United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2460
___________________________
Charles E. Sisney
Plaintiff - Appellee
v.
Denny Kaemingk, in his official capacity as the South Dakota Secretary of
Corrections; Darrin Young, in his official capacity as the Warden of the South
Dakota State Penitentiary; Sharon Reimann, in her official capacity as an SDSP
designated Mailroom Officer; Craig Mousel, in his official capacity as an SDSP
designated Property Officer
Defendants - Appellants
------------------------------
National Coalition Against Censorship
Amicus on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the District of South Dakota - Southern
____________
Submitted: June 17, 2021
Filed: October 15, 2021
____________
Before GRUENDER, BENTON, and STRAS, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Charles E. Sisney brought as-applied and facial challenges to the South
Dakota State Penitentiary’s pornography policy (the “Policy”) under the First and
Fourteenth Amendments, naming as defendants four South Dakota corrections
officials in their official capacities. The district court granted in part and denied in
part the parties’ motions for summary judgment, and the defendants appeal. We
affirm in part and reverse in part.
I.
Sisney is an inmate at the South Dakota State Penitentiary. In 2015, prison
officials rejected several items in Sisney’s incoming mail. These items included four
issues of a comic-book series entitled Pretty Face; a reprint of the iconic Coppertone
advertisement featuring a puppy pulling at a little girl’s swim bottoms; 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. Prison officials based their decision to reject these items on the
Policy, which prohibits inmates from receiving pornographic material. The Policy
defines “pornographic material” as follows:
Includes books, articles, pamphlets, magazines, periodicals, or any
other publications or materials that feature nudity or “sexually explicit”
conduct. Pornographic material may also include books, pamphlets,
magazines, periodicals or other publications or material that features,
or includes photographs, drawings, etchings, paintings, or other graphic
depictions of nudity or sexually explicit material.
“Nudity” means a pictorial or other graphic depiction where male or
female genitalia, pubic area, buttocks or female breasts are exposed.
Published material containing nudity illustrative of medical,
educational or anthropological content may be excluded from this
definition.
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“Sexually Explicit” includes written and/or pictorial, graphic depiction
of actual or simulated sexual acts, including but not limited to sexual
intercourse, oral sex or masturbation. Sexually explicit material also
includes individual pictures, photographs, drawings, etchings, writings
or paintings of nudity or sexually explicit conduct that are not part of a
book, pamphlet, magazine, periodical or other publication.
After exhausting his administrative remedies, Sisney sued the defendants in
federal court, claiming that the Policy was unconstitutionally overbroad on its face
and, in any event, unconstitutional as applied to the items enumerated above. Both
parties moved for summary judgment. The district court held that the Policy was
unconstitutionally overbroad on its face and then appeared to adjudicate Sisney’s as-
applied challenges against a prior version of the Policy. See Sisney v. Kaemingk,
CIV 15-4069, 2016 WL 5475972 (D.S.D. Sept. 29, 2016), vacated, 886 F.3d 692
(8th Cir. 2018).
On appeal, a panel of this court vacated the district court’s summary-judgment
order and remanded. Sisney v. Kaemingk (Sisney I), 886 F.3d 692, 694 (8th Cir.
2018). We explained that the proper course under Board of Trustees of State
University of New York v. Fox, 492 U.S. 469 (1989), was first to resolve Sisney’s
as-applied challenges against the version of the Policy in effect and then to consider
Sisney’s overbreadth challenge only if at least one of Sisney’s as-applied challenges
failed. Sisney I, 886 F.3d at 698-99.
On remand, the district court rejected Sisney’s as-applied challenges to the
Pretty Face comics and the Coppertone advertisement but sustained Sisney’s as-
applied challenges to the other items. Turning to Sisney’s overbreadth challenge,
the district court concluded that the Policy was overbroad but that it was possible to
remedy its constitutional defects without enjoining its enforcement in toto. The
district court explained that the Policy remained enforceable to the extent that it
overlapped with a hypothetical amended version of the Policy that the district court
drafted. The district court’s amended definition of “pornographic material” reads as
follows, with deletions in strikethrough and insertions in underline:
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Includes books, articles, pamphlets, magazines, periodicals, or any
other publications or materials that feature nudity or “sexually explicit”
conduct. Pornographic material may also include books, pamphlets,
magazines, periodicals or other publications or material that features,
or includes photographs, drawings, etchings, paintings, or other graphic
depictions of nudity or sexually explicit material. Featured: is defined
as a publication which routinely and regularly featured pornography, or
in the case of one-time issues, promoted itself based on pornographic
content. The depiction of nudity of minors is prohibited.1
“Nudity” means a pictorial or other graphic depiction where male or
female genitalia, pubic area, buttocks or female breasts are exposed.
Published material containing nudity illustrative of medical,
educational or anthropological content may be excluded from this
definition.
“Sexually Explicit” includes written and/or pictorial, graphic depiction
of actual or simulated sexual acts, including but not limited to sexual
intercourse, oral sex or masturbation. Sexually explicit material also
includes individual pictures, photographs, drawings, etchings, writings
or paintings of nudity or sexually explicit conduct that are not part of a
book, pamphlet, magazine, periodical or other publication.
The Pretty Face comics and the Coppertone advertisement fell within the scope of
this hypothetical amended version of the Policy. Therefore, because the district
court enjoined enforcement of the Policy only to the extent that it did not overlap
with this hypothetical amended version, the district court’s remedy for the Policy’s
alleged overbreadth did not affect which of the challenged materials Sisney would
be permitted to receive.
1
The district court’s order included two formulations of its definition of
“featured” or “feature” and its provision regarding nudity of minors. One is
reproduced above; the other reads as follows: “‘Feature’ means a publication which
routinely and regularly featured pornography, or in the case of one-time issues,
promoted itself based on pornographic content. Graphic depictions of nudity of
minors is [sic] prohibited.” Our analysis does not depend on which formulation is
controlling.
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The defendants appealed, challenging the district court’s adverse rulings on
Sisney’s as-applied challenges and the district court’s conclusion that the Policy was
overbroad. The defendants did not appeal the district court’s remedy for the alleged
overbreadth. Nor did Sisney, who did not file a cross-appeal, even though he had
urged the district court to enjoin enforcement of the Policy in toto after concluding
that it was overbroad.
After filing their notice of appeal, the defendants asked us to stay the district
court’s order. We denied this request. Alleging that the defendants have
nevertheless refused to comply with the district court’s order, Sisney has filed two
motions asking us to sanction the defendants for contempt of court.
II.
