Opposition Brief — Charles E. Sisney, Petitioner v. Denny Kaemingk, Secretary, South Dakota Department of Corrections, et al.

No. 21-7105

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In The

Supreme Court of the United States

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CHARLES E. SISNEY,

Petitioner,

v.

DENNY KAEMINGK, in his official capacity as the South

Dakota Secretary of Corrections; DARIN YOUNG in his

official capacity as the Warden of the South Dakota State

Penitentiary, SHARON REIMANN, in her official capacity

as an SDSP designated Mail Room Officer; and CRAIG

MOUSEL, in his official capacity as an SDSP Property

Officer,

Respondents.

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On Petition for A Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

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BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

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JASON R. RAVNSBORG, South Dakota Attorney General

PAUL S. SWEDLUND, Solicitor General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

1302 East Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: 605-773-3215

paul.swedlund@state.sd.us

Attorneys for Respondents

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QUESTION PRESENTED

Whether the prohibition on sexually explicit content found in the

South Dakota Department of Corrections’ 2014 Pornography Policy is

“inconsistent with this Court’s jurisprudence on First Amendment

overbreadth” and hence facially unconstitutional?

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TABLE OF CONTENTS

SECTION

PAGE

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

SUMMARY OF THE ARGUMENT ........................................................10

ARGUMENT ...........................................................................................11

1. The SDDOC’s 2014 Policy Is Neither Unprecedented In

Scope Nor Inconsistent With This Court’s Jurisprudence

Regarding An Inmate’s First Amendment Rights .................... 11

2. The Subject Materials Prohibited By The 2014 Policy

Do Not Involve “High-Value” Speech Requiring This

Court’s Intervention To Protect The First Amendment....... 16

3. Sisney’s Petition Exaggerates The Importance Of The

Question Presented By Misrepresenting The Scope

And Effect Of The 2014 Policy .................................................... 20

CONCLUSION ........................................................................................27

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TABLE OF AUTHORITIES

CASES CITED

PAGE

Amatel v. Reno, 156 F.3d 192 (D.C.Cir. 1998) ................................................ 12, 19, 23

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).............................................. 11

Bd. of Tr. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) ....................................... 3

Beard v. Banks, 548 U.S. 521 (2006)..................................................................... 14, 15

Bell v. Wolfish, 441 U.S. 520 (1979) ...................................................................... 13, 14

Bell v. Young, 2018 WL 3148385 (D.S.D.) ................................................ 21, 24, 25, 26

Broaderick v. Oklahoma, 413 U.S. 601 (1973).............................................................. 4

Carpenter v. South Dakota, 536 F.2d 759 (8th Cir. 1976).............................. 11, 12, 23

Cline v. Fox, 266 F.Supp.2d 489 (W. Va. 2003) .......................................................... 19

Cody v. Loen, 2011 WL 13190202 (D.S.D.) ................................................................. 25

Cruz v. Beto, 405 U.S. 319 (1972) ................................................................................ 13

Fauconier v. Clarke, 257 F.Supp.3d 746 (W.D. Va.) ................................................... 25

Harris v. Bolin, 950 F.2d 547 (8th Cir. 1991) ............................................................. 25

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

515 U.S. 557 (1995) ................................................................................................... 11

Jones v. North Carolina Prisoner’s Labor Union, 433 U.S. 119 (1977) ......... 12, 13, 15

Lacy v. Reed, 2014 WL 4793934 (W.D. Ark.) .............................................................. 25

Larson v. Valente, 456 U.S. 228 (1982) ......................................................................... 8

Maday v. Dooley, 2018 WL 522319 (D.S.D.) ............................................................... 21

Maday v. Dooley, 2019 WL 4747058 (D.S.D.) ............................................................. 21

Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) ......................................................... 19

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Miller v. California, 413 U.S. 15, (1973) ............................................................... 17, 18

Pell v. Procunier, 417 U.S. 817 (1974) .................................................................. 13, 15

Procunier v. Martinez, 416 U.S. 396 (1974) .................................................... 13, 14, 23

Rodriquez v. Maricopa County Community College Dist.,

605 F.3d 703 (9th Cir. 2010) ..................................................................................... 12

Sable Comm. Of Cal., Inc. v. FCC, 492 U.S. 115 (1989)............................................. 11

Sisney v. Kaemingk, 15 F.4th 1181 (8th Cir. 2021) ............................................ Passim

Sisney v. Kaemingk, 886 F.3d 692 (8th Cir. 2018) ............................................. Passim

Stanley v. Georgia, 394 U.S. 557 (1969)...................................................................... 11

Street v. New York, 394 U.S. 576 (1969) ....................................................................... 4

Terminiello v. City of Chicago, 337 U.S. 1 (1949) ....................................................... 11

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............................................................ 9, 26

Turner v. Safley, 482 U.S. 78 (1987) ................................................................... Passim

United States v. Stevens, 559 U.S. 460 (2010) .............................................................. 9

Virginia v. Hicks, 539 U.S. 113 (2003) ........................................................................ 27

Wickner v. McComb, 2010 WL 3396918 (Minn.) ........................................................ 25

Wolff v. McDonnel, 418 U.S. 539 (1974)...................................................................... 12

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STATEMENT OF THE CASE

Since 1997, petitioner Charles Sisney has been serving a life sentence at

the South Dakota State Penitentiary (SDSP) for murdering his girlfriend.

