The Eighth Circuit Court of Appeals is again considering a South Dakota inmate’s challenge to prison policies on pornography.
The appellate court heard the case in 2018 and sent it back to South Dakota federal court for a new approach to assessing the policy. That new order was issued a year ago. The Department of Corrections disagreed with the federal district judge’s findings and appealed. The Eighth Circuit heard those arguments last week.
Charles Sisney has been battling the prison system for years to have access to certain books and images.
Among them are photos of paintings and sculptures by Michelangelo and an art book titled Matisse, Picasso, and Modern Art in Paris.
The list also includes Pretty Face comics, some erotic prose, and a copy of the iconic Coppertone ad showing a toddler on a beach whose puppy has tugged down the back of her swimsuit.
In his order issued in June 2020, Judge Lawrence Piersol said the DOC’s ban on Pretty Face and the Coppertone baby stand, but other bans do not. He laid out some basics: nudity in and of itself can’t be the basis for a ban, but depicting nudity of minors is prohibited.
Steven Morrison represents inmate Charles Sisney at oral arguments before the Eighth Circuit.
“We know that this policy has been used to prohibit Parents Magazine, Biblical Archaeology, a text on the Holocaust, Architectural Digest, and Scientific American, all of which supposedly contain sexually explicit material.”
Morrison says courts around the country have held that prisons can’t prohibit written materials even if they’re sexually explicit.
Caroline Srstka defends the prison officials and their policies. She says erotic prose or images of nudity can be used as currency in the prison population’s barter system.
To illustrate the power of words without pictures, she reads briefly a sex scene from one of the erotic books Sisney has been denied and then addresses judges.
“That evidence right there shows that this can be destructive to the security and order of the prison, and especially with the rehabilitation of sex offenders.”
Srstka says the prison has a library of alternative publications that Sisney can access.
The appellate court has taken the case under advisement and will issue an opinion at a later date.