applied to Michelangelo’s Statue of David, a picture

of the Sistine Chapel ceiling, or a picture of a naked child in National Geographic.

(DCD 64-15, p. 3). One respondent refused to answer. (DCD 64-6, p. 4).

Counsel for the respondents, indeed, informed the petitioner that no

respondent would respond to any discovery request regarding other inmates based

on the erroneous claim that the petitioner was making only as “as applied”

challenge, and not a facial challenge. (DCD 64-7).

On January 7, 2016, the respondents filed their motion for summary

judgment. (DCD 67). The petitioner, too, had filed a motion for summary judgment.

On September 29, the district court filed its order. It granted the petitioner’s

motion for summary judgment on his facial challenge and found that the current

policy is unconstitutional. It detailed how the four factors in Turner v. Safley were

not satisfied (further discussion of this follows infra).

The respondents appealed to the Eighth Circuit. On March 30, 2018, the

Eighth Circuit found that the district court erred in its analysis, and remanded the

case for further consideration.

On June 24, 2020, the district court issued a new memorandum opinion and

order, finding once again that the respondents had failed to satisfy the Turner

factors. The district court considered the respondent’s facial overbreadth claim and

8

found that portions of the policy were unconstitutionally overbroad. It edited the

policy in an attempt to save it from complete invalidation.

The respondents again appealed to the Eighth Circuit. On October 15, 2021,

the Eighth Circuit filed its opinion. It found that the petitioner’s facial challenge as

to the policy’s prohibition on “nudity” was moot, and that his facial challenge as to

the policy’s prohibition on “sexually explicit content” was not unconstitutionally

overbroad.

Judge Stras filed a concurring and dissenting opinion. He rejected the panel’s

conclusion that the petitioner’s overbreadth claim was at all moot. Judge Stras did,

however, find no evidence of substantial overbreadth.

REASONS FOR GRANTING THE PETITION

This Court is faced with a prison “pornography” policy that seemingly

operates to prohibit every type of text that even remotely touches upon issues of sex,

and a wide variety of texts that do not. There is virtually no actual pornography at

issue in this case. The vast majority of texts are neither obscene, as they do not

appeal to a prurient interest in sex, are not patently offensive, and are often of

highly redeeming social value. Miller v. California, 413 U.S. 15, 21 (1973). Nor are

most of the texts pornography as common sense might define it. See Jacobellis v.

State of Ohio, 378 U.S. 184, 197 (1964) (Steward, J., concurring) (As to pornography,

Justice Steward “[knew] it when [he saw] it.”).

The overwhelming amount of texts prohibited are high-value texts that are

not prohibitable under Turner v. Safley. The respondents’ policy is content-based,

9

not neutral. It infringes on the First Amendment rights of people who are not

inmates, and who might communicate with inmates. And the policy at issue is

unprecedented in the history of similar policies.

For all of these reasons, the policy is unconstitutionally overbroad and thus

facially unconstitutional.

I.

SDSP inmates have the First Amendment right to access both highvalue material and sexually explicit material

“Inmates clearly retain protections afforded by the First Amendment.”

O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); see also Bell v. Wolfish, 441

U.S. 520, 545 (1979) (convicted persons “do not forfeit all constitutional protections

by reason of their conviction and confinement in prison.”); Procunier v. Martinez,

416 U.S. 396, 418 (1974) (inmates “plainly” retain the First Amendment right to

receive and send “uncensored communication”). These protections are only stronger

when inmates wish to communicate with individuals not in custody, because

“censorship of prisoner mail works a consequential restriction on the First and

Fourteenth Amendments rights” of both the inmate and the person with whom the

inmate is corresponding. Martinez, 416 U.S. at 409.

This right protects high-value speech, but it also protects sexually explicit

speech. Stanley v. Georgia, 394 U.S. 557, 564 (1969) (holding that the protection of

obscenity is “fundamental to our free society”); see also Sable Comm. of Cal., Inc. v.

FCC, 492 U.S. 115, 126 (1989) (“Sexual expression which is indecent but not

obscene is protected by the First Amendment.”).