Sisney v. Kaemingk, 886 F.3d 692 (8th Cir. 2018)(Sisney I ). During this time, he

has brought several civil rights actions. Id. at 694. It was “with the benefit of

this experience” that Sisney, on April 8, 2015, initiated the present action

raising a variety of challenges to the 2014 version of the South Dakota

Department of Corrections (SDDOC) Pornography Policy (2014 Policy). Id.

In 2015, officials at the SDSP rejected several items in Sisney’s incoming

mail. Sisney v. Kaemingk, 15 F.4th 1181 (8th Cir. 2021)(Sisney II ). The items

in question “included four issues of a comic-book series entitled Pretty Face

[which contains depictions of highly-sexualized teen-aged girls]; a reprint of the

iconic Coppertone advertisement featuring a puppy pulling at a little girl’s swim

bottoms; two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild

and Wanton Edition; a fine-art book entitled Matisse, Picasso and Modern Art in

Paris; and nine pictures of Renaissance artwork featuring nudity.” Id. at 1188.

Prison officials based their decision to reject the above items on the 2014 Policy

which prohibited Inmates from receiving “pornographic material.” Id.

The 2014 Policy defined “pornographic material” to include “books,

articles, pamphlets, magazines, periodicals, or any other publications or

materials that feature ‘nudity’ or ‘sexually explicit conduct.’” Id. at 1189.

Pursuant to the 2014 Policy, “Sexually Explicit” materials were said to include

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“written and/or pictorial, graphic depictions of actual or simulated acts” as well

as “individual pictures, photographs, drawings, etchings, writings or paintings of

nudity.” “Nudity” was defined in the 2014 Policy as “a pictorial or other graphic

depiction where male or female genitalia, pubic area, buttocks or female breasts

are exposed.” Id. Sisney, after having exhausted his administrative remedies,

initiated the present lawsuit in April 2015 alleging that the 2014 Policy was

unconstitutionally overbroad on its face or unconstitutional as applied to the

items enumerated above. Id. at 1188. In his prayer for relief, Sisney requested

injunctive relief requiring the SDDOC to prohibit only “traditional forms of

pornography and obscene materials.” Sisney I, 886 F.3d at 695.

The district court referred the parties’ cross motions for summary

judgment to a magistrate judge, who issued a Report and Recommendation, on

May 25, 2016, that “found largely in favor of Sisney.” Id. at 696. According to

the magistrate judge, the 2014 Policy was “much more sweeping and

comprehensive than its predecessor” which was analyzed in King v. Dooley, CIV.

00-4052 (D.S.D. June 16, 2003). Sisney I, 886 F.3d at 696. The magistrate judge

found that “The King policy limited ‘sexually explicit’ to pictorial

representations, while the current policy includes pictures, written material, and

graphic depiction.” Pet. App. at 109. In finding that “this new and overly broad

policy goes far beyond what is necessary and is unconstitutional,” the district

court later stated that “[t]he current policy is applicable to written materials and

that was not the case in King.” Pet. App. at 64. The district court, in granting

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summary judgment in favor of Sisney, also found that “[t]he current policy

amounts to an all or nothing policy while King, due to its definition of ‘features,’

looked at the item in question in its entirety rather than, for example, censoring

an entire book because of one page in the book.” Pet. App. at 64.

Although finding that “the current [2014] policy must be declared facially

invalid,” the magistrate judge nonetheless “proceeded to the as-applied

challenges, offering no explanation for doing so beyond an unsupported assertion

that the ‘DOC policy may be enforced insofar as it comports with the policy

approved of in King.’” Sisney I, 886 F.3d at 696. Although the district court, in

its Order filed on September 29, 2016, “voiced concern about the [Report and

Recommendation’s] unique approach of resurrecting and applying the 2000

Policy . . . seemingly accepted it nonetheless.” Id. “Despite its misgivings,” the

district court applied the 2000 Policy upheld in King and found in favor of Sisney

as to each of the rejected materials with the exception of the Pretty Face comics.

Id.

On appeal, the Eighth Circuit Court of Appeals found that “[i]t is not the

usual judicial practice, however, nor do we consider it generally desirable, to

proceed to an overbreadth issue unnecessary – that is, before it is determined

that the statute would be valid as applied.” Id. at 698, citing Bd. of Tr. of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989). As further found by the court,

“[i]ndeed, the Supreme Court has long recognized that the resort to overbreadth

doctrine ‘is, manifestly, strong medicine,’ and as such, ‘[i]t has been employed . . .

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sparingly and only as a last resort.’” Id., citing Broaderick v. Oklahoma, 413

U.S. 601, 613 (1973). While noting that Fox and its progeny do not require

courts to resolve as-applied challenges before reaching claims of facial

unconstitutionality, the court determined that “several aspects of this case

militate in favor of ‘resist[ing] the pulls to decide the constitutional issues . . . on

a broader basis than the record before us imperatively requires.’” Id., citing

Street v. New York, 394 U.S. 576, 581 (1969). According to the court, “the need

for restraint is only amplified here, given that both federalism and separation-ofpowers concerns are implicated.” Id., citing Turner v. Safley, 482 U.S. 78, 84-85

(1987).

