thank your honor may please the court counsel in two thousand and three the district court approved the dio sees pornography policy in two thousand and twelve it approved again in two thousand and sixteen however  found the policy facially unconstitutional in terms of the sexually explicit material an inmate was allowed to possess the only differences between the old and new policies were the new policy prohibits pornographic prose in addition to pornographic pictures in addition to genitalia and female grass the new policy adds pubic area and box to the definition of nudity and the new policy reverted to a dictionary definition of the word features as in a prominent park your you need significant differences right because if you look at the adinda i'm forty eight forty nine fifty five you know the chart of them side to side there are more changes and that there are more changes but you're saying those are the significant well these are the ones that affect what an inmate is allowed to possess and so the new policy used the word feature in its everyday word as a prominent part  characteristic of something i think you stated in the brief that the policy was basically the same as the two thousand policy are you changing your position now that it's not basically the same well it's if the objective is the same honour's and that is to make sure that there is an orderly institution there are some changes that were made that more used to close loopholes in the policy for example be the  change that extent of the policy to pornographic prose was enacted because pornographic prose causes the same problems within the institution as actual pretoria but didn't the district court find that there was very little evidence in the record supporting the changes or expressing any rational reasons for the changes that were made with the district court itself in two thousand and three supported the policy saying quote inmate possession upon our griffey had been an ever increasing problem for example inmates sold rented or traded pornographic magazines in violation of other deals the policies disputes about the use or return of such magazines resulted in threats against inmates certain groups have been ma who were prohibited from pets possessing pornographic materials such as sex offenders could access material from those who were not prohibited from possessing it end quote and the district court also noted that there were concerns with the use  paragraph fifteen of his affidavit all you have well that in the district court's finding the previous case correct thank you but these are legitimate problems within the institution yes you're on isn't a significant difference com the definition of sexist sexually explicit material and that significant difference being it expanded it to written material well as secretary came it points out there is the same problems there that's that's the main thrust of way think it might be of the complaint isn't it the definition of sexually explicit and expanding it to written materials as opposed to it or you it there are things i don't i'm not sure what their thrust is exactly your honor but  the change from the sexually explicit pictures pictures to also to include prose was meant to meet the same problems that were being caused by pictures themselves  and three so how much do you think you have to show well the burden is actually on mr sisson need to to prove that the policy doesn't meet rational objectives so we believe that we've made the show we believe also that the case law is fairly well established as and moreover that there's institutional disruption that flows from the circulation not be within the institution and according to amatil quote there is a significant body of research showing that long term exposure to an odd a few can make its male audience more aggressive more tolerant of violence against women more susceptible to miss about rape and that quote common sense tells us the prisoners are more likely to develop the now missing self control and respect for others if prevented from pouring over pictures their degrading and despite disrespectful of a few senses behind you don't you have to show the legitimate government interest and it's not sort of motives to ren policy arbitrary rational what you have to show that well that has been shown so many times your honor that i don't think it's necessary to plow that ground over and over and over again and all these first of many cases you have to have moral between the regulation and that ye the question really is what does it do the changes change that any and the state's position obviously is a no it doesn't it's not if you certainly common sense tells us that  graphic textual descriptions of pornography can have the same negative effects in an institution that has as its pictures can it can become a currency within the institution just the same as a picture can so that was the experience that the southcoast part of the corrections had and that's why they made the changes that they did from secretary came in his his statement that the same problems that it were found to be would be like any instances where a piece of sexually explicit literature created that no they're that was a loophole that needed to be closed in the old policy but i don't see anything in the affidavit explaining why the changes were made it's just simply relying on the rationale for the original policy entirely well secretary came in says that the reasons for making the changes in two thousand and sixteen in his affidavit were the same reasons that the an act of the policy in the first place and the policy itself included certain loopholes that need to be closed for