We review the district court’s grant of summary judgment de novo. Sisney I,
886 F.3d at 697.2 “When a prison regulation impinges on inmates’ constitutional
2
Under the doctrine of Pullman abstention, we sometimes stay ruling on a
state law’s constitutionality “pending determination in state court of state-law issues
central to the constitutional dispute.” See Moore v. Sims, 442 U.S. 415, 427-28
(1979). Pullman abstention “does not require that [the court] defer to the wishes of
the parties,” Ohio Bureau of Emp’t Servs. v. Hodory, 431 U.S. 471, 480 n.11 (1977),
and may be raised by the court sua sponte, Bellotti v. Baird, 428 U.S. 132, 143 n.10
(1976). That said, Pullman abstention is a “limited” exception to the “virtually
unflagging obligation” that federal courts have “to exercise their jurisdiction in
proper cases.” Beavers v. Ark. State Bd. of Dental Exam’rs, 151 F.3d 838, 840-41
(8th Cir. 1998). It is especially “disfavored” when the plaintiff is bringing a facial
challenge to a state law under the First Amendment. Id. at 841; see also City of
Houston v. Hill, 482 U.S. 451, 467-48 (1987) (“[W]e have been particularly reluctant
to abstain in cases involving facial challenges based on the First Amendment.”).
And although a court may invoke Pullman abstention against the parties’ wishes, the
fact that “neither party requested it” and “the litigation ha[s] already been long
delayed” weighs against doing so. See Hostetter v. Idlewild Bon Voyage Liquor
Corp., 377 U.S. 324, 329 (1964). Here, the parties have been litigating Sisney’s
First Amendment challenges since 2015 and have not asked for abstention.
Accordingly, we decline to invoke Pullman abstention in this case.
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rights, the regulation is valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court has
articulated a two-step, four-factor test to determine when a regulation that impinges
on inmates’ constitutional rights is “reasonably related to legitimate penological
interests.” Id. The first factor operates as a threshold condition that the regulation
must satisfy to pass constitutional muster. See Amatel v. Reno, 156 F.3d 192, 196
(D.C. Cir. 1998). Assuming the regulation satisfies this threshold requirement, the
court must determine the regulation’s constitutionality by balancing the remaining
three factors. See id. at 201-03.
The first factor is that “there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to justify it.”
Turner, 482 U.S. at 89 (internal quotation marks omitted). When the regulation in
question “restrict[s] inmates’ First Amendment rights,” then it must also “operate[]
in a neutral fashion” to further this interest. Id. at 90. This means that the proffered
mechanism by which the regulation promotes the legitimate government interest
must be “unrelated to the suppression of expression.” See Thornburgh v. Abbott,
490 U.S. 401, 415 (1989). For example, although “inmate rehabilitation” is a
legitimate government interest, Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir. 1993),
a prison may not censor “literature advocating racial purity” on the ground that
exposure to racist ideas inhibits rehabilitation, McCabe v. Arave, 827 F.2d 634, 638
(9th Cir. 1987). But a prison may censor depictions of nude or scantily clad minors
on the ground that consumption of such images inhibits rehabilitation of sex
offenders, not by exposing them to corrupting ideas, but by feeding their desires to
perform criminal acts. See, e.g., Ahlers v. Rabinowitz, 684 F.3d 53, 58, 65 (2d Cir.
2012) (holding that the government interest in rehabilitating prisoners convicted of
sexually abusing minors justified withholding “images of children in bathing suits”).
Generally, the prison bears the burden of proving the existence of a “rational
connection” between the challenged regulation and a legitimate government interest.
See Murchison v. Rogers, 779 F.3d 882, 887-88 (8th Cir. 2015). This does not
require proving that “the regulation in fact advances the government interest,” but it
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does require proving that the policymaker “might reasonably have thought that it
would.” Amatel, 156 F.3d at 199. Unless a rational connection between the
regulation and the asserted interest is a matter of “common sense,” id., the prison
“must proffer some evidence to support” the existence of such a connection, Shimer
v. Washington, 100 F.3d 506, 509-10 (7th Cir. 1996). See also Turner, 482 U.S. at
97-99 (holding a regulation unconstitutional after noting that the prison “pointed to
nothing in the record suggesting” the existence of a rational connection between the
regulation and the asserted government interest and that “[c]ommon sense likewise
suggests that there is no [such] connection”).
The “second factor . . . is whether there are alternative means of exercising
the right that remain open to prison inmates.” Turner, 482 U.S. at 90. The Supreme
Court has held that this factor weighs in favor of the constitutionality of a prison’s
regulation of incoming mail if the regulation “permit[s] a broad range of publications
to be sent, received, and read.” Thornburgh, 490 U.S. at 417-18.
The “third consideration is the impact [that] accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally.” Turner, 482 U.S. at 90. This factor weighs in favor of
the constitutionality of a regulation censoring material that would inhibit some
inmates’ rehabilitation and that “would likely be disseminated” throughout the
prison. See Dawson, 986 F.2d at 262; Amatel, 156 F.3d at 201 (“Even if
pornography could be directed only to those not likely to be adversely affected, it
could find its way to others, interfering with their rehabilitation and increasing
threats to safety.”).
“Finally, the absence of ready alternatives [to the regulation] is evidence of
the reasonableness of a prison regulation.” Turner, 482 U.S. at 90. “By the same
token, the existence of obvious, easy alternatives may be evidence that the regulation
is not reasonable, but is an exaggerated response to prison concerns.” Id. (internal
quotation marks omitted).
-7-
Here, the defendants do not deny that the First Amendment, incorporated
against the states through the Fourteenth Amendment, generally protects the right to
possess many of the materials that the Policy censors, including the materials that
Sisney sought. There is no dispute, then, that the Policy triggers Turner’s test by
“imping[ing] on inmates’ constitutional rights,” Turner, 482 U.S. at 89, and Sisney’s
constitutional rights in particular. Accordingly, we apply Turner’s test to Sisney’s
claims.
III.
We begin with Sisney’s as-applied challenges, see Sisney I, 886 F.3d at 698-
99, considering each of the contested materials in turn and asking “whether a ban on
th[at] particular item[] is reasonably related to a legitimate penological objective,”
Murchison, 779 F.3d at 887. Because Sisney did not cross-appeal, we consider only
those of Sisney’s as-applied challenges that the district court sustained on summary
judgment; namely, those that concerned Thrones of Desire; Pride and Prejudice:
The Wild and Wanton Edition; Matisse, Picasso and Modern Art in Paris; and the
nine pictures of Renaissance artwork.
A.
We begin with the two erotic novels. In Carpenter v. South Dakota, 536 F.2d
759, 762-63 (8th Cir. 1976), we held that it was “well within the discretion” of prison
officials under Procunier v. Martinez, 416 U.S. 396 (1974), overruled by
Thornburgh, 490 U.S. 401, to censor material whose “primary purpose” was sexual
arousal because such material “would have a detrimental effect upon rehabilitation.”