In vacating the Order issued by the district court, on September 29, 2016,

granting summary judgment in favor of Sisney, the Eighth Circuit held that “we

cannot adopt the district court’s as-applied analysis because it was error to

resurrect and apply the 2000 Policy.” Id. at 699. As noted by the court “[t]his

was not the policy that Sisney actually challenged, nor was it the authority

under which SDSP staff withheld the rejected materials.” The court stated that

“[i]n light of this error, we believe the best course is to vacate the summary

judgment order in its entirety and allow the district court to reevaluate Sisney’s

as-applied claims based on the 2014 Policy – the version he actually challenged.”

Id.

On remand, the district court rejected Sisney’s as-applied challenges to

the Pretty Face comics and the Coppertone advertisement but sustained his as4

applied challenges to the other items. Sisney II, 15 F.4th at 1188. With regard

to Sisney’s overbreadth challenge, the district court concluded that the 2014

Policy was overbroad but determined that it was “possible to remedy its

constitutional defects without enjoining its enforcement in toto.” Id. at 1189. On

the premise that “[s]exually explicit conduct is far removed from simple nudity,”

the district court undertook to draft a “hypothetical amended version of the

Policy.” Id.

According to the district court, “banning simple nudity which has no

component of being sexually explicit as defined by the Policy, has no reasonable

relation to any legitimate penological interests.” Pet. App. at 40. Believing that

“to ban simple nudity, or a single sexual reference in a publication [was] overly

broad and contrary to the First Amendment,” the district court proceeded to

rewrite the 2014 Policy so as to delete or remove any reference to “nudity” from

the definition of “sexually explicit” or “pornographic.” Sisney II, 15 F.4th at

1189. In the view of the district court, the 2014 Policy was rationally related to

legitimate penological interests “only with the removal of nudity from the

definitions of pornographic material and what is sexually explicit.” Pet. App. at

39.

The district court undertook the drastic measure of rewriting the 2014

Policy even though there had never been any question(s) raised, prior thereto,

regarding the inclusion of “nudity” in the definition of either “sexually explicit”

or “pornographic material.” The record clearly reflects that the definition of both

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terms remained the same as previously defined in the King Policy.

“Pornographic Material,” as previously defined, included “Books, pamphlets,

magazines, periodicals, or any other publications that graphically feature[d]

nudity.” Pet. App. at 105. “Nudity” was also included, under the King Policy, in

the definition of “Sexually Explicit.” Pet. App. at 106. These definitions,

therefore, were not among the “sweeping” or “significant” differences previously

referred to and relied on when initially finding that “this new and overly broad

policy goes far beyond what is necessary.” Pet. App. at 64, 108-10. It was only

on remand that the district court, for the first time, expressed concern that

banning simple nudity “has no reasonable relation to any legitimate penological

interests.” Pet. App. at 40.

The “hypothetical amended version of the Policy,” as drafted by the

district court, also constituted drastic departure from the 2014 Policy

promulgated by the SDDOC by incorporating a definition of “feature” or

“featured.” Sisney II, 15 F.4th at 1189. The district court undertook to rewrite

the 2014 Policy based on its apparent concern that “application of the DOC

Policy in practice is that ‘feature’ now means a one-time appearance of a single

nude picture or a single sexually oriented passage in a publication, either of

which will result in a banning of that item.” Pet. App. at 37-38. Although

finding that “when considering the policy as applied, there is no vagueness to the

current DOC Policy,” the district court went on to indicate that “without any

definition of ‘feature’ or ‘features’ it [could] be argued that the policy as stated is

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vague.” Pet. App. at 38. In the opinion of the district court, “[i]t is a huge leap

for the current policy to ban written material with sexual content where the

sexual content is a natural part of the written book as opposed to sexual

material being the feature of the publication.” Pet. App. at 40. As amended by

the district court, the 2014 Policy would only prohibit or ban material if it

“routinely and regularly featured pornography, or in the case on one-time issues,

promoted itself based on pornographic content.” Sisney II, 15 F.4th at 1189.

The 2014 Policy, as rewritten by the district court to remove “nudity” from

the list of pornographic materials, is obviously much “narrower than before.” Id.

at 1202. Respondents, “aggrieved by the now-watered-down policy,” therefore

appealed the district court’s ruling(s). Id. On appeal, the Eighth Circuit vacated

the district court’s grant of summary judgment for Sisney on his claim that the

Policy’s prohibition on nudity is overbroad. Id. The court also “vacate[d] the

remedy issued in connection with this summary judgment ruling” and

“remand[ed] with instructions to dismiss this claim for lack of subject-matter

jurisdiction.” Id. In vacating the district court’s Order, the court found that “a

favorable decision on Sisney’s claim that the prohibition on nudity is overbroad

would not redress any of Sisney’s remaining injuries” and that his claim that the

prohibition on nudity was overbroad was therefore moot. Id. at 1196.

As found, however, by Circuit Judge Stras, concurring in part and

dissenting in part, “[n]othing about his case [was] moot.” Id. at 1202. According

to Judge Stras, “[w]hat gets lost . . . is that the overbreadth claim has never been

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moot and prison officials, rather than Sisney, filed the appeal.” Id. “The

aggrieved parties now are the prison officials, so the question for [the court] is

whether we can give them ‘any effective relief’ if we decide ‘the [appeal] in [their]

favor.’” Id. at 1203. In that regard, Judge Stras correctly noted that “[t]he

prison officials . . . challenged the district court’s overbreadth ruling because

they want to ban additional items containing nudity that are now available to

prisoners under the narrowed policy.” Id. If, as found by Judge Stras, the court

“agree[d] with [prison officials] that Sisney failed to meet his burden of proving

that the prison’s original policy was substantially overbroad, then not only will

they be able to potentially withhold additional items from Sisney, but from other

inmates too.” Id., citing Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). In

stating that he would “reach exactly that conclusion,” Judge Stras found that

Sisney failed to show that “a substantial number of [the policy’s] applications are

unconstitutional, [when] judged in relation to [its] plainly legitimate sweep.” Id.

at 1204.

