Civil Liberties

Do Prisoners Have a Right to Adult Content?

In a rare instance where censorship and the rights of the incarcerated are colliding, a district judge is expected to rule on whether the South Dakota prison system’s porn-prohibiting policies are constitutional. Should porn in prisons be a civil right?

Inmate Charles Sisney (along with his lawyer) is the one challenging the rule. Convicted of murdering his girlfriend in 1997, Sisney is serving a life sentence without parole. According to his lawsuit and the amicus briefs filed by the American Civil Liberties Union of South Dakota and the National Coalition Against Censorship, corrections officers have been confiscating items sent by mail to Cisney under the justification that they’re pornographic. 

But the prison guards have been confiscating items like yoga magazines, a poster of the iconic Coppertone girl ad, Japanese comic books, the art book Matisse, Picasso and Modern Art in Paris as well as erotic novels Pride and Prejudice: The Wild and Wanton Edition and Thrones of Desire. Some argue they’re going beyond their stated rules––that pornography and sexually explicit content can’t be kept by inmates––and getting overzealous with what does or does not constitute porn. This isn’t the first time Sisney has raised a stink in court. Per the Argus Leader, “In 2016, the district court ruled mostly in Sisney’s favor [on the pornography issue]. But the state and Sisney both appealed. The appeals court decision vacates that 2016 decision because it weighed Sisney’s challenge[s] based on the earlier 2000 policy.” In the past, he has also challenged policies related to Kosher food and inadequate prison provisions infringing on his ability to practice his religion.
Since inmates are already denied so many other freedoms, it might be easy to overlook the gravity of censorship in prisons.
According to its policy, the Department of Corrections “prohibits the purchase, possession and attempted possession and manufacturing of pornographic materials by offenders housed in institutions.” Per the lawsuit, Sisney filed petitions in accordance with the prison’s process, but he was “denied relief with only brief explanations as to why the materials were withheld.” Now, some argue that the policy has gone too far and constitutes a First Amendment issue, where mail sent and received is arbitrarily restricted and types of content are broadly prohibited. 

Steven Morrison, Sisney’s attorney, told CityPages in 2017, “This policy is unprecedented because it effectively entirely prohibits an entire class of speech, which is sexually explicit content, and it goes beyond that to prohibit all sorts of stuff like… a particular image in a yoga magazine that a prison guard wouldn't want to be there.” Of course, if there is a legitimate interest for prison guards to confiscate sexually explicit material, a case could be made for that. But the lawsuit claims that “officials 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.” 

There should be a high burden of proof for the South Dakota prison system to prove that access to comics or a Coppertone ad, goes against “general penological interests.” This is to be expected from a state full of lawmakers that last year unanimously voted to consider porn as a “public health crisis” that “warrants the attention given to other statewide epidemics,” and a Republican Party that claimed “pornography is destroying the lives of millions” in its 2016 platform. But given that so many of these same conservatives also claim to be wedded to the First Amendment, perhaps it’s time to consider whether that commitment is principled or shallow. 

After all, sometimes one’s right to view sexual imagery or risqué content comes into conflict with other people’s feelings that porn is icky. Since inmates are already denied so many other freedoms such as the right to privacy or unrestricted movement as the cost for being the alleged perpetrators of a crime, it might be easy to overlook the gravity of censorship in prisons. When we begin to see consuming sexual content as a “privilege” for any adult population, it’s a slippery slope. Absurd anti-porn regulations have broader implications for free speech, and we should tread lightly lest we begin to live in a society where censorship and confiscation become increasingly routine.

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