the first case is consolidated three appeals mark lane versus marion sather though i understand he the word the same as to how change law and they rejected that argument that it only applies to true threats cracked yes and according to the bureau of prisons and the fire panel opinion code there are two or three encompasses all threatening statements and that's where the overriding problem arises threats have brought in el defined boundaries unlike a true threat that requires an intentional man's right on a serious expression of an intent to inflict unlawful harm that's imminent but it has to be directed to a particular group or individual code two or three jettisons all of those restrictions it include jokes and hyperbole that are not serious expressions of an intent to harm statements that do not threaten unlawful harm such as in the case of self defense or even a parent threatening i'm really child back at home with discipline so we're supposed to read this in a reasonable fashion and the government  harm you would seek a person a rule from us the threat of bodily harm is not sufficiently particular for for any purposes that it doesn't have any content or meaning that can be understood or applied that's our position because  threat of bodily harm if it's not unlawful would include self defense a threat of bodily harm could include a parent saying to their child when i come home i'm going to slap you upside the head if you don't get your grades up so that's a threat of bodily harm and under the bureau of prisons interpretation all threatening statements so that would be included if there's a narrowing interpretation of the threat that has yet to be put forth by the bureau of prisons ok i want to address the justifications that the government has put forth which is what the scope of the regulation has to be checked against and specifically we have to look at the non truth threats and judge whether the regulations expansion to unprotected speech is a close  with there's interest they put forth and i would say that all of the interests that they fought for it have already been rejected by the supreme court and the affidavit by disciplinary hearing officer hernandez the statement and the suggestion is that any statement by an inmate even if it's in outgoing mail saying that up right well speaking any sort of threat can create an atmosphere of hostility within the institution the supreme court flatly has rejected that reasoning said outgoing personal correspondence from prisoners does not by its very nature pose a serious threat to present order and security and the distinction here is statements within the institution and statements that are directed out s harm against any person or threats of criminal activity which the government says is very close to the language of code two of the three but you don't think that footnote fifteen and the apparent approval of the supreme court is sufficient no because i think what the supreme court was interpreting there was what we had originally put forth which is a prohibition on criminal threats and but no fifteen they said we're not going to take any position on this but this seems to be a reasonable solution and we would agree that if the prohibition and code virtual three were against criminal threats and criminal actions like extortion and outgoing mail then it would be appropriately tailored to say threats of physical harm against any person  or threats of criminal activity that threats of physical harm to any other person i would say would be a true threat if it has those publications and there's nothing and no fifteen to say how they were interpreting that i don't think they were interpreting it as all threats i draw support from not from the bradley versus hall decision of the score where i base pacifically said in invalidating a disciplinary action that involved disrespectful comments they said if those comments were criminal threats then they would be properly disciplined here we suggested that the regular should be limited to criminal threats and that's not bad regulations sco it's broader than that so it's looking at those non criminal threats that we have to judge against their interests the second purported justification for this broad regulation is to encourage positive communication skills and i want to strongly emphasized that that has been a rejected justification because the supreme court has not only said that the interest has to be unrelated to suppressing expression which is exactly what that is but it also says that the bureau of prisons can't tell people how to express their concerns letters when they identify a particular concrete risk of harm then they can censor that mail but here they're proactively saying that prisoners can be disciplined for statements that have no risk of harm may please the court and natalie white represent the respondent in this case federal bureau of prison the court should affirm the district court's rulings both the remain and that's specifically addressed the first amendment issue and then also the earlier ruling that the court found that there was some evidence and all three cases to support the decisions of a d h o's but in response to your honor to some of the comments an argument made by the petitioner i think the most important thing to clarify right out of the gates is the clarification of the quote that  relies on from thornburg and that's where thornburgh is characterizing the nature of these outgoing correspondence in that case it is clear your honor that thornburgh in the supreme court they were referring to the actual outgoing correspondence that was at issue and we're talking about alcoa in correspondence that talked about magnified grievances inflammatory remarks disrespectful language that is what they're referring to when they're talking about by the very nature  having that effect on institutional security your honor this code to three is precisely what form berg and even bradley were contemplating when they were limited to threats of extortion blackmail but could include threats to slap a child on the head your honor i mean obviously everything about this case these cases need to be considered in the present context target the student all threats something like that this is not reasonable and there's also limitations there are impossibilities limitations of someone is threatening to you know harm superman  character that's an impossibility and these prohibited acts are not resolved in a vacuum there's a very fair detailed process involved that involves notice witnesses a chance for the inmate actually explain themselves and there's a reasonable miss in that process every single time there are some times when they consider the actual charge whether it was the appropriate charge with their needs to be a lesser charge maybe it was just an improper use of the mail not an actual is they're using the term criminal threat and they're equating that with the current true threat meaning under a law honest but clearly you're on our back when the thornburgh