With regards to the ban, under the 2014 Policy, on written material

containing sexual content, the court found that “Sisney’s claim that the

prohibition on sexually explicit content [was] overbroad [was] not moot.” Id. at

1197. According to the court, “Sisney’s claim that the prohibition on sexually

explicit content is overbroad remains a live case or controversy thanks to our

reversal of the district court’s ruling on his as-applied challenges regarding the

erotic novels.” Indicating that “rather than necessitate a third appeal in this

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case,” the court opted to “settle the matter here.” As found by the court, “Sisney

failed to show that the Policy’s prohibition on sexually explicit content is

‘substantially overbroad.’” Sisney II, 15 F.4th at 1199, citing United States v.

Stevens, 559 U.S. 460, 482 (2010).

Although noting that, “even construed narrowly, the Policy’s prohibition

of sexually explicit content extends to some literary works that many hold in

high esteem,” the Eighth Circuit Court of Appeals found that “[i]n most cases,

however, censoring these works will pass constitutional muster for the same

reasons that censoring Thrones of Desire and Pride and Prejudice: The Wild and

Wanton Edition did.” Id. In rejecting Sisney’s as-applied challenge to the ban

on these two books, the court had no difficulty in finding that “[b]oth erotic

novels at issue here contain graphic descriptions of sexual acts whose primary

purpose is clearly intended to cause sexual arousal in the reader.” Id. at 1192.

In finding that Sisney’s facial challenge “fail[ed] on the merits,” the court was

“unpersuaded that consistent application of the prohibition as we have construed

it will limit inmates’ access to literature so severely that the defendants can no

longer be said to ‘permit a broad range of publications to be sent, received, and

read.’” Id. at 1199, citing Thornburgh v. Abbott, 490 U.S. 401, 418 (1989). The

court, therefore, reversed the district court’s grant of summary judgment for

Sisney on his claim that the Policy’s prohibition on sexually explicit content was

overbroad and remanded for entry of summary judgment for Respondents on his

claim. Id. at 1201. Sisney now petitions for a writ of certiorari for review of the

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Eighth Circuit’s decision contending that the 2014 Policy is “one of

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

the United States.”

SUMMARY OF ARGUMENT

Sisney’s petition for writ of certiorari should be denied for three

reasons:

1. The petition does not present a question of extreme importance.

The Eighth Circuit’s decision rests on settled analytical and legal

principles that do not conflict with the decisions of other Circuit Courts or

this Court in this area of the law. Contrary to Sisney’s polemics, the 2014

Policy is not “unprecedented in scope” or “inconsistent with this Court’s

jurisprudence on First Amendment overbreadth.”

2. Sisney’s assertions to the contrary, the subject materials prohibited

by the 2014 Policy do not involve “high-value” speech. Granting a petition

for writ of certiorari in this case is not needed in order to protect the First

Amendment.

3. Sisney’s petition makes a number of material misstatements which

exaggerate the scope and effect of the policy, such as that the 2014 Policy

prohibits inmates from “possessing and reading the Holy Bible.” Petition

at 1. Sisney’s misstatements create a false impression of the importance

of the question presented by this case and a false urgency concerning the

need for this Court’s intervention.

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ARGUMENT

1. The SDDOC’s 2014 Policy Is Neither Unprecedented In Scope Nor

Inconsistent With This Court’s Jurisprudence Regarding An

Inmate’s First Amendment Rights

Sisney, in arguing that inmates such as himself have a First Amendment

right to access sexually explicit material, relies on this Court’s holding in Stanley

v. Georgia, 394 U.S. 557, 564 (1969), which held that the protection of obscenity

is “fundamental to our free society.” Petition at 10. According to Sisney,

“[s]exual expression which is indecent but not obscene is protected by the First

Amendment.” Sable Comm. Of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

Citing Carpenter v. South Dakota, 536 F.2d 759, 761 (8th Cir. 1976), Sisney even

goes so far as to suggest that inmates “clearly have a right to receive” sexually

explicit publications. Petition at 11.

Invoking the “general principle [that] the First Amendment bars the

government from dictating what we see or read or speak or hear” Sisney,

contends that the protection(s) afforded under the First Amendment “extends to

unpopular speech as much as any other type of speech.” Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 245 (2002); Hurley v. Irish - American Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557, 574 (1995); Petition at 12, 13. He

maintains that free 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.” Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949). “The right to provoke, offend and shock,” according to Sisney, “lies at the

11

core of the First Amendment.” Rodriquez v. Maricopa County Community

College Dist., 605 F.3d 703, 708 (9th Cir. 2010); Petition at 13.

Sisney’s reliance on the foregoing cases is misplaced for the simple reason

that Sisney’s case does not implicate the rights of persons living in a “free

society.” While people at large in a free society have rights to receive sexually

explicit materials provided they are not obscene, First Amendment

jurisprudence has rejected the premise that there is “some minimum entitlement

to smut in prison.” Amatel v. Reno, 156 F.3d 192, 201 (D.C.Cir. 1998). Sisney’s

“status as a prisoner mandate[s] a different result” than if he were out free in

society. Carpenter, 536 F.2d at 761, 763 (finding that whether items such as a

Buddhist Sex Manual and a Complete Adult Mail Order Catalog were

detrimental to an inmate’s rehabilitation was “well within the discretion” of

prison administrators).