example the proposed loophole they were having problems with with prose so they kept it out of the a that in the record though doesn't it in a general sense as what secretary came into saying is that the new the changes were were caused and the change by by institutional problems that right benefit in the two thousand and three decision and among those changes were the change to pros have a change to the definition of nudity in the change to features so for example with features the definition was itself a shoe and adequate so for example the magazine popular photography does not routinely contain explicit imagery or promote itself based on its sexually explicit content but in addition of popular photography that contains a retrospect of sexually explicit or violent robert mablethorpe photographs therefore would not meet the different definition of features under the old policy so that necessitated a change to the definition of features so now we have simply due dictionary definition of popular photography magazine contains that kind of photography and it would be a rather prominent part of that magazine and probably the reason why that magazine has been requested by an inmate was the so called all or nothing policy in which you know a magazine that isn't doesn't otherwise have pornographic material might have a certain racy picture or something like that so the entire magazine is banned was that policy part of the earlier policy or is that part of the change it's how it's implemented so it's always been implemented and that and the all or nothing policy has been affirmed again it's one of those sort of well established things in the law at this point that it's not a de minimus intrusion on the prisons to go through everything pull out this page of that page a been implemented both of the old and new versions and upheld in the law so and we've also we also have a few banks case you know your honor where in the district court in two thousand and twelve did affirm the exclusion of pornographic prose in that case story she could have written those types of scenes into pride and prejudice indeed one might even argue that it was her inability to write such scenes at the time that is central to her critique of england prevailing sexual mores and likewise if explicit sexuality was in some way integral to fantasy literature about warriors and dragons one wonders how jr towplane managed to write a desires the plots of systems books exist strictly as vehicles to introduce explicit descriptions of sex on pretexts they're very thin the books it would seem would meet certainly the definition of obscenity from says california in the sense that they are works when taken as a whole appeal to the period interest without me seriously riri artistic political or scientific value in the record have any specific examples of problems call caused by the so called gaps in the two thousand policy that were being fixed it's simply the general statement by secretary came inc that the reason these changes were  made was due to the fact that the same problems that animated the two thousand and three policy were animated the changes and under the current policy system is not prevented from viewing the female form as in morro the deal  would indeed one need look no further than the pretty face comic book itself or proof that pornography fetish is interfering with his rehabilitation the book clearly contains very explicit photographs material is not conducive to someone who who is crime involves as hear the objectification of a woman for killing her because she wouldn't have sex with him but even if such material was not detrimental to sixty's personal rehabilitation preventing such material from circulating among sex offenders within the walls has been affirmed as a legitimate exercise of power by the the like this so called banning of what you refer to is manufacturing did that come in in the two thousand and fourteen policy yes you did your honor it wasn't in the two thousand policy no it wasn't for the same rebut as it's a form of possession even though whether it's manufactured or shipped in it's if it's a form of protest then said technically it's outgoing correspondence isn't there a higher standard that applies in order for the department to ban  manufacturing that too is a form of possession with it's when it's outgoing whether they're manufacturing it in their prison if you can't possess in the first place you can't mail it out so that gets back to the changes that were made to affect the type of material that the inmates were allowed to possess but again is there anything in the record about manufacturing that was done in the past it's again mr secretary came in affidavit stating generally that these changes were made to address problems and if i may reserve the balance district court that compel a finding in favor of his knee on all four turner factors first the current pornography policy restricts all sexually explicit material as well as core religious  social political first moment tiriel on its face and without reference in the policy to any widget in a penal logical interests mr morrison can we talk a little bit about what the district court did it appeared to me that the district court struck the entire anti porn policy that and then went back to the two thousand and fourteen policy to assess the as applied items is that about right i think you're correct you're absolutely correct but the court struck the current policy facially unconstitutional and reading the complaint it looked to me like the complaint really attacked the definition of sexually explicit as being overbroad and the outgoing mail policy they distrusted the district