Sistine Chapel nudes OK, Coppertone girl bare bum not OK

The appellate court addresses the degree of deference corrections facilities have when it comes to prison regulation


This article was featured in Lexipol's Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

SISNEY V. KAEMINGK, 2021 WL 4840836 (8th Cir. 2021)

I write a monthly legal newsletter for law enforcement, and I appreciate the comments I receive each time it goes out. I am often amused to hear from some of the convicts and plaintiffs featured in Xiphos, even the rare one that threatens all kinds of mischief if I don’t revise an article to present his version of how he ended up in prison for 45 years (true story). By the way, who let that inmate have access to the internet? To the correctional officer who recently wrote to me and asked for more articles on corrections law, this one is for you!

Charles Sisney is an inmate at the South Dakota State Penitentiary. Correctional officials have barred Sisney from receiving issues of a comic-book series entitled Pretty Face (a Japanese manga comic); a reprint of the iconic Coppertone advertisement with a puppy who pulls down a little girl’s swimsuit and exposes her bottom; 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, including Michelangelo’s “David” and the Sistine Chapel.

For the past several years, Sisney has been suing corrections administrators over the prison pornography policy. The 8th Circuit applied the test articulated by the Supreme Court in Turner v. Safley (482 U.S. 78 (1987)) and held the prison properly barred the two erotic novels. Throughout the course of the litigation, the courts have also upheld exclusion of images of the Coppertone girl’s bum and the Pretty Face comics.

Writing for the majority opinion in Turner v. Safley, Justice O’Connor noted, “Prison walls do not form a barrier separating inmates from the protections of the Constitution.” But the Court also granted that prison administrators deserve a wide degree of deference: “When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Justice O’Connor articulated four factors to guide application of the standard:

  • Whether there is a “valid, rational connection” between the prison regulation and the legitimate governmental interest;

  • Whether there are alternative means for the inmates to exercise their constitutional rights;
  • Whether the granting of an inmate request will negatively impact guards and other inmates; and,
  • Whether there are any ready alternatives to the regulation (the regulation does not have to be the “least restrictive alternative,” but easy alternatives may be evidence the regulation is unreasonable).

For the corrections officer wanting more corrections law, the Turner v. Safley test is stuff you ought to know for purposes of advancement into administration. For the rest of us, the commonsense outcome here is that banning the manga comics (I’ve never read one, but I’m told that some are marginally erotic) and the bodice-ripper erotic novels readily seems connected to legitimate penological interests.

I’ve spent enough time sitting with a neck extended back to stare up at both the pre-restoration and the post-restoration of the Sistine Chapel frescos, particularly The Creation of Adam, to conclude that Michelangelo, Botticelli, Ghirlandaio, Perugino and Raphael had no pornographic brush strokes (or tapestry weaves, in Raphael’s case). And I’ve stood at the doors of the baptistry in Florence to admire Lorenzo Ghiberti’s bronze doors, known as the Gates of Paradise, and never really noted any nudes that inspired anything other than awe. I’ve seen Matisse’s Blue Nudes. They’re anything but erotic, in my uncultured opinion.

The court allowed Sisney to keep his art books and the nine art prints. Perhaps he’ll find a higher purpose in Renaissance art. Or perhaps he’ll focus more on the topic of his other litigation (prison food). Who knows, he may even send me an email and explain why the Coppertone girl’s bare bottom is deserving of the Court’s time.

NEXT: Principles for success as a CO: State law

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