This principle was affirmed by this Court in Jones v. North Carolina

Prisoner’s Labor Union, 433 U.S. 119, 129 (1977), where it was said that

“[p]risons, it is obvious, differ in numerous respects from free society.” To begin

with, they “are populated involuntarily by people who have been found to have

violated one or more of the criminal laws established by society for its orderly

governance.” Id. In “seeking a mutual accommodation between institutional

needs and objectives (of prisons) and the provisions of the Constitution that are

of general application,” this Court has “repeatedly recognized the need for major

restrictions on a prisoner’s rights.” Id., citing Wolff v. McDonnel, 418 U.S. 539,

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561-52 (1974). These restrictions have “applied as well where First Amendment

values were implicated.” Id., citing Procunier v. Martinez, 416 U.S. 396 (1974).

Respondents certainly understand that “prison walls do not form a barrier

separating inmates from the protections of the Constitution.” Turner v. Safley,

482 U.S. at 84 (1987), citing Procunier, 416 U.S. at 405. Respondents, however,

submit that “[s]imply because prison inmates retain certain constitutional rights

does not mean that these rights are not subject to restriction and limitations.”

Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). This Court has repeatedly stated

the “familiar proposition” that “lawful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a retraction justified by

the considerations underlying our penal system.” Pell v. Procunier, 417 U.S.

817, 822 (1974), citing Cruz v. Beto, 405 U.S. 319, 321 (1972); see also Jones, 433

U.S. at 125. The fact of confinement and the needs of the penal institution

“impose limitations on Constitutional rights, including those derived from the

First Amendment, which are implicit in incarceration.” Id. As was found in

Jones, 433 U.S. at 129, “The invocation of the First Amendment, whether the

asserted rights are speech or associational, does not change this analysis.” It

has therefore been said that a prison inmate “only retains those First

Amendment rights that are ‘not inconsistent with his status as a prisoner or

with the legitimate penological objective of the corrections system.’” Pell, 417

U.S. at 822. It is thus well established that the Constitution “permits greater

13

restriction of such rights in a prison than it would allow elsewhere.” Beard v.

Banks, 548 U.S. 521, 528 (2006), citing Turner, 482 U.S. at 84-85.

Yet another principle identified in Martinez, 416 U.S. at 405, was the

recognition that “courts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform.” Turner, 482 U.S. at 84. As

acknowledged in Martinez, 416 U.S. at 404-05, “[t]he problems of prisons in

America are complex and intractable, and, more to the point, they are not

readily susceptible of resolution by decree.” It was said that “running a prison is

an inordinately difficult undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly within the province of the

legislature and executive branches of government.” Turner, 482 U.S. at 85,

citing Martinez, 416 U.S. at 405. Prison administration is thus a “task that has

been committed to the responsibility of those branches, and separation of powers

concerns counsel a policy of judicial restraint.” As has been found by this Court,

“Where a state penal system is concerned, federal courts have . . . additional

reason to accord deference to the appropriate prison authorities.” Id., citing

Martinez, 416 U.S. at 405.

This is especially true in matters of institutional security. Maintaining

institutional security and preserving internal order are essential goals that may

require limitation or restriction of the retained Constitutional rights of convicted

prisoners. Bell, 441 U.S. at 546. As recognized by this Court, “[j]udgments

regarding prison security are peculiarly within the province and professional

14

expertise of prison officials.” Turner, 482 U.S. at 86, citing Pell, 417 U.S. at 827.

In the absence of substantial evidence in the record to indicate that officials have

exaggerated their response to these considerations, courts should ordinarily

defer to their expert judgment in such matters. Id., citing Pell, 417 U.S. at 827.

Lower courts have been said to have “gotten off on the wrong foot . . . by not

giving appropriate deference to the decisions of prison administrators and

appropriate recognition to the peculiar and restrictive circumstances of prison

confinement.” Id., citing Jones, 433 U.S. at 125.

In Turner, 482 U.S. at 89, this Court stated that “[i]f Pell, Jones and Bell

have not already resolved the question posed in Martinez, we resolve it now.” It

again affirmed the principle that “[w]hen a prison regulation impinges on an

inmate’s Constitutional rights, the regulation is valid if it is reasonably related

to legitimate penological interests.” Turner, 482 U.S. at 89; Beard, 548 U.S. at

528. This deferential standard, according to Turner, was necessary “if prison

administrators . . . and not the courts [are] to make the difficult judgments

concerning institutional operations.” Turner, 482 U.S. at 89. In none of the

above cases did this Court “apply a standard of heightened scrutiny but instead

inquired whether a prison regulation that burdens fundamental rights is

‘reasonably related’ to legitimate penological objectives and whether it presents

an ‘exaggerated response’ to those concerns.” Id. at 87; Beard, 548 U.S. at 528.