10

Indeed, the Eighth Circuit has held that inmates “clearly have a right to

receive” sexually explicit publications. Carpenter v. South Dakota, 536 F.2d 759, 761

(8th Cir. 1976). In Thibodeaux v. South Dakota, for example, that court recognized

an inmate’s “sensitive First Amendment rights” as to his possession of Mature, a

magazine dedicated to “gay life, swinging, swapping, S & M, AC-DC, and

discipline.” 553 F.2d 558, 559-60 (8th Cir. 1977).

To be sure, courts give deference to prisons with a “hands-off attitude toward

problems of prison administration.” Martinez, 416 U.S. at 404. This deference,

however, is limited, and courts recognize that inmates still possess “fundamental

constitutional guarantee[s].” Id. at 405. Courts will, therefore, “discharge their duty

to protect [inmates’] constitutional rights.” Id. at 405-06.

Because courts seek to protect inmates’ constitutional rights, categorical bans

on sexually explicit material are suspect. Stanley, 394 U.S. at 565. Just as Georgia

could not show that exposure to the materials that Stanley possessed could lead to

deviant sexual behavior or crimes of sexual violence, id. at 566, the respondents in

this case have demonstrated no actual danger to the possession of any of the texts

at issue. See id. at 567 (“the State may no more prohibit mere possession of obscene

matter on the ground that it may lead to antisocial conduct than it may prohibit

possession of chemistry books on the ground that they may lead to the manufacture

of homemade spirits.”).

11

A.

The starting point of this Court’s analysis must be protecting

the petitioners’s constitutional rights, not upholding the

prison’s censorship policy

The starting point for any question involving prison regulations that limit

inmates’ constitutional rights must be a presumption that those rights are

protected, subject only then to reasonable restrictions. As the Supreme Court noted

in Turner v. Safley, “The first of [the] principles [that frame federal courts’ analysis

of prisoners’ constitutional claims] is that federal courts must take cognizance of the

valid constitutional claims of prison inmates.” 482 U.S. 78, 84 (1987). “Because

prisoners retain these rights, ‘[w]hen a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts will discharge their duty to

protect constitutional rights.’” Id. at 84 (citing Martinez, 416 U.S. at 405-06).

To be sure, this Court must balance the petitioner’s constitutional rights

against the right of the respondents to secure their prison, but courts are clear that

protecting inmates’ constitutional rights is the first of these two principles. Mauro

v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999).

B.

Where the right at issue is a First Amendment right, this Court

must take particular care to vindicate the petitioner’s right

Just as this Court must seek first to protect the petitioner’s constitutional

rights, so too must it take special care to protect the petitioner’s First Amendment

rights, which are among the most important in our constellation of rights. Ashcroft

v. Free Speech Coalition, 535 U.S. 234, 245 (2002) (“As a general principle, the First

Amendment bars the government from dictating what we see or read or speak or

hear.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“The First Amendment

12

generally prevents government from proscribing speech, . . . or even expressive

conduct, . . . because of disapproval of the ideas expressed.”); Simon & Schuster, Inc.

v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J.,

concurring in judgment) (observing “government’s lack of power to engage in

content discrimination”); Regan v. Time, Inc., 468 U.S. 641, 648-49

(1984) (“Regulations which permit the Government to discriminate on the basis of

the content of the message cannot be tolerated under the First Amendment.”);

Police Dep’t. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (“above all else, . . .

government has no power to restrict expression because of its message, its ideas, its

subject matter, or its content.”).

This concern with the First Amendment extends to unpopular speech as

much as any other type of speech. Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557, 574 (1995) (“[T]he point of all speech

protection . . . is to shield just those choices of content that in someone’s eyes are

misguided, or even hurtful.”); Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)

(speech “may indeed best serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they are, or even stirs people to

anger.”); Rodriguez v. Maricopa County Community College Dist., 605 F.3d 703, 708

(9th Cir. 2010) (“The right to provoke, offend and shock lies at the core of the First

Amendment.”).