court go a little too far in throwing out the entire policy i don't believe so i believe since these complaint it was it was clearly a facial challenge to the entirety of the policy and this court has to look at the entirely in his prayer for relief he says as it pertains to the definition of sexual sexually explicit that's the core of the policy the definition of synergy with that but is that required throwing out the entire policy yes i believe it does the definition of sexually explicit can be narrow and it can include alternatives toral was in the definition of sexually explicit and that's been approved in the past absolutely your honor i don't think you're here challenging that are you know we're not going back to my question did the district court go a little too far in throwing out the entire policy i don't think the district court had the power to reinstate the king policy i think the district that that's part of my question right because the district court went on to do the as applied under the old policy that doesn't exist the district courts analysis in that context is a little confusing and i think i'm with your honor that we're trying to figure out what was going on i think what was going on was the district court struck the current policy and had to evaluate pretty face based on something so it evaluated it based on the next best alternative which would be the king policy i fairly certain us with the district was doing why would it have been better to say this part of the definition of sexually explicit is too broad the rest of it's fine instead of throwing out the entire thing there are other problems with the policy that says needed challenge the challenge the ban on manufacturing on written materials and had the state been amenable to says new discovery requests we would've had an established record on that but the state for whatever reason chose not to go down that route and file its own motion for summary judgment based on the facts that it had and the facts that it had the facts that were stablished in district court is that this is a global ban on an entire category of first amendment protected conduct and based on that and based on the fact that there is absolutely no evidence that the current policy is helpful in any way or that the king policy was  question first because i thought reading the district court opinion that the court ordered that the policy new policy could not be enforced except when it was consistent with the old policy in the other words the king approved policy sort of went back into effect sort of the am i wrong about that i don't i do think you're wrong because again i don't think the district court has the power to reinstate the king policy the district court was just doing its best to analyze pretty face in the absence of the current policy which had been deemed unconstitutional and indeed our suggested easy alternative which is the fourth  factor is the king policy it's proven workable over years the state has a deuced no evidence that the new policy is in any way helpful or that king was in any way ineffective now if i may i'd like to turn to the first turner factor kind of focus on that in part because i think turner factor two three and four cuts dispositively insistence favor and the state if declined to litigate based on those factors you go there though can you tell me what i understand that the expansion to written materials is a major portion of what you're attacking are the other significant changes that that you're attacking absolutely the expansion into written the expansion into manufacture and sending out under martina's that is incredibly problematic the lack of definition of feature let me going back to the outgoing if if i read your client's complaint to attack the definition of sexually explicit and then in its separate account outgoing material would he have standing to challenge outgoing in other words or any pleading whatsoever that he attempted to send something out and it was censored no there wasn't i do believe ending problem with me on that regard i don't think he would have a standing problem because this is a facial challenge so he can assert first and then the violations that were suffered by other inmates and other people for example  his mother who may have been the recipients of mailings from sizzix so i think he he didn't send anything out that's at issue today but i still think he has standing it in part because  facial challenge but also in part because had he chosen to send something out and he was prohibited from communicating with somebody on the outside not only would that outside person be a victim but so would he that's the fundamental problem i have that it seemed to me that it was a facial challenge not to the entire policy but to the significant changes the written maybe the manufacturer of the outgoing and that's where i i sort of fundamentally don't understand what the district court did in terms of throwing out the i think we would be comfortable with that interpretation of these arguments because our policy or our recommendation simply is remove banks case dealt with a bulk rate ban materials that encourage sexual behavior or may be detrimental to an offender's rehabilitation that policy was focused on legitimate pain logical interest this one isn't it's not reasonably related to any interest in a way that operates in a neutral manner this is a content based policy it defies common sense to think that images of the sistine chapel smithsonian eradicate an entire category of first amendment speech and king is the cost which suggests that the current policy is not reasonably related there are any number of reasons under