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2. The Subject Materials Prohibited By The 2014 Policy Do Not

Involve “High-Value” Speech Requiring This Court’s

Intervention To Protect The First Amendment

In arguing that the 2014 Policy is an “exaggerated response” to security

concerns, Sisney would have this Court believe that “there is virtually no actual

pornography at issue in this case.” Petition at 9. He alleges that “the

overwhelming amount of texts prohibited are ‘high-value texts’ that are not

prohibited under Turner.” Petition at 9. According to Sisney, “[v]irtually none of

the texts at issue are what people, applying common sense, would refer to as

‘pornography.’” Petition at 3. He argues that inmates “will no longer be sure

that they can read Parents magazine, in preparation for their release to care for

their families” and “will no longer have confidence that their books and

magazines on yoga and Buddhism will come to them unimpeded.” Petition at 1.

None of the publications referenced in Sisney’s petition were actually

before the district court. The publications in question were only two erotic

novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton

Edition. Pet. App. at 61, 73; see also Sisney I, 886 F.3d at 695; Sisney II, 15

F.4th at 1188. Yet, Sisney’s petition makes no mention of these “novels.” Given

the graphically sexual content of Thrones of Desire and Pride and Prejudice: The

Wild and Wanton Edition, it is understandable why Sisney wants to talk instead

about Parents magazine and Buddhist texts. Skimming the pages of these

“novels” puts the lie to Sisney’s claim that “[v]irtually none of the texts at issue

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are what people, applying common sense, would refer to as ‘pornography.’”

Petition at 3.

As their titles reflect, Sisney’s books promote themselves as vehicles for

accessing graphic depictions of wanton sexuality and the fulfillment of sexual

desires. The plots of Sisney’s books exist only as vehicles to introduce explicit

descriptions of sex acts on pretexts barely less subtle than “I’m the plumber, I’m

here to fix the sink.” As such, they are certainly obscene in the Miller v.

California, 413 U.S. 15, 24, (1973), sense of works that, taken as a whole, appeal

to the prurient interest without any serious literary, artistic, political or

scientific value.

With respect to Thrones of Desire, the magistrate judge below had no

difficulty in finding that “[p]arts of all of the short stories clearly fit the current

definition of ‘sexually explicit’ writing.” Pet. App. at 76. The fact that Thrones of

Desire contains passages that the Eighth Circuit elected “not [to] reprint here” in

its decision says all one really needs to know about that “novel.” Sisney II, 15

F.4th at 1192, n.3. If explicit sexuality were integral to fantasy literature, one

wonders how J.R.R. Tolkien managed to write a saga as lengthy as The Lord of

the Rings without so much as one character kissing another.

The same is true for the erotic take on the novel Pride and Prejudice

subtitled as The Wild and Wanton Edition. This book “combines the complete

original Pride and Prejudice novel . . . with sexually explicit additions” that are

“printed in bold, helpfully to the reader who wants to just skip ahead to the next

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sexually explicit insertions.” Pet. App. at 78. “All of the additions . . . clearly fit

the current DOC definition of ‘sexually explicit’ writing.” Pet. App. at 78. The

Eighth Circuit referred to an Amazon.com advertisement which described the

book as a “deliciously naughty updating of the beloved classic” where the reader

could “peek behind the closed doors of Pemberley’s sexiest master bedroom – and

revel in the sexual delights of your favorite couple.” Sisney II, 15 F.4th at 1192,

n.3. The “heat” was said to be “turned up to high . . . from first kiss to orgasmic

finish.” Id.

If Jane Austen had believed explicit sexuality was integral to her critique

of England’s repressive sexual mores, she could have written those scenes into

the book herself. Austen’s omission of such scenes is the essence of her critique.

Thus, wild and wanton sexualization of Pride and Prejudice defeats the purpose

of reading the book for anyone genuinely interested in Pride and Prejudice as

literature. Miller, 413 U.S. at 24.

In finding that the 2014 Policy was “constitutional as applied to these

books in their entirety,” the Eighth Circuit found that “[b]oth erotic novels at

issue here contain graphic descriptions of sexual acts whose primary purposes is

clearly to cause sexual arousal in the reader.” Sisney II, 15 F.4th at 1192. It

was said that “[a]s applied to the erotic novels, the Policy clears Turner’s

threshold requirement.” Thus, it is preposterous for Sisney to suggest that there

is “virtually no actual pornography at issue in this case” and that “the

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overwhelming amount of texts prohibited are high-value texts that are not

prohibitable under Turner.” Petition at 9.

As found in Sisney II, courts “have routinely held that there is a rational

connection between censoring pornography and promoting legitimate penological

interests.” Id., citing Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999)(en

banc); see also Amatel. 156 F.3d at 196-201. While noting that many of the cases

concern bans on pornographic images, the court held that “common sense

confirms that pornographic writings such as the two at issue here can present

the same obstacles to legitimate penological interests as pornographic images.”

Sisney II, 15 F.4th at 1192, citing Cline v. Fox, 266 F.Supp.2d 489, 497-98 (W.

Va. 2003).

Moreover, the censorship of the erotic novels because of their sexually

explicit content was said to have “operated in a neutral fashion.” Id., citing

Turner, 482 U.S. at 90. As was found by the court, prison officials “did not

censor the books because they advanced claims about human sexuality that the

prison officials deemed subversive and therefore worthy of suppression.” Rather,

officials “censored the books because they contained passaged ‘intended to serve

no other purpose than to arouse the sexual desires of those reading the book.’”

Id. In light of the Eighth Circuit’s findings, there is no support for Sisney’s

assertion that the 2014 Policy is not facially neutral and “is the essence of

content-based regulation.” Petition at 23.