It is not easy to live up to such principles when the speech in question exists

inside a prison. Yet our First Amendment jurisprudence recognizes that these

13

protections will not long endure if we abandon them when the state invokes

penological interests that are under no threat from the speech at issue in service of

the speech’s complete censorship. This Court has been dedicated to providing First

Amendment activities with “breathing space,” Boos v. Barry, 485 U.S. 312, 322

(1988), where the gossamer specter — but not the concrete actuality — of danger

looms.

Thus, this Court has protected rhetorical calls to break individuals’ necks in

connection to a boycott of anti-black businesses, NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 902 (1982), and to put President Johnson in a gun sight, where

the context was a Vietnam war protest. Watts v. U.S., 394 U.S. 705, 706 (1969). The

Court has protected a KKK rally and has held that the First Amendment protects

calls to lawless conduct unless they meet the test for incitement. Brandenburg v.

Ohio, 395 U.S. 444 (1969). At the First Amendment’s core is the proposition that

speech is protected unless the government can prove the actual potential for some

real harm.

Most of the speech that SDSP bans under its policy is high-value — few in

our society can doubt the social value of religious texts, National Geographic, or

Guns, Germs, and Steel. But if some of the other speech at issue is of lesser value,

that is of no moment, since the state cannot justify regulation on the assumption

that “the speech is not very important,” United States v. Playboy Ent. Group,

Inc., 529 U.S. 803, 826 (2000), or that it lacks redeeming social importance. United

States v. Stevens, 559 U.S. 460, 479 (2010) (“Most of what we say to one another

14

lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic

value’ (let alone serious value), but it is still sheltered from government

regulation.”) (emphasis in original).

C.

This Court must consider the importance of the petitioner’s

First Amendment rights and whether the respondents’

censorship actually serves any legitimate penological interest

The respondents would have this Court treat its Turner analysis of this case

as it treats equal protection rational basis analyses: as long as there is some

theoretical interest underlying a government’s limit on a citizen’s liberty, courts will

uphold that limit, whether or not it is based on an actual interest, and even if it is

wildly overbroad or underinclusive. See, e.g., Heller v. Doe, 509 U.S. 312, 320-21

(1993). This is an incorrect statement of the law and a dangerous precedent to set.

a. Turner requires more than a rational basis analysis

Instead of applying near-dispositive deference to prison policies, this Court in

Turner instructed that lower courts must engage in a true balancing test that

weighs prisons’ concerns against inmates’ rights. Turner, 482 U.S. at 85 (adopting a

unique “standard of review for prisoners’ constitutional claims that is responsive

both to the policy of judicial restraint . . . and [to] the need to protect constitutional

rights”) (internal quotes omitted); Salaam v. Lockhart, 905 F.2d 1168, 1171 n. 6 (8th

Cir. 1990) (“[r]easonableness in this [Turner] context refers . . . to the balance struck

between the needs of the prison administrators and the constitutional rights of

prisoners.”).

15

Any deference given to prisons, furthermore, must not be “toothless.”

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989). Instead, courts must look to

Turner’s 4-part test and decide (1) whether the restriction is reasonably related to a

legitimate penological objective and operates in a neutral manner to further that

objective; (2) whether alternative means of exercising the asserted right remain

open to prison inmates; (3) what impact the accommodation of the constitutional

right will have on other prisoners, staff, and resources; and (4) whether there are

any ready alternatives that would allow the prisoner to exercise his rights at a

minimal cost to the institution. Turner, 482 U.S. at 89-90.

With these four factors, the Turner Court rejected the deference given to

governmental actions under traditional rational basis review. Unlike under rational

basis analysis, prisons in the Turner context cannot rely on general or conclusory

statements regarding their interests. Shimer v. Washington, 100 F.3d 506, 510 (7th

Cir. 1996) (“[t]he prison administration cannot avoid court scrutiny by reflexive,

rote assertions” but must instead demonstrate that the interests asserted are the

actual bases for their regulations) (internal quotes omitted); Allen v. Coughlin, 64

F.3d 77, 80 (2d Cir. 1995) (“[c]onclusory assertions” that prison security would be

threatened by news clippings not sent directly from the publisher “fall short” of

establishing the claimed danger from newspaper clippings); Walker v. Sumner, 917

F.2d 382, 385, 386 (9th Cir. 1990) (“Prison authorities cannot rely on general or

conclusory assertions” but must “first identify the specific penological interests

involved and then demonstrate both that those specific interests are the actual

16

bases for their policies and that the policies are reasonably related to the

furtherance of the identified interests.”).