Martinez’s test was “less deferential” than the test from Turner that replaced it.
Thornburgh, 490 U.S. at 409-13. Therefore, Carpenter’s holding that Martinez
permits prison officials to censor material whose primary purpose is sexual arousal
implies that Turner too permits prison officials to censor material whose primary
purpose is sexual arousal. Furthermore, Thornburgh held that Turner permits
prisons to take an “all-or-nothing” approach to censorship, prohibiting books in their
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entirety if they contain any censorable content. Id. at 418-19. In conjunction, then,
Carpenter and Thornburgh entail that prisons may censor books in their entirety if
they contain material whose primary purpose is sexual arousal. Both erotic novels
at issue here contain graphic descriptions of sexual acts whose primary purpose is
clearly to cause sexual arousal in the reader. 3 Therefore, the Policy is constitutional
as applied to these books in their entirety.
Furthermore, even if Carpenter and Thornburgh did not control the resolution
of Sisney’s challenges to the Policy as applied to the erotic novels, we would reach
the same conclusion by conducting an independent analysis of Turner’s four factors.
As applied to the erotic novels, the Policy clears Turner’s threshold
requirement. Courts have routinely held that there is a rational connection between
censoring pornography and promoting legitimate penological interests. See, e.g.,
Mauro v. Arpaio, 188 F.3d 1054, 1059-60 (9th Cir. 1999) (en banc); Amatel, 156
F.3d at 196-201. True, many of these cases concern bans on pornographic images.
See, e.g., Amatel, 156 F.3d at 194. But see Cline v. Fox, 266 F. Supp. 2d 489, 493-
501 (N.D. W. Va. 2003) (rejecting an as-applied challenge to the censorship of a
pornographic writing); Snelling v. Riveland, 983 F. Supp. 930, 935-37 (E.D. Wash.
1997), aff’d, 165 F.3d 917 (9th Cir. 1998) (rejecting a challenge to a ban that
3
The Amazon.com advertisement for Pride and Prejudice: The Wild and
Wanton Edition, which is in the record, describes the book as follows:
[W]e’ve never been able to see Elizabeth and Fitzwilliam in flagrante
delicto—until now. In this deliciously naughty updating of the beloved
classic, you can peek behind the closed doors of Pemberley’s sexiest
master bedroom—and revel in the sexual delights of your favorite
couple. From first kiss to orgasmic finish, this book is every Austen
fan’s dream come true—the story you love, with the heat turned up to
high. It will come as no surprise that the dashing Mr. Darcy is as
passionate and intense with his knickers off as he is with them on.
The record also includes an excerpt from Thrones of Desire, which we do not reprint
here, that describes in detail a series of masturbations.
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extended to pornographic writings). Nonetheless, common sense confirms that
pornographic writings such as the two at issue here can present the same obstacles
to legitimate penological interests as pornographic images. See Cline, 266 F. Supp.
2d at 497-98 (finding “a common sense nexus” between prohibiting a book with
graphic but exclusively “verbal” descriptions of sexual acts and “legitimate
penological purposes”). Furthermore, the defendants’ censorship of the erotic
novels because of their sexually explicit content “operated in a neutral fashion.” See
Turner, 482 U.S. at 90. Prison officials did not censor the books because they
advanced claims about human sexuality that the prison officials deemed subversive
and therefore worthy of suppression. Instead, prison officials censored the books
because they contained passages “intended to serve no other purpose than to arouse
the sexual desires of those reading the book.”
Given that Turner’s threshold requirement is met, we apply Turner’s
remaining three factors. All three weigh in the defendants’ favor. Turner’s second
factor weighs in the defendants’ favor because censoring the erotic novels is
consistent with “permit[ting] a broad range of publications to be sent, received, and
read.” See Thornburgh, 490 U.S. at 418. Turner’s third factor weighs in the
defendants’ favor because sexually explicit material is likely to find its way through
bartering to the prisoner who finds it most sexually stimulating, potentially
interfering with rehabilitation. See id.; Dawson, 986 F.2d at 262; Amatel, 156 F.3d
at 201. And Turner’s fourth factor weighs in the defendants’ favor because
alternatives such as page-by-page censorship and monitored reading rooms are not
“obvious, easy alternatives.” See Thornburgh, 490 U.S. at 418-19.
Thus, we conclude that the district court erred in granting summary judgment
for Sisney on his claim that the Policy is unconstitutional as applied to Thrones of
Desire and Pride and Prejudice: The Wild and Wanton Edition. Whether under
Carpenter and Thornburgh or under an independent application of Turner, the
defendants were within their discretion to censor these books.
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B.
We reach the opposite conclusion regarding Sisney’s challenge to the Policy
as applied to Matisse, Picasso and Modern Art in Paris and the nine pictures of
Renaissance artwork. As the district court observed, Matisse, Picasso and Modern
Art in Paris “is simply an art book.” Although a few of the featured works include
nudity, the defendants have identified none that even arguably depicts its subject
“lewdly or as engaged in any actual or simulated sexual acts.” The same is true of
Michelangelo’s “David,” the Sistine Chapel, and the other works of art represented
in the nine pictures that the defendants withheld from Sisney. Common sense does
not suggest, and the defendants have offered no evidence to prove, a rational
connection between banning pictures of artwork such as Michelangelo’s “David”
and legitimate government interests such as security and rehabilitation. See Aiello
v. Litscher, 104 F. Supp. 2d 1068, 1080 (W.D. Wis. 2000) (denying prison officials’
motion for summary judgment in part because they “failed to submit any credible
evidence” of a rational connection between banning “great works of art” and
promoting rehabilitation, “and common sense suggests none”). Therefore, the
defendants’ censorship of Matisse, Picasso and Modern Art in Paris and of the nine
pictures of Renaissance artwork fails Turner’s threshold requirement. The district
court properly granted summary judgment for Sisney on his claim that the Policy is
unconstitutional as applied to these items.
IV.
Having resolved Sisney’s as-applied challenges to the Policy, we turn to his
facial challenge based on the claim that the Policy is overbroad.
A.
We begin by addressing the threshold question of subject-matter jurisdiction.
Although neither the district court nor the parties raised this issue, “[w]e have an
obligation to consider sua sponte both our jurisdiction and . . . the jurisdiction of the
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district court.” See Thomas v. United Steelworkers Loc. 1938, 743 F.3d 1134, 1138-
39 (8th Cir. 2014).
