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McFeely: UND professor helps convicted murderer fight South Dakota porn policy

Steven Morrison is a law professor at the University of North Dakota who will argue a free speech case before the U.S. 8th Circuit Court of Appeals on behalf of convicted murderer Charles Sisney, who says South Dakota's ban on pornographic material in prisons goes too far. (Contributed photo)1 / 2
A Coppertone ad like this one is banned by the South Dakota Department of Corrections under its pornography policy. 2 / 2

Charles Sisney killed his girlfriend in Sioux Falls in 1997, shooting her twice in the head before hiding her body by stuffing it in a plastic container and putting it in a storage shed. He's spending the rest of his life, without possibility of parole, in the South Dakota State Penitentiary.

His jailers say that he and his fellow inmates have no right to look at pornography, or read sexually explicit books, and wrote a broad policy in 2008 banning such material. It's not unusual for prisons to take such steps in the name of security or prisoner rehabilitation. They're often given broad leeway by the courts to do so.

But is a copy of the iconic Coppertone magazine advertisement, in which a dog is pulling at a young girl's swimsuit bottom and exposing part of her rear end, pornographic?

How about a copy of Wired magazine, a publication focused on tech trends and computer geekiness? Or an art book containing pictures of paintings by Picasso and Matisse, which are often tortuously difficult to interpret? Do you define that as porn?

The South Dakota penitentiary does. Sisney does not. And so we have a court battle over the free speech rights of prisoners.

University of North Dakota law professor Steven Morrison, an expert in Constitutional law and the First Amendment, is representing Sisney before the 8th Circuit Court of Appeals in St. Paul later this month. The case is in federal appeals court because a South Dakota court already ruled the penitentiary's ban is unconstitutional. Morrison says the policy is "unprecedented in its restrictiveness."

"I say that because this is a global ban that restricts not only the possession, but the receipt, manufacture and sending out of what the penitentiary deems explicit material," Morrison said. "A prisoner could write a private sexual thought in a diary and that would violate the policy. A prisoner could write a letter to his wife that says he really loves her inner thighs and that would be bannable."

At issue is the Department of Corrections' prohibition on porn, revised from an earlier policy, that bans "written and/or pictorial" material that features nudity or is sexually explicit.

Pornographic material, the policy says, "includes books, articles, pamphlets, magazines, periodicals, publications or materials that feature nudity or 'sexually-explicit' conduct," including photos, drawings, etchings, paintings or other graphic descriptions.

Morrison says the policy is so open-ended the penitentiary can stop a prisoner from receiving a yoga magazine or National Geographic. Smithsonian Magazine, Us Weekly, Mad Magazine and Esquire have all been rejected by the prison, Morrison argued in his briefs filed with the court.

In Sisney's case, the prison rejected a handful of Renaissance art images, books titled "Thrones of Desire," "Pride and Prejudice: The Wild and Wanton Edition" and "Matisse, Picasso and Modern Art in Paris." And, of course, the Coppertone ad. All were mailed to Sisney by his mother.

"Prisoners do not give up their First Amendment rights. If a prison can show that restricting material protected by the First Amendment is related to a penological interest such as security or safety, the courts tend to give wide discretion to prisons, as they should," Morrison said. "But there's no evidence of that in this case. It is literally unprecedented. The policy prohibits an entire class of speech, sexually explicit content, and goes beyond that. There are no exceptions."

The American Civil Liberties Union and the National Coalition Against Censorship have filed amicus briefs in support of Sisney.

Department of Corrections spokesman Michael Winder declined to comment, saying it was an ongoing case.

In ruling the porn policy unconstitutional, the South Dakota district court essentially said the state failed to raise any relevant points as to why such a restrictive ban is necessary and, in fact, often referred to its former, less restrictive policy in making a defense.

Morrison said he hopes the appeals court invalidates the current policy. Or, perhaps, it could force the Department of Corrections to return to its old policy that allowed racy written materials and nude images, as long as they weren't sexually explicit.

One final question was asked of Morrison: What if a citizen asked why somebody like Sisney, who pleaded guilty to murdering his girlfriend by shooting her in the head, should be granted the right to view or read anything the prison has deemed off-limits?

Why should we care about a coldblooded killer?

"Among the materials my client was not allowed to possess because of this policy were images of the Sistine Chapel, painted by Michelangelo. Shouldn't he have access to religious iconography so that at some point he can look back at his life and repent?" Morrison said. "By not allowing him to possess those materials, the penitentiary has taken away his ability to come to terms with the sin he's committed. That would be my response, speaking specifically about my client, if I was asked that question."

There's a simpler way to put it.

Coppertone ads are porn? Really?

Mike McFeely
Mike McFeely is a WDAY (970 AM) radio host and a columnist for The Forum. You can respond to Mike's columns by listening to AM-970 from 8:30-11 a.m. weekdays.
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