It was the Turner Court itself that struck down a prisoner marriage

restriction despite testimony from prison officials that the ban served the objectives

of security and rehabilitation. 1 This Court held that the government failed to

demonstrate that the marriage restriction was “reasonably related to the

articulated rehabilitation goal” because “the rule sweeps much more broadly than

can be explained by petitioners’ penological objectives.” Turner, 482 U.S. at 98.

Moreover, because “[t]here [were] obvious, easy alternatives” that accommodated

the right to marry while imposing a de minimis burden on security, the regulation

“represent[ed an unconstitutional] exaggerated response to security objectives.” Id.

at 97-98.

The requirement that “exaggerated responses” be avoided is another

hallmark of the Turner analysis. This Court has required its district courts under

Turner to engage in an “independent review of the evidence” to be certain that a

prison regulation is not an “exaggerated response” to prison concerns. Salaam, 905

F.2d at 1171. Unlike under traditional rational basis review, this Court “cannot

validate prison regulations that are clearly broader in their scope or significantly

more burdensome in effect than reasonable alternatives.” Id.

1 Prison officials testified in Turner that the regulation served security concerns because prisoner

marriages would result in “love triangles” that might lead to violent confrontations between inmates,

and that it served rehabilitation concerns because women prisoners needed to develop skills of selfreliance which would be undercut by marriage. Turner, 482 U.S. at 98-99.

17

Finally, unlike equal protection rational basis, it is the respondents’ duty —

not the petitioner’s — to demonstrate that a legitimate penological interest is

actually protected by their censorship policy. See, e.g., Shimer, 100 F.3d at 509

(“[t]he prison administration must proffer some evidence to support its restriction”);

Frazier v. Dubois, 922 F.2d 560, 562 (10th Cir. 1990) (reversing dismissal of a

complaint alleging retaliatory transfer for exercise of First Amendment rights

where the state asserted no reasons for the transfer); Swift v. Lewis, 901 F.2d 730,

732 (9th Cir. 1990) (“[P]rison officials must at least produce some evidence that

their policies are based on some legitimate penological justifications . . . If it were

otherwise, judicial review of prison policies would not be meaningful.”); Walker, 917

F.2d at 385 (quoting Turner, 482 U.S. at 89) (“Prison officials must ‘put forward’ a

legitimate governmental interest to justify their regulation . . . and must provide

evidence that the interest proffered is the reason why the regulation was adopted or

enforced.”) (emphasis in original).

b.

The respondents suggest a precedent that would eradicate

prisoners’ First Amendment rights

The respondents’ version of the law, entailing vast deference to the state

based on rote, conclusory assertions of penological interest, would set a dangerous

precedent if applied by this Court.

First, it would effectively eradicate inmates’ constitutional rights. The

rational basis deference that the respondents advance would equate the restriction

of First Amendment rights with an ocean of mundane restrictions on prisoners’

activities that do not touch upon the Constitution. Prisons could censor history

18

books with the same ease that they regulate how many haircuts an inmate may

receive each month. Prisons could prevent inmates from sending letters to their

loved ones but face the same level of judicial scrutiny they would if they chose to

serve donuts only to inmates who have a good disciplinary record. Surely First

Amendment rights demand more protection than haircuts and donuts. If they do

not, then prison officials would, in effect, be able to “set constitutional standards by

fiat.” Whitney v. Brown, 882 F.2d 1068, 1074 (6th Cir. 1989). 2

At least one downstream effect of the respondents’ position is alarming. If

First Amendment rights are eradicated at the first incantation of legitimate

penological interests, then other constitutional rights are sure to fall. Indeed, the

Eighth Amendment’s protection against cruel and unusual punishment would be

under threat, since “there is a logical connection between prison discipline and the

use of bullwhips on prisoners.” Turner, 482 U.S. at 101 (Stevens, J., concurring in

part and dissenting in part).