The overbreadth doctrine “allow[s] litigants whose own speech could
constitutionally be regulated to challenge overly broad regulations which affect
them.” Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th
Cir. 2006). “Under no circumstances, however, does the overbreadth doctrine
relieve a plaintiff of [his] burden to show constitutional standing.” Id. Nor does it
permit a federal court to adjudicate an issue that has become moot. See Stephenson
v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1311-12 (8th Cir. 1997) (dismissing
an overbreadth challenge as moot). Both rules are jurisdictional. Arizonans for
Official English v. Arizona, 520 U.S. 43, 66-67 (1997). In fact, subject to caveats
inapplicable here, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189-91 (2000), the difference between standing and mootness
doctrines is merely one of “time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its
existence (mootness),” Arizonans for Official English, 520 U.S. at 68 n.22. This
means, among other things, that a federal court lacks subject-matter jurisdiction to
rule on an overbreadth challenge unless it is true right up until the court decides the
question that a favorable decision would likely redress the plaintiff’s injury by lifting
the restriction on his speech. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992) (explaining that the likelihood “that the injury will be redressed by a
favorable decision” is a necessary element of standing (internal quotation marks
omitted)); Advantage Media, 456 F.3d at 801-02 (holding that a plaintiff bringing an
overbreadth challenge lacked standing because a favorable decision would not allow
the plaintiff to engage in the speech at issue).
A corollary of this conclusion is that a federal court lacks subject-matter
jurisdiction to rule on an overbreadth challenge if it is possible to remedy the alleged
overbreadth without enjoining enforcement of those parts of the law that apply to
the plaintiff’s speech. Generally, when confronting a constitutional problem in a
law, courts should “limit the solution” by enjoining enforcement of “any problematic
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portions while leaving the remainder intact.” Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks
omitted); see also New York v. Ferber, 458 U.S. 747, 769 n.24 (1982) (“[I]f [an
overbroad statute] is severable, only the unconstitutional portion is to be
invalidated.”). Sometimes a limited solution is not possible because it would “entail
quintessentially legislative work” (in the case of a statute) or executive work (in the
case of a regulation) that the Constitution does not empower federal courts to
undertake. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329
(2006); Free Enter. Fund, 561 U.S. at 509-10 (holding that to “blue-pencil” a statute
would be to assume an “editorial freedom [that] belongs to the Legislature”). When
that is the case, the court has no choice but to enjoin enforcement of the law in toto.
E.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812 (9th Cir. 2013) (per curiam).
But when a more limited “judicial remedy” is available, the court should adopt it.
See Ayotte, 546 U.S. at 329. And if this limited remedy would leave in effect those
parts of the law that apply to the plaintiff’s speech, then it would not redress the
plaintiff’s injury. See Advantage Media, 456 F.3d at 801-02 (concluding that a
favorable decision on the plaintiff’s overbreadth claim would not redress the
plaintiff’s injury because the challenged provisions were “properly considered
severable” and the plaintiff’s speech “would still violate other . . . provisions”).
Therefore, if a court confronted with an overbreadth challenge decides that it would
be possible to remedy the alleged overbreadth without enjoining enforcement of
those parts of the law that apply to the plaintiff’s speech, then it must dismiss the
challenge for lack of subject-matter jurisdiction. See id. at 799-802; accord Midwest
Media Prop., L.L.C. v. Symmes Tp., Ohio, 503 F.3d 456, 465 (6th Cir. 2007). 4
4
The dissent objects to this conclusion on the ground that it “puts the cart
before the horse.” Post, at 25. “Overbreadth is a merits question,” and “severability
is a remedies question,” it explains, “and a court can only consider either after
determining it has subject-matter jurisdiction.” Post, at 25-26. We agree that
ordinarily a court may consider merits or remedies questions only after confirming
that it has subject-matter jurisdiction. See, e.g., Crawford v. F. Hoffman-La Roche
Ltd., 267 F.3d 760, 764 (8th Cir. 2001). But sometimes a court cannot determine
whether it has subject-matter jurisdiction without addressing questions that are also
relevant to the merits or the remedy. See Brownback v. King, 592 U.S. ---, 141 S.
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Here, the district court construed Sisney’s pro se complaint as bringing a two-
part overbreadth challenge alleging that the Policy’s prohibition on nudity and the
Policy’s prohibition on sexually explicit content were both overbroad. By the time
the district court considered this challenge on remand, it had already sustained all of
Sisney’s as-applied challenges except those that concerned the Coppertone
advertisement and the Pretty Face comics. Sisney’s only remaining injuries were
thus being deprived of these two items. The district court then concluded that a
limited judicial remedy for the alleged overbreadth in the prohibition on nudity was
available that would not bar enforcement of the Policy against either item. Having
reached this conclusion, the district court should have dismissed as moot Sisney’s
claim that the prohibition on nudity was overbroad on the ground that a favorable
decision on this claim would not have redressed either of Sisney’s remaining
injuries. Similarly, the district court concluded that a limited judicial remedy for the
alleged overbreadth in the prohibition on sexually explicit content was available that
would not bar enforcement of the Policy against either the Coppertone advertisement
or the Pretty Face comics. Again, having reached this conclusion, the district court
should have dismissed as moot Sisney’s claim that the prohibition on sexually
explicit content was overbroad on the ground that a favorable decision on this claim
would not have redressed either of Sisney’s remaining injuries. In sum, the district
Ct. 740, 749 (2021) (“[M]erits and jurisdiction will sometimes come intertwined
. . . .”). In that case, the court may—indeed, must—address these questions at the
outset to determine whether it has subject-matter jurisdiction. See, e.g., Hillesheim
v. Holiday Stationstores, Inc., 953 F.3d 1059, 1062 (8th Cir. 2020) (concluding that
the case was moot because “injunctive relief is the only private relief available in a
Title III case”); Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 797-99 (8th
Cir. 2010) (deciding whether a statute authorized monetary damages in order to
determine whether the plaintiffs had standing); Brownback, 141 S. Ct. at 749-50
(explaining that “a court can decide . . . the merits issues” necessary to resolve a
jurisdictional question because “a federal court always has jurisdiction to determine
its own jurisdiction”); Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1068-69 (8th Cir.
2021) (concluding that there was subject-matter jurisdiction under the Railway
Labor Act, 45 U.S.C. § 151 et seq., because the claim could be resolved under
Federal Rule of Civil Procedure 12(b)(6) without interpreting the collective-
bargaining agreement).
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court should have dismissed as moot Sisney’s overbreadth challenge in its entirety
without reaching the merits.