book uni and bradley were decided the o p s includes the common meaning which is also defined in a lot of us and that's what the p o p uses your honor the government argues that there is a close fit for each does not effect the rehabilitate purpose and that that's been refused that that's that is not true in this particular case the court found clearly that these inmates cannot just use threatening language they have to learn to communicate fairly reasonably with their outside community in fact the administrative remedy procedure is defined and guided by fake federal regulations and that federal regulation explains that not only are the regulations there to protect institutions security the fed regs specifically say that by this process by protecting in social security they're there for also protecting society and we're talking about outgoing mail especially in this case that's going to senate judiciary committee it's going to law enforcement it's going outside of the prison and having that effect there is a concerned there's a concern not only for  effect when it comes back to the prison and the prison has to investigate that threat figure out if it's real we expect the prison to investigate the threat imagine what would happen if they didn't if these threats were allowed to leave the prison to go to law enforcement to go to congress and to be if you decided not to investigate we expect them to that's part of the process now imagine what if it goes to a citizen it's not a threat to the citizen project necessarily what if that citizen receives a letter that says if i don't get my way i'm going to kill a car i'm going to kill somebody else now that citizen is put in a position are they required to act it's a very important  government interest when we talk about public security public safety and rehabilitative bases and other courts have found that that reason alone is enough never mind into institutional security but there's one thing that has come up since the original argument on this case something that i don't think was considered at the time we're talking pre cell phone when these decisions were made you know internets the most recent  staff murder did not occur inside of the prison your honor it occurred outside of the prison and it was choreographed and orchestrated by in my it's inside of the prison so now with the technology in outreach of e mail that last prison guard in puerto rico was murdered on his way home so these outgoing correspondents do have an effect and we take them very seriously at the p o p c you know it w honor i mean that's one thing is while the statute does have some threat it is limited that it's necessarily broad to to catch all these different types of conduct i mean mr lane's case is a perfect example he doesn't necessarily threaten the life of a guard or life of a person in the exact same way every single time in fact he does it differently in the six cases that you're going to hear today and in order to catch all of those we need to have that broad it's broad but not too broad and it doesn't it's not so broad that it prohibits disrespect the language or even coarse language they're allowed to air their grievances they can use volcker language none of those things are prohibited under this it is sufficient tailored as far as the statutes report required as far as the b o p s required i think what's how do you interpret the or any other if and its language your honor clearly in this case that was not something that was applied to petitioner so the facts of his case in that part of the regulation wasn't applied to him however my interpretation and this may be something you may hear about more from my colleague from the central district of california who's coming up next however it is interpreted any other fence when you're talking about a threat imagine and think about the thornburgh reference to threats of black and threats of extortion consider a threat of arson consider a threat and i believe this threat example came from a petition or a threat of causing a riot in the cafeteria which would be a very serious concern for the bureau of prison so whatever the threat is it doesn't necessarily have to be a threat to can include other high level and greater level of offenses but then also criminal offenses as well and your honor in the case where we do have an actual true threat there is a completely different course of action that is taken those cases are referred out to the f b i and investigated for criminal prosecution so there is a completely different avenue that we can use there i just in my last few seconds i think it's important because throughout the briefing and even today petition lists i think i collected up to ten different ways to minimize what has been done in this case they talk about unhappy choice of words ill defined speech and not us statements misdirected jokes i could go on none of those apply in prison contexts it's a very serious environment and if there was a situation where someone did have a joke in it that it could be explained that would be fleshed out to the administrative remedy process your honor the example we've provided wasn't as violent right but as a threat to engage in a nonviolent cafeteria strike which would be included within the scope of code two and three for a threat to commit any other offense the government's examples of the reasons why a code two or three needs to be overbroad all fall within a much narrower range of prescribed conduct which would be encompassed primarily within the true threat or threat of crime contact definition they are suggesting that there is an implicit limitation in code to those three that it doesn't include threats that would be impossible to carry out threats that would be unreasonable or threats where the prisoner can rely on the fair judgment of the disciplinary hearing officer to understand what that they didn't really mean a threat but those limits need to be in the regulation itself in order to comply with the first amendment because the first amendment is concerned not solely with the precise scope of the rules regulation but also with the chilling effect and that's what we're worried about here the government started with a clarification of what they said and thornburgh and i would encourage the court to review that case because they discuss the reasons why when you're regulating outgoing mail that you don't look at the risk from internally directed statements so that's what we're relying on thornburgh and union for because those are exactly what the government has argued is the risk for  threats they say because it might be viewed by somebody within the institution it could create an atmosphere of hostility within the institution and thornburg says now you're not looking at what would happen if those threats were made in the prison  already rejected the idea that you can't use obscene course offensive language that people might find disrespectful or hostile or abusive that they're allowed in their private house going correspondents to express