2 Under a Turner-as-traditional-rational-basis theory, “lawmakers who believe that books on Russian

history may lead to disrespect for the United States may ban those books for prisoners; lawmakers

who hold pro-life views may prevent prisoners from reading publications describing Roe v. Wade; and

lawmakers who hold an antiquated view of the role women should play in society may ban the

distribution in prisons of publications with feminist themes.” Amatel v. Reno, 156 F.3d 192, 210 (D.C.

Cir. 1998) (Wald, J., dissenting).

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D.

The four Turner factors compel a finding for the petitioner

The respondents’ policy fails all four Turner factors.

a.

The prison’s censorship program is not reasonably related

to a legitimate and neutral objective

i.

The respondents establish no reasonable relation

between the prison’s policy and legitimate penological

interests, and even stonewalled the petitioner’s attempts

to discover such a relation

It is indisputable, of course, that a censorship policy cannot survive scrutiny

if the governmental objective underlying the regulation is not “legitimate.” Turner,

482 U.S. at 89. The policy must also be reasonably related to an actual problem.

While the respondents’ interests are legitimate in the abstract, in this case they are

unconnected to any real problem. They are post hoc inventions, designed only to

save the respondents’ doomed case. We know this because when the petitioner

issued discovery requests that could have established a reasonable relationship, the

respondents refused to respond. Their own recalcitrance left the record bereft of any

evidence that might have helped their case.

The global and exaggerated coverage of the policy’s prohibition illustrates

further why it bears no reasonable relationship to any legitimate penological

interest. The respondents certainly cannot claim that banning images of the Sistine

Chapel, Christian religious iconography, National Geographic, Wired, and Guns,

Germs, and Steel bear any such reasonable relationship. But the implications of

SDSP’s prohibition are much more startling. The respondents, in fact, admitted in

court that their policy should result in a ban of the Holy Bible. In this light,

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consider that in 2000, a district court in Wisconsin considered a prison’s ban on

sexually explicit material. Aiello v. Litscher, 104 F.Supp.2d 1068 (W.D.Wisc. 2000).

The court in that case noted that the prison’s ban should logically include the Holy

Bible and Walt Whitman’s work for the passages they contained:

•

“. . . he saw a woman washing herself; and the woman was very

beautiful to look upon . . . . she came in unto him, and he lay with

her . . .” See, e.g., 2 Samuel 11:1–5 (King James).

•

“Thy navel is like a round goblet . . . thy belly like wheat set about with

lilies . . . thy stature is like to a palm tree, and thy breasts to clusters

of grapes . . . I will take hold the boughs thereof . . .” Song of

Solomon, 7:1–10 (King James)

•

“Copulation is no more rank to me than death is. . . . If I worship one

thing more than another . . . firm masculine coulter, it shall be you.”

See Walt Whitman, Song of Myself, § 24 (Galway Kinnell ed., Ecco

Press 1987)

Id.

More recently, a district court in West Virginia echoed the Wisconsin court.

Considering a prison ban that was not as globally restrictive as the policy at issue

in this case, Cline v. Fox, 319 F.Supp.2d 685, 688 (N.D.W.Va. 2004), that court

noted that “literary classics like George Orwell’s 1984 and religious texts like the

Bible,” id. at 692, were still banned under the policy.

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West Virginia observed that “[i]t is difficult to understand how denying

inmates access to such books promotes security, prevents sexual assaults, or

furthers rehabilitation.” Id. And Wisconsin noted that it defied “expert testimony

[and] common sense” to think that the global ban on a category of speech could

serve any legitimate penological interest. Aiello, 104 F.Supp.2d at 1081-82.

ii.

The prison’s ban is content-based, not neutral

Prison censorship programs must be “operated in a neutral fashion, without

regard to the content of the expression.” Thornburgh, 490 U.S. at 415 (quoting

Turner, 482 U.S. at 90).

There are two ways that a prison censorship policy may be deemed neutral. It

may be neutral on its face, or the government may defend a content-based

restriction by proving that the restriction is “unrelated to the suppression of

expression.” Id. at 415-16.

1.