Typically, when a district court enters judgment on a claim that it should have
dismissed as moot, we vacate the judgment and remand with instructions to dismiss
the claim for lack of subject-matter jurisdiction. See, e.g., Brazil v. Ark. Dep’t of
Human Servs., 892 F.3d 957, 960-61 (8th Cir. 2018). In this case, however, the
matter is not so simple. What mooted Sisney’s overbreadth challenge was the
combination of (1) the district court’s rulings on his as-applied challenges, which
left him with only two remaining injuries, and (2) the district court’s choice of
remedy, which redressed neither one. Because neither party appealed the district
court’s choice of remedy, we do not review it. See United States v. Sineneng-Smith,
590 U.S. ---, 140 S. Ct. 1575, 1579 (2020) (explaining that courts should “normally
decide only questions presented by the parties” instead of “sally[ing] forth . . .
looking for wrongs to right”); El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 478-
79 (1999) (holding that the appellate court erred in addressing parts of the district
court’s orders that the parties did not appeal); J.B. Hunt v. BNSF Ry. Co., 9 F.4th
663, 670 (8th Cir. 2021) (“Even assuming the district court erred . . . , it would be
inappropriate for us to [correct the error] because neither party appealed the issue.”).
But the defendants did appeal the district court’s decision to sustain all of Sisney’s
as-applied challenges other than those that concerned the Coppertone advertisement
and the Pretty Face comics. And, after reviewing this decision, we concluded that
the district court erred with respect to the two erotic novels, Thrones of Desire and
Pride and Prejudice: The Wild and Wanton Edition. See supra Section III.A.
Before remanding with instructions to dismiss Sisney’s overbreadth challenge as
moot, then, we must determine whether it remains true that the challenge is moot
now that two additional injuries have survived resolution of Sisney’s as-applied
challenges.
With respect to Sisney’s claim that the prohibition on nudity is overbroad, the
answer is “yes.” A favorable decision on this claim would trigger the district court’s
remedy for the alleged overbreadth in the prohibition on nudity—again, not because
-15-
we would affirm this remedy were we to review it de novo but because neither party
appealed it. The district court’s remedy was to enjoin the enforcement of the
prohibition on nudity except against nudity involving minors. But the defendants
censored the erotic novels under the Policy’s prohibition on sexually explicit
content. Because the district court’s remedy for the alleged overbreadth in the
prohibition on nudity did not affect the prohibition on sexually explicit content, it
would not bar enforcement of the Policy against either book. Thus, a favorable
decision on Sisney’s claim that the prohibition on nudity is overbroad would not
redress any of Sisney’s remaining injuries. Sisney’s claim that the prohibition on
nudity is overbroad is therefore moot. 5
The same is not true about Sisney’s claim that the prohibition on sexually
explicit content is overbroad. A favorable decision on this claim would trigger the
district court’s remedy for the alleged overbreadth in the prohibition on sexually
5
The dissent argues that a case or controversy currently exists on this point
because “[t]he aggrieved parties now are the prison officials, so the question for us
is whether we can give them any effective relief if we decide the appeal in their
favor.” Post, at 26 (internal quotation marks and brackets omitted). We disagree.
The requirement that the plaintiff’s injury be redressable by a favorable resolution
of his claim “subsists through all stages of federal judicial proceedings, trial and
appellate.” Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also Whitfield v. Thurston,
3 F.4th 1045, 1047 (8th Cir. 2021) (explaining that mootness “occurs when the
requisite personal interest that gave the plaintiff standing to bring the suit disappears
as the case proceeds” (internal quotation marks omitted)). We cannot evade this
requirement in cases where the defendant lost before the district court by substituting
the defendant’s injury of having suffered an adverse judgment for the injury that
gave the plaintiff standing to sue in the first place. See, e.g., Gillpatrick v. Frakes,
No. 4:18CV3011, 2019 WL 7037367, at *8 (D. Neb. June 7, 2019) (enjoining the
enforcement of a prison policy), vacated as moot, 997 F.3d 1258 (8th Cir. 2021)
(holding that the prison officials’ appeal of the injunction was moot because the
plaintiffs’ injury was no longer redressable). To be sure, we may vacate the district
court’s judgment in such a case. See Gillpatrick, 997 F.3d at 1259. But redressing
the adverse judgment against the defendant does not require—and in any event
Article III does not permit—going beyond vacatur and reaching the merits, as the
dissent would do here. Compare id. with post, at 27-28.
-16-
explicit content—once again, not because we would affirm this remedy on de novo
review but because neither party appealed it. The district court’s remedy involved
enjoining the enforcement of the prohibition on sexually explicit content against any
nonperiodical publication that does not “promote[] itself based on pornographic
content.” Unfortunately, the term “based on” is ambiguous. On one interpretation,
a publication “promote[s] itself based on pornographic content” if its promotional
materials allude to the fact that the publication contains pornographic content. On
another interpretation, a publication “promote[s] itself based on pornographic
content” only if its promotional materials themselves contain pornographic content.
On the first interpretation, the district court’s remedy would not bar enforcement of
the Policy against Pride and Prejudice: The Wild and Wanton Edition, whose
Amazon.com advertisement broadcasts the fact that it contains pornographic
content, and it likely also would not bar enforcement of the Policy against Thrones
Desire, whose book cover seeks to entice the reader with a picture of a scantily clad
woman and a promise of “erotic tales” within. On the second interpretation,
however, the district court’s remedy likely would bar enforcement of the Policy
against both books because there is no evidence of pornographic content in the
books’ promotional materials themselves. Given the district court’s conclusion that
the First Amendment protects both books, we presume that the district court
understood its fine-tuned remedy for the Policy’s overbreadth to bar enforcement of
the Policy against both books. Accordingly, we adopt the second interpretation of
the district court’s remedy and conclude that a favorable decision on Sisney’s claim
that the prohibition on sexually explicit content is overbroad would likely redress
Sisney’s injuries of being deprived of the erotic novels. Sisney’s claim that the
prohibition on sexually explicit content is overbroad is therefore not moot.
Thus, we will remand with instructions to dismiss as moot Sisney’s claim that
the prohibition on nudity is overbroad. But Sisney’s claim that the prohibition on
sexually explicit content is overbroad remains a live case or controversy thanks to
our reversal of the district court’s ruling on his as-applied challenges regarding the
erotic novels. Consequently, were we to vacate and remand on this claim, we would
need to instruct the district court to reach the merits for a second time. And this
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would be a futile exercise because the district court has already indicated that it
agrees with Sisney that the prohibition on sexually explicit content is overbroad.
Accordingly, rather than necessitate a third appeal in this case, we settle the matter
here. See Crown Cork & Seal Co. v. Int’l Ass’n of Machinists & Aerospace Workers,
501 F.3d 912, 916 (8th Cir. 2007) (deciding a question on appeal rather than
remanding because “remand would be inefficient and unnecessary”).
B.
