Charles Sisney fights for the right of convicted murderers to enjoy porn

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Under Department of Corrections policy, Coppertone magazine ads are considered sexually explicit just the same as adult films, according to Charles Sisney's lawsuit.

Charles Sisney has nothing but time. He'd gotten angry after his girlfriend Kathy Cepak asked him to move out. So Sisney executed Cepak in 1997 with two gunshots, then hid her body in a storage locker. He's serving a life sentence in the South Dakota State Penitentiary in Sioux Falls.

The inmate keeps busy by suing the state Department of Corrections, which he first did in 2000. Sisney didn't practice Judaism. He didn't abide by kosher diet either. That didn't stop him from demanding it. Sisney claimed officials were trampling on his religious beliefs. A circuit court judge would rule against him.

Sisney sued again in 2003 after officials refused to build him a succah in the prison yard. Sisney said he wished to celebrate a Jewish festival of Thanksgiving by eating his meals in the small, three-sided tent. He claimed the rejection was a First Amendment violation, and sought monetary damages. He lost.      

Maybe the third time will be the charm.

Next month a federal court in St. Paul will be the venue for Sisney's current suit, in which he's challenging South Dakota's prison policy on porn. According to the corrections department, inmates are prohibited from any materials "written and/or pictorial" that feature nudity or are sexually explicit.  

The policy constitutes a violation of the right to free speech, Sisney charges. 

He isn't suing over access to pornhub.com. The problem is the state's definition of porn is too broad. This, Sisney contends, robs him of the reading pleasure of Pride and Prejudice: The Wild and Wanton Edition and the joy of the art book Matisse, Picasso and Modern Art in Paris. The rules are so restrictive, they forbid an inmate from looking at a Coppertone ad, he contends.      

Steven Morrison, a University of North Dakota law professor, represents Sisney. He argues the prohibition applies to everything from National Geographic, Wired, and yoga magazines to milfhunter.com and racy photos mailed by a wife.

"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," Morrison says. "Under this policy, materials can be prohibited if they show an excessive amount of inner thigh."

Morrison wants the court to invalidate the policy. That's the best case scenario. A close second would be forcing the department to revert back to its old rules, which allowed inmates to receive mail with X-rated words and pictures as well as nude images, as long as they weren't sexually explicit in nature. The policy also didn't put restrictions on written materials. 

"When you become a prisoner, you don't give up that First Amendment right," says Morrison. "If the prison can show why restricting otherwise First Amendment protected material is related to a legitimately penological interest like prison security or prisoner rehabilitation, then the prison will be given a great deal of deference in doing so."  

Department of Corrections spokesperson Michael Winder declined comment. 


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