The policy is not facially neutral

A statute is facially content-neutral if it makes no reference to content, or if,

although it may refer to content, speech is in fact regulated only by reference to

criteria other than content. Thus, for example, restrictions allowing prisoners to

receive hardcover books only from publishers have been upheld as content-neutral

because they make no reference to the content of the books whatsoever. Bell, 441

U.S. 520.

Policies may be facially neutral if they provide for content-based bans in

conjunction with case-by-case assessments of materials in light of legitimate

22

penological interests. The Thornburgh Court, for example, considered a ban on

material that “depicts, describes or encourages activities which may lead to the use

of physical violence or group disruption”; material which “encourages or instructs in

the commission of criminal activity”; and “sexually explicit material which by its

nature or content poses a threat to the security, good order, or discipline of the

institution, or facilitates criminal activity.” Thornburgh, 490 U.S. at 405 n.5.

That Court upheld the policy because the policy expressly forbade the

rejection of a publication “solely because its content is religious, philosophical,

political, social or sexual, or because its content is unpopular or repugnant,” and

authorized the rejection of any given publication “only if it is determined

detrimental to the security, good order, or discipline of the institution or if it might

facilitate criminal activity.” Id. at 404-05.

The policy at issue in the instant case is clearly facially content-based: it

imposes a global prohibition on sexually explicit material, and this Court has held

that such a restriction of “sexually explicit” material “is the essence of content-based

regulation.” Playboy Entertainment Group, Inc., 529 U.S. at 811-12. This is a ban

whose constitutionality this Court should treat with skepticism. Giano v.

Senkowski, 54 F.3d 1050, 1056 (2d Cir. 1995) (“prohibiting all erotica might be” an

exaggerated response to institutional concerns); Dawson v. Scurr, 986 F.2d 257, 261

(8th Cir. 1993); Pepperling v. Crist, 678 F.2d 787, 791 (9th Cir. 1982) (“[a] blanket

prohibition against receipt of publications by any prisoner carries a heavy

presumption of unconstitutionality.”).

23

2.

The ban is focused on suppressing expression, not

furthering any legitimate penological interest

There is no question that a regulation can be neutral under Thornburgh,

even when it draws distinctions based on content, if the regulation furthers an

interest “unrelated to the suppression of expression.” Thornburgh, 490 U.S. at 415

(quoting Martinez, 416 U.S. at 413); see also City of Renton v. Playtime Theaters,

Inc., 475 U.S. 41, 47-48 (1986) (holding that a regulation is neutral if it is “unrelated

to the suppression of free expression,” that is, if the regulation is not aimed at the

speech itself but at the “secondary effects” of such speech). It is the government’s

burden to demonstrate that the purpose underlying the restriction of speech is

unrelated to the content of that speech. “[E]ven when a government supplies a

content-neutral justification for the regulation, that justification is not given

controlling weight without further inquiry.” Whitton v. City of Gladstone, 54 F.3d

1400, 1406 (8th Cir. 1995).

Nominally “content-based” regulations may be deemed neutral if the

government can establish (1) negative effects of the speech unrelated to its content,

and (2) that the regulation was enacted in direct response to those effects. City of

Renton, 475 U.S. at 44 (to support an ordinance, the government “held public

hearings, reviewed the experiences of Seattle and other cities, and received a report

from the City Attorney’s Office advising as to developments in other cities.”); Turner

Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 646-47 (1994) (determining that

Congress’s purpose in enacting statute regulating cable industry was unrelated to

the suppression of cable companies’ expression by looking to the “unusually detailed

24

statutory findings” and to the design and operation of the statute, which showed

that purpose was to protect non-cable households from loss of broadcasting service);

American Library Ass’n v. Reno, 33 F.3d 78, 88-89 (D.C. Cir. 1994) (obligations on

producers of adult material upheld because there was evidence in the record

demonstrating that Congress was responding to a very specific detailed request

from the Attorney General’s Commission on Pornography for legislation that would

enhance the ability of law enforcement officials to prosecute those using children in

adult movies).

The respondents in the instant case established no such record. Quite the

contrary: when invited to do so in response to the petitioner’s discovery requests,

they demurred.