Unlike a typical facial challenge, which requires showing that “no set of
circumstances exists under which” the law could be constitutionally applied, a First
Amendment overbreadth challenge requires showing only that “a substantial number
of [the law’s] applications are unconstitutional, judged in relation to [the law’s]
plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 472-73 (2010).
“The first step in overbreadth analysis is to construe the challenged [law]; it is
impossible to determine whether a [law] reaches too far without first knowing what
the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Just as this
court does with respect to federal laws, see, e.g., Union Pac. R.R. v. U.S. Dep’t of
Homeland Sec., 738 F.3d 885, 892-93 (8th Cir. 2013); Chu Drua Cha v. Noot, 696
F.2d 594, 596 (8th Cir. 1982), the South Dakota Supreme Court construes South
Dakota laws in accordance with the doctrine of constitutional avoidance, which
requires adopting a construction of a law that avoids questions about its
constitutionality if such a construction is “fairly possible,” see State v. Big Head,
363 N.W.2d 556, 559 (S.D. 1985). Generally, we construe a state’s laws according
to that state’s principles of construction. E.g., Behlmann v. Century Sur. Co., 794
F.3d 960, 963 (8th Cir. 2015). Whether this case is an exception depends on whether
the First Amendment precludes applying the doctrine of constitutional avoidance in
the context of an overbreadth challenge.
We conclude that it does not. We recognize that the Fifth Circuit has
suggested otherwise, attributing to the U.S. Supreme Court a “decision not to rely
upon the canon of constitutional avoidance in the overbreadth context.” See Serafine
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v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016) (internal quotation marks omitted)
(citing Stevens, 559 U.S. at 481); cf. Turchik v. United States, 561 F.2d 719, 723-24
(8th Cir. 1977) (stating in dicta that “the preferred position of the First Amendment
greatly weakens” the doctrine of constitutional avoidance in the context of an
overbreadth challenge). But we respectfully disagree with the Fifth Circuit’s reading
of Stevens, where the Supreme Court merely asserted the unremarkable proposition
that the doctrine of constitutional avoidance is not a license to “rewrite a . . . law to
conform it to constitutional requirements,” 559 U.S. at 481, a proposition that it has
also recited outside the First Amendment context, see, e.g., Seila Law LLC v. CFPB,
591 U.S. ---, 140 S. Ct. 2183, 2207 (2020). In fact, the Supreme Court has explicitly
endorsed the doctrine of constitutional avoidance in the context of overbreadth
challenges. Osborne v. Ohio, 495 U.S. 103, 119-20 (1990) (rejecting the
“content[ion] that . . . a court may not construe [a] statute to avoid [First
Amendment] overbreadth problems” and upholding “the State Supreme Courts’
ability to narrow state statutes so as to limit the statute’s scope to unprotected
conduct”); Ferber, 458 U.S. at 769 n.24 (“When a federal court is dealing with a
federal statute challenged [under the First Amendment] as overbroad, it should, of
course, construe the statute to avoid constitutional problems, if the statute is subject
to such a limiting construction. . . . A state court is also free to deal with a state
statute in the same way.”); see also Wis. Right to Life, Inc. v. Barland, 751 F.3d 804,
811 (7th Cir. 2014) (recognizing that the Supreme Court has engaged in “application
of the constitutional-avoidance doctrine to address . . . overbreadth concerns”);
accord United States v. Miselis, 972 F.3d 518, 531 (4th Cir. 2020) (“In [construing
an allegedly overbroad statute], we must seek to avoid any constitutional problems
by asking whether the statute is subject to a limiting construction.” (internal
quotation marks and brackets omitted)); United States v. Brune, 767 F.3d 1009,
1023-24 (10th Cir. 2014) (applying constitutional avoidance to an overbreadth
challenge). Therefore, the First Amendment does not preclude applying the doctrine
of constitutional avoidance in this case.
Reading the Policy in light of the doctrine of constitutional avoidance, we
conclude that Sisney failed to show that the Policy’s prohibition on sexually explicit
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content is “substantially overbroad.” See Stevens, 559 U.S. at 482. Sisney’s most
compelling example of allegedly sexually explicit content protected by the First
Amendment is the Bible. But the Policy’s definition of “sexually explicit” limits
sexually explicit writings to those that include “graphic” descriptions of sexual acts.
An interpretation of the word “graphic” on which the passages from the Bible that
Sisney cites do not include “graphic” descriptions of sexual acts is fairly possible,
even plausible. The first passage recounts how King David saw Bathsheba “washing
herself” and “lay with her.” 2 Samuel 11:1-5 (KJV). In the second passage, from
the Song of Solomon, the lover tells his beloved that her “stature is like to a palm
tree, and [her] breasts to clusters of grapes” and declares that he “will take hold the
boughs thereof.” Song of Solomon 7:1-10 (KJV). Neither of these brief allusions to
a sexual act, the first cloaked in euphemism and the second in metaphor, paints a
“vivid picture with explicit detail,” “Graphic,” The New Oxford American
Dictionary 756 (3d ed. 2010), or offers a “clear lifelike or vividly realistic
description,” “Graphic,” Merriam-Webster’s Collegiate Dictionary 545 (11th ed.
2005).
To be sure, even construed narrowly, the Policy’s prohibition of sexually
explicit content extends to some literary works that many hold in high esteem. In
most cases, however, censoring these works will pass constitutional muster for the
same reasons that censoring Thrones of Desire and Pride and Prejudice: The Wild
and Wanton Edition did. We are unpersuaded that consistent application of the
prohibition as we have construed it will limit inmates’ access to literature so severely
that the defendants can no longer be said to “permit a broad range of publications to
be sent, received, and read.” See Thornburgh, 490 U.S. at 418.
It is true, as Sisney points out, that the defendants have suggested that they
could enforce the Policy’s prohibition on sexually explicit content against the Bible
if they chose to do so. But although we defer to a state agency’s interpretation of its
own regulation “if the meaning of the words used is in doubt,” Smith v. Sorensen,
748 F.2d 427, 432 (8th Cir. 1984) (citing Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 413-14 (1945)), we do so only after applying canons of construction such
-20-
as the doctrine of constitutional avoidance, see Kisor v. Wilkie, 588 U.S. ---, 139 S.
Ct. 2400, 2415 (2019) (holding that “a court must exhaust all the traditional tools of
construction” before “resort[ing] to Auer deference” (internal quotation marks
omitted)); Union Pac. R.R., 738 F.3d at 893 (“Constitutional avoidance trumps even
Chevron deference, and easily outweighs any lesser form of deference we might
ordinarily afford an administrative agency . . . .”). Here, applying the doctrine of
constitutional avoidance resolves Sisney’s claim that the Policy’s prohibition on
sexually explicit content is overbroad. Consequently, we “ha[ve] no business
deferring to any other reading, no matter how much the agency insists it would make
more sense.” Kisor, 139 S. Ct. at 2415.