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3. Sisney’s Petition Exaggerates The Importance Of The Question

Presented By Misrepresenting The Scope And Effect Of The 2014

Policy

In an apparent attempt to exaggerate the importance of the question

presented in this case, Sisney argues that the 2014 Policy is “one of

unprecedented scope,” and makes a number of material misrepresentations

concerning the policy’s scope and effect. Correcting these misstatements reveals

that there is nothing about this case that warrants this Court’s attention.

a. Holy Bible

According to Sisney, the 2014 Policy broadly prevents inmates from

receiving a range of religious texts including the Holy Bible, going so far as to

claim that Respondents “admitted in court that their policy should result in a

ban of the Holy Bible.” Petition at 1-2, 20. The record reflects that it was the

district court judge, not Respondents, who stated that “the Bible would be

banned under this – under this current Policy.” District Court Docket 183 at 9.

Sisney’s counsel has seized on the court’s statement to argue that “the Policy

itself, by its very terms, if it’s applied consistently, would require the state to –

absolutely ban the Bible.” District Court Docket 183 at 9.

In reality, while inmates have argued that the 2014 Policy could be

interpreted to ban the Bible and other religious materials, the record reflects

that “prison officials have never attempted to ban the Bible.” District Court

Docket 183 at 20. As reported in a number of decisions, Respondents have never

adopted an interpretation of the 2014 Policy that would result in banning the

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Bible. Maday v. Dooley, 2018 WL 522319 at *5 (D.S.D.); Bell v. Young, 2018 WL

3148385 at *9 (D.S.D.); Maday v. Dooley, 2019 WL 4747058 at *5 (D.S.D.); Bell v.

Young, 2018 WL 3148385 at *9 (D.S.D.).

Sisney’s argument that the SDDOC could ban the Holy Bible under the

2014 Policy was rejected in Sisney II, 15 F.4th at 1199. Sisney II, 15 F.4th at

1199, found that “the Policy’s definition of ‘sexually explicit’ limits sexually

explicit writings to those that include ‘graphic’ descriptions of sexual acts.” Id.

According to Sisney II, “the passages from the Bible that Sisney cites do not

include ‘graphic’ descriptions of sexual acts” within the meaning of the subject

policy. Id. Rather, referring to the two passages cited by Sisney, the Sisney II

court found that “[n]either of these brief allusions to a sexual act, the first

cloaked in euphemism and the second in metaphor, paints a ‘vivid picture with

explicit detail’ . . . or offers a ‘clear lifelike or vividly realistic description’” as

would be prohibited by the 2014 Policy. Id.

b. Fully Clothed

Sisney also wants this Court to believe that the 2014 Policy is

“unprecedented” because Respondents “reject material if it contains a picture

that shows any 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.” Petition at 3. According to Sisney, the 2014 Policy “goes beyond

sexually explicit material and nudity to prohibit images in which an ‘excessive’

amount of skin is visible (whatever that means).” Petition at 27. This argument

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only serves to demonstrate the lengths Sisney will go to in the hope of having his

petition for writ of certiorari granted. Not only is Sisney’s argument not

supported anywhere in the record, it ignores the express findings of the district

court in rejecting this very argument.

The record shows that the district court rejected any such argument “for

several reasons.” Pet. App. at 123. First, the affidavit submitted by Sisney in

support of his contentions “recite[d] what another person said, so the

information in the affidavit is hearsay which is not generally admissible

evidence.” Pet. App. at 123-24. Second, the affidavit failed to establish that the

person supposedly making such statements was “competent to testify to

[Respondents’] interpretation and application of the DOC pornography policy.”

Pet. App. at 124. Third, the affidavit in question was said to “involve a question

of law – how to interpret the DOC pornography policy” and that was “a question

uniquely reserved for the court to determine.” Pet. App. at 124.

Finally, the district court expressly found that such argument “does not

appear to be borne out by the court’s examination of the materials [Respondents]

rejected in the name of the policy.” Pet. App. at 124. Rather, for each of the

items that had been rejected, the district court was “able to verify by actually

examining the material rejected under the policy, there was indeed a bare

breast, buttock, or genitalia, or in the case of written materials, there was a

writing describing a sex act.” Pet. App. at 124-25. The court “found no instance

in which [Respondents] rejected a publication on the basis of a fully-clothed

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breast, buttock or genitalia that showed ‘definition.’” The record reflects that the

court also “found no instance in which [Respondents] rejected a publication on

the basis that an ‘excessive’ amount of inner thigh, breast or buttock was

shown.” Pet. App. at 125.

c. No Actual Danger

Finally, Sisney contends that “[w]hile the Respondents’ interests are

legitimate in the abstract, in this case they are unconnected to any real

problem.” Petition at 20. According to Sisney, Respondents “have demonstrated

no actual danger to the possession of any of the texts at issue.” Petition at 11.

He maintains the “the gossamer specter – but not the concrete actuality – of

danger looms.” Petition at 14.

Respondents, however, were not required to show, with certainty, that

adverse consequences would flow from the failure to censor a particular item.

Carpenter, 536 F.2d at 762, citing Procunier, 416 U.S at 414. “The only question

that [the court] must answer is whether the defendants’ judgment was ‘rational,’

that is, whether the defendants might reasonably have thought that the policy

would advance its interests.” Id., citing Amatel, 156 F.3d at 199. Respondents,

therefore, were not required to prove that “the regulation in fact advances the

government interest.” They need only have shown that they “might have

thought that it would.” Sisney II, 15 F.4th at 1191, citing Amatel, 156 F.3d at

199.