turner why this constitution you tell from turner and this is what the other side i think was trying to tell me they think you have the burden on everything here what do you have the burden on what do they have the burden here do you know this the state has the burden i believe on the first turner factor has the burden on the remaining three factors that's my impression of the law is definitely set on the alternatives you have the burden i absolutely get that but i wonder what you see on the middle once you agree that you have the burden on those i believe wish i knew to roll tourney of mean well accommodation so there are four tzschirner factors the first one is the reasonable relation now we think the state has the burden of proving that of course i think we have the burden disproving it and we're comfortable taking that on because it lacks common sense it's content based it's exaggerated over inclusive and there's a costless alternative as to the other three turner factors  second one do alternative means of exercising the right to access sexually explicit material remain open the answer is no on the face of the policy third what would the impact of accommodation have been prisoners staff and resources  the prison asked the defendants for instances of sexual harassment under the new policy they gave none so the impact of accommodation as a stablished in the facts in district court would be zero and then the fourth turner fact i ask you a question about the second turner factor what is the right in this case that is is it the right too see sexually explicit materials or is it something else the right  access sexually explicit materials and we know this from two cases that came before this court murphy vs missouri department of corrections where this court held that a total ban on publications that espouse white supremacy is overly broad and does not closely to conform to the purpose of upholding the security of the prison replaced white supremacy with sexually explicit content and then murchison versus rogers regarding a violent newsweek article about mexican drug cartels this court held that it did not suggest that prison officials make prohibit all materials which may contain some content involving violence replace the word violence with sexually explicit content now let's keep in mind that the only instance of pornography in this case is the title of the policy one could argue that drones of desire perhaps pornographic fair enough but the vast majority of material prohibited under this policy as pornography is not pornographic i know pornography when i really think pretty face after i would i would vehemently disagree that pretty face is pornographic you disagree with the district court in of course of course we're y there are some images of breasts some of them real some of them not but be story is not publicized based on its sexually explicit content it's close it's publicized based on its gender bending content and i'm sure this court will review pretty face as i have it's kind of an unusual story it's a weird story it's japanese anime intended for adolescen but the overriding theme of the story is not sex there are certainly sexually sexual parts of the story i suppose but we simply don't think that pretty face features sexually explicit content isn't there a strong argument though that the content a pretty face depicts sexual assault and isn't that racist to a higher level in terms of what the department can do i certainly take the state's point that that image in a pretty face could very much look like sexual assault and of course this court is going to review that for itself the point of that part of pretty face was for somebody to discern whether the victim let's call this person a victim was indeed a boy or a girl that's not ludicrous it's part of the story and if the policy prohibited images of sexual violence i dare say we would not have much of a case but the policy doesn't prohibit that it prohibits everything and it prohibits images that are found in national geographic guns germs and steel the state wants to focus on thrones of desire and pride and prejudice the wild and wanton edition and pretty face for understandable reasons but this policy bans so much more than that that's why this policy is content again you can look at the hugh banks case which the state cited you can take a look at the federal bureau of prisons policy is an analogy the federal prisons prohibits material that could undermine prison security rehabilitation and so forth p goes on to say we cannot ban materials soley on the basis of their sexual content now if there is a material that is primarily sexual but that could also undermine legitimate being a logical interest ban it that's not what this policy is about and if you one question quickly the manufacturing issue in the martinez test  states is that this is possession before it is sent out in outward correspondence and therefore it simply falls under the normal turner standard i guess what's your view and then why been outgoing mail simply ban manufacture there's a problem with that as well manufacturer includes a letter to a loved one and in the states on discovery that includes a letter that says wife i really miss you were exposed  by it includes an inmate's personal diary all of this stuff it also includes and i realize my time is up it also includes attempted possession so if i simply attempt to write something down i would be in violation for these reasons your honour's i would ask this court to affirm the district court's holding regarding disney's facial challenge and the district holding and reverse it regarding pretty face and also thank you for granting