A neutral policy is workable and ready at hand. In 2015, in Murchison v.

Rogers, the Eighth Circuit considered a Missouri prison policy that banned

materials that “constitute a threat to the security, good order or [] discipline of the

institution; may facilitate or encourage criminal activity; may interfere with the

rehabilitation of an offender; [or material that] promotes, incites, or advocates

violence, disorder or the violation of state or federal law . . . . ” The policy explicitly

provided that “[c]orrespondence, printed or recorded materials, and pictures may

not be rejected because . . . the content is . . . sexual . . . or is unpopular or

repugnant . . . . ” 779 F.3d 882, 886 (8th Cir. 2015).

Unlike the Murchison policy, which was tied directly to legitimate penological

interests and explicitly protected inmates’ First Amendment rights, SDSP’s policy is

25

unmoored from its stated interests, and instead entails a lazy, global, content-based

ban on a constitutionally-protected category of speech.

Furthermore, the case-by-case review of each publication under consideration

that gave the Thornburgh Court “comfort” is absent here. 490 U.S. at 416. SDSP

employees are not required to make any individualized determinations at all, and

thus cannot make determinations with reference to a publication’s impact on any

legitimate penological interest. The policy, therefore, is wholly unlike the

restrictions the Eighth Circuit considered in Dawson, 986 F.2d 257.

In Dawson, the Eighth Circuit upheld a regulation that prohibited certain

prisoners from receiving sexually explicit material if prison administrators

determined that “the material is detrimental to the rehabilitation of an individual

inmate, based on psychological/psychiatric recommendation.” 986 F.2d at 259 n. 4.

As in Thornburgh, the regulation was deemed reasonably related to the

government’s interest in rehabilitation because the material was rejected or limited

with a focus on prison security and rehabilitation, and it was not a categorical ban.

Id. at 261.

b.

The prison’s censorship policy contains no alternative

means for exercising the right to receive, possess, and mail

sexually explicit materials.

The second Turner factor asks “whether there are alternative means of

exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90.

Clearly, policies that permit “a broad range of publications to be sent,

received, and read,” including those containing nudity and sexually explicit

26

material, Thornburgh, 490 U.S. at 418, will satisfy this factor. “[A] more broadly

restrictive rule against admission of incoming publications” might not pass

constitutional muster, since “[a]ny attempt to achieve greater consistency by

broader exclusions might itself run afoul of the second Turner factor.” Id. at 417

n.15 (citation omitted).

The instant case doesn’t involve a narrow policy — it involves a policy that

entirely shuts down inmates’ First Amendment rights. It even goes beyond sexually

explicit material and nudity to prohibit images in which an “excessive” amount of

skin is visible (whatever that means).

Countless cases show that prisons around the country are able to provide

alternative means. The Eighth Circiut upheld a policy that gave inmates access to

materials in a reading room and allowed them to have certain sexually explicit

materials in their cells. Dawson, 986 F.2d at 258-59. In Jones v. Salt Lake County,

the Tenth Circuit upheld a policy because it did “not prohibit sexually explicit prose

or pictures of clothed women/men.” 503 F.3d 1147, 1156 (10th Cir. 2007). In Mauro,

the Ninth Circuit upheld a policy because it permitted sexually explicit letters

between inmates and others as well as sexually explicit articles and photographs of

clothed females. 188 F.3d at 1061. In Amatel, the D.C. Circuit upheld a policy that

allowed inmates to possess “non-pictorial sexually explicit material.” 156 F.3d at

193. The U.S. Bureau of Prisons provides that wardens are not allowed to prohibit

materials “solely because [their] content is . . . sexual, or because its content is

unpopular or repugnant.” 28 C.F.R. § 540.71(b). Wardens must, furthermore, review

27

materials on a case-by-case basis. Id. § 540.71(c). The BOP regulation, finally,

provides that written text “does not qualify a publication as sexually explicit.”

Jordan v. Sosa, 654 F.3d 1012, 1017 (10th Cir. 2011).

c.