We conclude that although resolution of Sisney’s as-applied challenges does
not moot his claim that the Policy’s prohibition on sexually explicit content is
overbroad, this claim fails on the merits.
V.
Finally, we address Sisney’s motions for sanctions. The Eleventh
Amendment does not bar a federal court from enforcing its orders against a state
entity, including, if necessary, by sanctions. Hutto v. Finney, 437 U.S. 678, 689-93
(1978). But “civil contempt should not be resorted to where there is a fair ground of
doubt as to the wrongfulness of the defendant’s conduct.” Taggart v. Lorenzen, 587
U.S. ---, 139 S. Ct. 1795, 1801 (2019) (internal quotation marks, alterations, and
emphasis omitted); see also King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir.
1995) (requiring the movant to establish, among other things, that the alleged
“contemnor has not diligently attempted to comply in a reasonable manner”).
“There are two kinds of civil contempt penalties a court can impose.” Klett v.
Pim, 965 F.2d 587, 590 (8th Cir. 1992). “The first is a coercive penalty . . . designed
to force the offending party to comply with the court’s order.” Id. The second is
compensation to the movant for damages incurred “as a result of the offending
party’s contempt.” Id. “A court cannot impose a coercive civil contempt sanction
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if the underlying [order] is no longer in effect.” Id. In contrast, a contempt sanction
compensating the movant for damages incurred as a result of the offending party’s
noncompliance while the order was in effect remains appropriate even after the order
is no longer in effect, unless the order was “vacated because it was issued
erroneously.” Id. Under no circumstances may a federal court impose any kind of
sanction for contempt of another court’s order. Id. at 590-91 (citing 18 U.S.C.
§ 401).
Here, Sisney seeks both coercive and compensatory sanctions for the
defendants’ alleged refusal to comply with our order denying their motion for a stay
of the district court’s injunction pending this appeal. 6 Now that we have resolved
the appeal, this order is moot and thus no longer in effect. See In re Champion, 895
F.2d 490, 492 (8th Cir. 1990) (per curiam) (dismissing a motion for a stay pending
appeal as moot after resolving the appeal); Klett, 965 F.2d at 590 (treating an order
as no longer in effect for purposes of sanctions once it has become moot). Therefore,
we must deny Sisney’s request for coercive sanctions. Of course, Sisney remains
free to ask the district court to impose coercive sanctions on the defendants if he
believes that they are refusing to comply with those parts of the district court’s
injunction that we have affirmed. Because we are not “the court that issued [the]
injunction,” however, we would be unable to grant any such request. See Klett, 965
F.2d at 591.
As for Sisney’s request for compensatory sanctions, we conclude that Sisney
failed to show that the defendants “ha[ve] not diligently attempted to comply in a
reasonable manner.” See King, 65 F.3d at 1058. Sisney presents evidence that, five
days after we denied the motion to stay, a prison official refused to release material
that an inmate argued was protected under the district court’s order on the ground
that the Policy “will continue to be followed as written” while the motion was
pending. But Sisney presents no evidence that this official knew that we had just
6
Sisney also seeks sanctions for the defendants’ alleged failure to comply with
the district court’s discovery orders. We cannot grant this request because we are
not the court that issued the orders. See id.
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denied the motion. On the contrary, the text of the official’s response suggests that
he believed that the motion was still pending. And the defendants have submitted
evidence that, upon receiving notice of our denial of their motion to stay, they
promptly initiated a process for bringing their procedures into compliance with the
district court’s order, including implementing the district court’s suggestion to create
viewing rooms for the consumption of sensitive material. In the meantime, the
defendants were “keeping material for delivery once viewing rooms are established
and opened.” While the defendants may not have achieved full compliance as
swiftly as they might have, and certainly not as swiftly as Sisney would have liked,
we cannot say that there is no “fair ground of doubt as to the wrongfulness of [their]
conduct” with respect to our denial of their motion to stay. See Taggart, 139 S. Ct.
at 1801 (emphasis omitted). Therefore, Sisney is not entitled to compensatory
sanctions for the defendants’ alleged violations of our order denying their motion
for a stay.
Of course, whether Sisney is entitled to compensatory sanctions for the
defendants’ alleged violations of those parts of the district court’s injunction that we
have affirmed is another question, one that he is free to raise with the district court.
Again, however, because we did not issue the injunction, we cannot impose
sanctions for violations of it. See Klett, 965 F.2d at 591.
VI.
In sum, for the reasons explained above, we resolve this appeal as follows.
We reverse the district court’s grant of summary judgment for Sisney and remand
for entry of summary judgment for the defendants on Sisney’s challenge to the
Policy as applied to Thrones of Desire and Pride and Prejudice: The Wild and
Wanton Edition. We affirm the district court’s grant of summary judgment for
Sisney on his challenge to the Policy as applied to Matisse, Picasso and Modern Art
in Paris and the nine pictures of Renaissance artwork. We vacate the district court’s
grant of summary judgment for Sisney on his claim that the Policy’s prohibition on
nudity is overbroad, vacate the remedy issued in connection with this summary-
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judgment ruling, and remand with instructions to dismiss this claim for lack of
subject-matter jurisdiction. We reverse the district court’s grant of summary
judgment for Sisney on his claim that the Policy’s prohibition on sexually explicit
content is overbroad, vacate the remedy issued in connection with this summary-
judgment ruling, and remand for entry of summary judgment for the defendants on
this claim. We dismiss as moot Sisney’s request for coercive sanctions for the
defendants’ alleged violations of our denial of their motion to stay. We deny
Sisney’s request for compensatory sanctions for the defendants’ alleged violations
of our denial of their motion to stay. And we deny Sisney’s request for sanctions for
the defendants’ alleged violations of the district court’s orders.
STRAS, Circuit Judge, concurring in part and dissenting in part.
The word “moot” should not appear in this opinion. The parties do not raise
it, the district court did not discuss it, and there is no reason for us to delve into the
issue either. Nothing about this case is moot.
Consider the procedural history. Sisney sued several prison officials who
used a 2014 prison policy to prevent him from accessing four Pretty Face comics;
two erotic novels named Thrones of Desire and Pride and Prejudice: The Wild and
Wanton Edition; an art book called Matisse, Picasso, and Modern Art in Paris;
reproductions of Michelangelo’s and Lorenzo Ghiberti’s works; and a Coppertone
advertisement. The policy prohibited “pornograph[y],” including “material[s]” that
feature “nudity or sexually explicit” content.