amakosa his motion to argue narrower than this one and no court in this country has upheld a prison speech ban as broad as this one that's what i'd like to focus on today is just how overbroad this prison speech ban really is specifically want to focus on three ways that it's overbroad first the policy defines sexually explicit to ban not just visual depictions such as photos of people having sex but it also bans mere written descriptions of the type that my read in a love scene in classical literature the second way this policy is overbroad is that it doesn't just ban materials that feature sexual acts or nudity as their primary content like an issue of penthouse or hustler but it also ban materials that merely include some incidental nudity like an issue of national geographic that might have an article on an amazonian tribe that's not fully clothed and the third way that this policy is overbroad is that its definition of nudity is over inclusive and has no exception for traditional artwork which has led to bans on michelangelo in a costume when we tease taken together this really is one of the most overbroad prison speech bans that's been challenge in have the general burden of disproving the policy but once the prisoner once the prisoner points to an alternative regulation that satisfies the constitutional right and imposes no more than a ok you know where turner says that i was looking a moment ago and didn't see it but well it's in a factor for i believe the exact text a camera but it's what if the prisoner can point to an alternative regulation and the then the state has to show that imposes more than a de minimus impact and here i don't think that's limited to the fourth factor you think that analysis applies to all four of the factors well actually turner really emphasizes on the fourth factor turner the south where the court struck down a ban on marriages between inmates and the court emphasised a factor for this alternative regulation and it says that if there isn't a regulation that imposes more than a de minimis that imposes no more than a de minimus impact and the state can't disprove that then it's an exaggerated response that's really the central holding we and it is the clearest on that point yes you're on and also i think though dean does reaffirm turner's holding that exaggerated responses by prisons are unreasonable and when determining whether a response is exaggerated courts should look to evidence provided by the prison of which here the prison the state has provided none but courts can also look to similar prison policies and i urge this court to look at the other policies described in the cases in the briefs from both parties and what you'll see is that this policy of the south dakota policy that's kind of where you begin what's the closest one the only one that even comes close to this is a yellow which was described in the other amicus brief in this case and that was actually rejected every other word is that the only that was a district court i don't know what state it was out of but every other every other policy in all of the briefs is much narrower than this and to that i also want to update the court on a new case that came down after we filed our brief so banks view just an out of the district court in minnesota and there  considered a ban on nude images for sex offenders what's important to note about that policy is that it did not ban written materials and that goes to just how overbroad the south dakota policy is for if written materials were right is always subject to institutional concerns mr sisson is not sitting in his living room any longer his rights are subject to restriction and as an moro institutional considerations may well justify banning all depictions of nudity if even victoria secret's catalogs starts barking riots what about traditional literature that has sexual situations in it i think i think again we have to look at the nature of the content and we have to look at what is what is the objective of the of the scene so for example of the district court cited a book in which you know there are some one scene involving an adolescent i guess learning to masturbate that was central to the story itself that's one scene and it was written by the author here we're talking about pride and prejudice the while the weapon edition and that was not written by the author so i think there's some distinctions there in the type of prose and how integral it is really to the story certainly one looks at the scene in thrones of desire one struggles to see how integral that is to the story  there's another passage in the opinion below that that's somewhat disturbing because it found the policy facially unconstitutional because quote while society standards regarding nudity in sexually explicit conduct have become more liberal or more coarse and according to one's point of view over the past sixteen years the d l c policy has grown more victorian and stripped over the period rather than being influenced by the mores of society in which the deal there's no part of the applicable first amendment analysis that looks to or requires department of corrections policies to keep pace with society's liberalized sexuality and while eighth amendment analysis sometimes looks to evolving standards of decency there's no part of the applicable first amendment analysis requires a comparison to society's evolving standards of indecency or devolving standards of decency however one might say but the characterization of the the in one direction that of liberality and greater liberality what what policy is in effect right now it's a good question i guess at a minimum the king policy  it soon as possible