by Kevin W. Bliss
In February 2019, Polk County, Iowa District Court Judge Scott Rosenberg denied the state’s motion to dismiss a lawsuit filed by prisoners at the Anamosa State Penitentiary (ASP) challenging the Iowa Department of Corrections’ (IDOC) denial of access to publications that feature nudity.
Pro se plaintiff Jack Leonard Hays and 11 other prisoners at ASP sued over a law enacted by the state legislature in 2018. The statute, Section 904.310A, was crafted using language modeled after a federal law regulating sexually explicit material in the Bureau of Prisons, known as the Ensign Amendment. [See: PLN, March 1997, p.11]. The statute states that “funds made available to the department shall not be used to distribute or make available any commercially published information or material to an inmate when such information or material is sexually explicit or features nudity.”
The complaint filed by the ASP prisoners alleges that this definition is so broad and sweeping as to include constitutionally protected speech, including publications related to art, literature and even medical journals. It also states the plaintiffs believe the legislation encouraged the IDOC to confiscate property already in the possession of prisoners, including property that was purchased using private funds.
“I would like to stress that this lawsuit is for Iowa’s citizens (including women prisoners) who wish to continue to read and view the arts,” Hays stated. “Though some of the material that is in the free communication of ideas may have nudity or be sexually explicit, this is necessary in order to convey certain thoughts, emotions, etc. We are not seeking obscene material.”
The prisoners argued during a telephonic hearing that they had a First Amendment right to literature which may contain some depiction of nudity, such as Michelangelo’s painting on the ceiling of the Sistine Chapel. Hays noted that “not everybody considers nudity obscene.”
The defendants countered that the prisoners failed to state a claim, that the court lacked jurisdiction and that prison officials had a valid penological interest in banning sexually explicit material. Judge Rosenberg denied their motion to dismiss, and the attorney general’s office said it would seek summary judgment.
However, on April 3, 2019, Judge Rosenberg issued a temporary injunction ordering the IDOC not to “prevent the distribution of materials to the plaintiffs and other inmates similarly situated that features mere, non-sexually explicit, nudity.” The same order required publications deemed by prison officials to be sexually explicit to be stored and preserved until there is a final judgment in the case.
The court cited United States v. Thompson, 653 F.3d 688 (8th Cir. 2011) and two other cases as precedent to find that statutes banning materials depicting nudity alone were “overly broad and, therefore, [do] not pass constitutional muster.” While the court agreed with the defendants that there was a legitimate governmental interest in limiting prisoners’ access to sexually explicit materials, it found that prohibiting prisoners from “access to legitimate art, literature and other publications” interfered with their constitutional rights.
Deciding that the statute may be overly broad for including mere nudity, the court granted the prisoners’ motion for a temporary injunction and the case remains pending. See: Radeke v. Iowa, Polk County District Court (IA), Case No. 05771 CVCV057085.
In a separate lawsuit filed in federal court, Iowa state prisoner Michael Lindgren is also challenging the statute banning publications that include nudity. Lindgren’s attorney, Nathan A. Mundy, argues that the law prohibits prisoners from receiving mainstream magazines such as National Geographic. U.S. District Court Judge Robert Pratt entered an initial screening order on January 2, 2019, allowing the case to proceed. See: Lindgren v. State of Iowa, U.S.D.C. (S.D. Iowa), Case No. 4:18-cv-00404-RP-RAW.
In 2018, the Iowa legislature considered Senate Study Bill 3035, legislation that would put an end to so-called “pornography reading rooms” in state prisons. [See: PLN, May 2018, p.61]. The bill did not make it out of committee. The reading rooms have existed since a 1988 federal court ruling that held the IDOC’s rules on pornography were unconstitutionally vague and overbroad. See: Dawson v. Scurr, U.S.D.C. (S.D. Iowa), Case No. 81-373-D.
Additional sources: courthousenews.com, hyperallergic.com, newser.com
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Dawson v. Scurr
|Cite||U.S.D.C. (S.D. Iowa), Case No. 81-373-D|