The respondents demonstrated absolutely no negative

impacts that accommodation of the right would have on

others in the prison

The third Turner factor concerns “the impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on the allocation of

prison resources generally.” 482 U.S. at 90. It asks whether a censorship policy

functions to avoid any negative “ripple effect” that will undermine the order and

security of the institution. Thornburgh, 490 U.S. at 418.

The respondents demonstrated no actual ripple effect and declined the

petitioner’s invitation in discovery to establish one. Instead, they provided only the

theoretical, conclusory suggestion that their global ban served legitimate

penological interests.

The respondents, furthermore, would be hard-pressed to show why

possession of many of the materials at issue don’t in fact further the prison’s

interests. See Cline, 319 F.Supp.2d at 694 (where the warden’s “arguments remain

conclusory and unpersuasive. He fails to explain how allowing inmates to read

books that have some literary value but describe sexual conduct will ‘create an

intolerable risk of disorder,’ even if the sexual references are de minimus . . . some

of the otherwise prohibited literature may benefit inmates.”). How could the

28

possession of the Bible, mainstream political and cultural publications, and

scholarly texts undermine the prison’s interests? The respondents refused to say.

d.

The former policy proves that there is an obvious, lessrestrictive alternative to the current censorship policy

The fourth factor in the Turner inquiry asks whether the regulation is an

unreasonable, “exaggerated response” based on “the existence of obvious, easy

alternatives . . . . that fully accommodate[] the prisoner’s rights at de minimis cost

to valid penological interests.” Turner, 482 U.S. at 90-91. It is the petitioner’s

burden to establish an alternative to the current policy. Dean v. Bowersox, 325

Fed.Appx. 470, 472 (8th Cir. 2009).

Leaving aside the countless policies around the country that have been

upheld repeatedly, and leaving aside the BOP’s regulations, the respondents

themselves supply the petitioner with the alternative: the policy that was in effect

prior to the current one. It was used for years with no demonstrable negative effect

on legitimate penological interests. It was changed in 2009, but no new danger

emerged then to force the change.

Furthermore, the respondents should not be heard to argue that the

petitioner has not met his burden, since the petitioner was stymied by the

respondents at every turn during discovery, hindering the petitioner’s ability to

produce any other alternative. He asked the respondents for the harms that the

current policy produced; they refused to respond, asserting that such a request was

irrelevant. But it certainly would be relevant to someone who is attempting to

formulate a reasonable, less-restrictive alternative policy that would adequately

29

address legitimate penological interests. In this regard, the respondents’ hands are

unclean.

E.

The policy restricts mail that inmates may send to noninmates, violating the rights of inmates and non-inmates alike

While Turner governs inmates’ receipt and possession of sexually explicit

material, Martinez governs policies that restrict inmates’ outgoing mail, destined

for people who are not in custody. Martinez, 416 U.S. at 408-09. Martinez

protections are higher than Turner protections because the penological interests at

issue are less urgent. Thornburgh, 490 U.S. at 411-12.

Such restrictive policies must meet two factors. First, they must “further an

important or substantial governmental interest unrelated to the suppression of

expression.” Second, they must be no more limiting of First Amendment freedoms

“than is necessary or essential to the protection of the particular governmental

interest involved.” Martinez, 416 U.S. at 414; see also Thornburgh, 490 U.S. at 413

(holding that Martinez continues to apply, post-Turner, to restrictions on outgoing

mail); Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (holding that Martinez

continues to apply to censorship of outgoing mail, even where the Turner standard

now applies to incoming mail).

In district court and on appeal to the Eighth Circuit, the respondents made

no argument to defend this aspect of SDSP’s policy. They have certainly not met

Martinez’s heightened standard.

30

II.

Relief requested

This Court should find that the policy is unconstitutionally overbroad and

thus facially unconstitutional.

CONCLUSION

This Court should hold that the respondents' "pornography" policy is

unconstitutionally overbroad, and therefore hold that it is facially violative of the

First Amendment.

Respectfully submitted,

&v,:vL{JhrW\gJ00/tf::sTEVEN R. MORRISON

Counsel of Record

The Morrison Law Practice

1526 Robertson Ct.

Grand Forks, North Dakota 58201

617-749-7817

steven.r.morrison@gmail.com

February 8, 2022

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