Sisney raised two types of First Amendment challenges. The first was as
applied, meaning he was challenging the policy’s application to him. See
Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 790 (8th Cir. 2004) (defining
an “as-applied challenge” as one “to the statute’s application only as-applied to the
party before the court”). The second was “facial overbreadth,” which required him
to show that “the impermissible applications of the [policy],” including to other
inmates, were “substantial when judged in relation to the [its] plainly legitimate
-24-
sweep.” Id. at 791 (explaining that the reason for allowing this type of claim is “to
eliminate the deterrent or chilling effect an overbroad law may have”). Sisney
personally had to have Article III standing to raise either type of challenge, but
overbreadth challenges are unique in the sense that they loosen third-party standing
requirements by allowing plaintiffs to raise the “First Amendment rights of others.”
Id. at 792.
In addressing the as-applied challenges, the district court gave Sisney access
to some materials but not others. He could have the Michelangelo and Ghiberti
reproductions, the erotic novels, and the art book, but the Coppertone advertisement
and Pretty Face comics remained off-limits. Moving onto overbreadth, the court
did not give Sisney access to anything else, but it rewrote the policy after concluding
that it was substantially overbroad. By removing the words “nudity or” from the list
of “pornographic material[s],” the rewritten policy is now narrower than before.
Aggrieved by the now-watered-down policy, prison officials appeal the overbreadth
ruling.
None of this procedural history is disputed, and it is in fact quite ordinary,
other than the district court’s decision to rewrite the policy. Still, the court concludes
today, without input from the parties, that Sisney’s failure to appeal the remedy
presents a mootness problem. And best I can tell, the reason is that the district
court’s remedy—removing the words “nudity or” from the policy—mooted Sisney’s
overbreadth claim. What gets lost, however, is that the overbreadth claim has never
been moot and prison officials, rather than Sisney, filed the appeal.
To the extent the court suggests that Sisney’s overbreadth claim was moot
because the revisions to the policy did not restore his access to the Pretty Face
comics or the Coppertone advertisement, this analysis puts the cart before the horse.
Overbreadth is a merits question, see Bd. of Trs. of the State Univ. of N.Y. v. Fox,
492 U.S. 469, 482–83 (1989), severability is a remedies question, see Seila L. LLC
v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2207 (2020), and a court can only
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consider either after determining it has subject-matter jurisdiction. Simply put: the
remedy cannot moot the underlying claim.
The proof is in the pudding. There can be no dispute that Sisney still had an
injury when the district court moved onto the overbreadth challenge: his lack of
access to the Pretty Face comics and the Coppertone advertisement. If the district
court had enjoined prison officials from enforcing the whole policy, rather than
taking the highly unusual step of rewriting it, then Sisney’s access to those two items
would have been restored. See, e.g., Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,
790 (2011); Willson v. City of Bel-Nor, Mo., 924 F.3d 995, 999 (8th Cir. 2019).
Regardless of what the court actually did, the fact that it could have fashioned “some
form of meaningful relief” by enjoining enforcement of the entire policy was enough
to keep the controversy alive. See Church of Scientology of Ca. v. United States,
506 U.S. 9, 12–13 (1992).
To the extent the court is concerned that there is currently no case or
controversy, there is no reason to be. The aggrieved parties now are the prison
officials, so the question for us is whether we can give them “any effective relief” if
we decide “the [appeal] in [their] favor.” 7 Garcia v. Lawn, 805 F.2d 1400, 1402 (9th
7
The court’s claim that Sisney must still be aggrieved for the defendants to
appeal cannot be correct. See ante, at 16 n.5. Otherwise, any time a plaintiff
prevails, the defendant could not appeal. Indeed, under the court’s reasoning, even
if the district court had enjoined the entire policy, the defendants would be stuck
because “the plaintiff’s injury” would no longer be “redressable by a favorable
resolution of his claim,” which the court thinks must “subsist[] through all stages of
federal judicial proceedings, trial and appellate.” Ante, at 16 n.5 (emphasis added)
(quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). To be sure, as in Spencer, if the
plaintiff is appealing, then there must be a continuing injury that is redressable by
appellate review. See Spencer, 523 U.S. at 7 (stating that the “case-or-controversy
requirement subsists through all stages of federal judicial proceedings,” not that the
plaintiff’s injury must continue on appeal (citation omitted)). But not when the party
appealing is somebody else. See Hollingsworth v. Perry, 570 U.S. 693, 705 (2013)
(explaining that Article III’s requirements “must be met by persons seeking appellate
review” (citation omitted)). The reason, of course, is that an adverse judgment is
-26-
Cir. 1986) (“The test for mootness of an appeal is whether the appellate court can
give the appellant any effective relief in the event that it decides the matter on the
merits in his favor. If it can grant such relief, the matter is not moot.” (emphasis
added)); see also Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995).
Viewed through this lens, I have no doubt that we can. The prison officials
have challenged the district court’s overbreadth ruling because they want to ban
additional items containing nudity that are now available to prisoners under the
narrowed policy. If we agree with them that Sisney failed to meet his burden of
proving that the prison’s original policy was substantially overbroad, then not only
will they be able to potentially withhold additional items from Sisney, but from other
prisoners too. See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982); Simon v. E.
Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976).
I would reach exactly that conclusion. Sisney had the “burden of
demonstrating, from the text of the [policy] and from actual fact, that substantial
overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (internal quotation
marks and brackets omitted)). To satisfy this burden, he had to show that “a
substantial number of [the policy’s] applications are unconstitutional, [when] judged
in relation to [its] plainly legitimate sweep.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation marks omitted).
Sisney never made this showing. First, he did not “adduce any evidence that
third parties will be affected in any manner differently from [him]self.” Josephine
Havlak Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905, 912 (8th Cir. 2017)
(concluding that “[i]t is inappropriate to entertain a facial overbreadth challenge”
under these circumstances). Second, even if he proved that the prison’s policy
prevents access to some materials that the First Amendment protects, the record does
not establish how prevalent those materials are, much less how they compare to the
itself a “kind of injury” that supports appellate standing. ASARCO Inc. v. Kadish,
490 U.S. 605, 618 (1989) (citing Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S.
249, 261–65 (1933)).
-27-
quantity of materials that the prison can constitutionally withhold. See Wash. State
Grange, 552 U.S. at 449 n.6 (“We generally do not apply the ‘strong medicine’ of
overbreadth analysis where the parties fail to describe the instances of arguable
overbreadth of the contested law.”). In short, there may well be substantial
overbreadth, but Sisney failed to prove it.
Without proof of substantial overbreadth, there was nothing for the district
court to remedy. Accordingly, rather than dismissing in part for mootness, as the
court does, I would vacate and remand for further proceedings.
______________________________
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