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Here, in light of the findings made in King and its progeny, Respondents

“might reasonably have thought” that the 2014 Policy would advance the same

governmental interests in prison security and the rehabilitation of inmates. As

previously recognized in King, “[p]ornography in the prison interfered with these

twin interests because inmates fought over pornographic materials.” Pet. App.

at 99. Such materials, therefore, “found their way into the hands of sex

offenders to whom the materials were detrimental.” Inmates not only “sold,

rented and bartered the materials in contravention of other DOC policies,” they

“hid pornographic materials in envelopes marked ‘legal mail’ in the [prison]

chapel and school.” Pet. App. at 99. The district court, in Salinas v. Janklow,

4:99-cv-04204-LLP, Docket N. 28 (D.S.D. June 16, 2003), disposed of another

challenge to the DOC Pornography Policy “with identical reasoning.” Pet. App.

at 100.

As was again later recognized by the district court in Bell, 2018 WL

3148385 at *32, “bartering of these images has been a problem even among

inmates prohibited from possessing them.” It was once again noted that inmates

within the SDSP had been “known to barter or sell such images in the past in

contravention of SDSP Policies.” Id. It was thus said that “[i]f allowed within

the SDSP, such materials would likely be passed around and ultimately find

their way into the cells of psychologically unfit inmates which would interfere

with efforts to rehabilitate those inmates.” Id.

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Similar concerns were again later recognized in Cody v. Loen, 2011 WL

13190202 at *2 (D.S.D.) aff’d. 468 F. App’x. 644 (8th Cir. 2012), where the court

found that allowing sexually explicit materials in prison would result in obvious

“security problems, such as fights, increased sexual activity, and destruction of

property.” Harris v. Bolin, 950 F.2d 547, 549 (8th Cir. 1991). As readily

acknowledged by the district court in Bell, 2018 WL 3148385 at *32, allowing

such images into the SDSP would “very likely lead to sexual arousal among

inmates that view them” and “cause inmates to act out their sexual aggression.”

According to the court, said images would “lead to an increase in sexual behavior

among inmates.” Id.

Courts have consistently recognized the “connection between nude images

and preventing harassment of female staff and reducing various security

concerns.” Fauconier v. Clarke, 257 F.Supp.3d 746, 756 (W.D. Va.); see also

Wickner v. McComb, 2010 WL 3396918 at *5 (Minn.); Lacy v. Reed, 2014 WL

4793934 at *8 (W.D. Ark.). These concerns were identified in King where the

court specifically recognized that “[s]ome of the potential security problems

include the use of pornographic material to verbally and sexually harass

corrections staff (especially females).” King v. Dooley, Civ. 00-4052, Doc. 34. p.

92 (D.S.D. June 16, 2003). Inmates have been known to “draw anatomical

comparisons with wives, girlfriends and mothers of inmates and with corrections

staff.” King, Civ. 00-4052, Doc. 34. at 92. Said concerns were again recognized

by the district court in the instant case. Sisney simply elects to ignore the

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express finding that such material “could be bartered for their sexual themes

and could give rise to new ideas with which to taunt female employees.” Pet.

App. at 32.

In arguing that Respondents have not demonstrated any actual danger

stemming from the possession of any of the materials at issue, Sisney neglects

the holding in Sisney I, 886 F.3d at 695, where it was noted that Respondents

“cited a variety of district and circuit court opinions describing the general

penological interests served by prison bans on sexually explicit materials,

including institutional security, rehabilitation, and the prevention of sex crimes

in prison, as well as a reduction in sexual harassment directed at staff.” Similar

concerns were again later recognized in Sisney II. As found by the court,

“Turner’s third factor weighs in [Respondents’] favor because sexually explicit

material is likely to find its way through bartering to the prisoner who finds it

most sexually stimulating, potentially interfering with rehabilitation.” Sisney II,

15 F.4th at 1193, citing Thornburgh, 490 U.S. at 418.

These same penological interests are at play regardless of the form that

the pornography might take. Pornographic materials “are, by their very nature,

likely to lead to sexual arousal among the inmates that view them.” Bell, 2018

WL 3148385 at *32. There is no question that the erotic novels at issue here

“contain[ed] graphic depictions of sexual acts whose primary purpose [was] to

cause sexual arousal in the reader.” Sisney II, 15 F.4th at 1192. The passages

contained therein served no other purpose than to arouse the sexual desires of

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those reading the book. Id. As already indicated elsewhere herein, “common

sense” therefore confirms that pornographic prose of the type found in Thrones of

Desire and Pride and Prejudice: The Wild and Wanton Edition “can present the

same obstacles to penological interests as pornographic images.” Id. at 1204,

citing Virginia v. Hicks, 539 U.S. 113, 122 (2003). Thus, Sisney has failed to

demonstrate that the 2014 Policy is unconstitutionally overbroad and thus

facially unconstitutional. Sisney II, 15 F.4th at 1204.

CONCLUSION

Sisney’s petition for writ of certiorari should be DENIED.

Dated this 2nd day of March 2022.

Respectfully submitted,

JASON R. RAVNSBORG

ATTORNEY GENERAL

_Paul_S._Swedlund__

PAUL S. SWEDLUND

SOLICITOR GENERAL

1302 East Highway 14, Suite 1

Pierre, South Dakota 57501-8501

Telephone: 605-773-3215

paul.swedlund@state.sd.us

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