but by cross referencing the statute eighteen u s c section twenty two fifty six that the find sexually explicit conduct in terms of children the actual condition imposed in this case is constitutionally overbroad because it does include material larger than we would think of as pornographic and that are also protected by the first amendment now this case is controlled by murky but there is one significant difference that ultimately won't matter to the conclusion and that is states versus nurture the district court finds sexually explicit conduct by reference to eighteen u s c section twenty two fifty six which requires the sexually explicit conduct to be actual or simulated here the district court was slightly different in that the imposition of that condition is referenced by eighteen us c section twenty two fifty seven section twenty two fifty seven is different only and that requires that the conduct be actual and not simulated make all the difference no you would think your honor but at least united states versus narky that panel anticipated that actual and simulated weren't that different there at least two places in the opinion where the court made clear that they were addressing both actual  simulated conduct the beginning at eleven sixty three of narky the court found quote by employing the language from the statute intending to apply only child pornography the plain language  includes any depiction of actual or simulated adult sexual intercourse however fleeting or veiled in regard less of all in writing than if that's the problem you can't have a condition with respect to adult material that covers simulated but this one doesn't it's only actual and so that seems to me to eliminate any problem on that front you've got i thought your whole argument rested on what is it it's to a you know a little little v if that was the provision that you were focused on  pelvic region which is the little five at the core that's what that is not what that provision covers though right i mean that you could go and look at you know painting in a museum and not have become bored by that i don't think you could draw on and what the court had concern with  you think was was understandable it's not however fleeting and that was the same reference and of course it was the same reference also to other issues of sexually explicit conduct i think ultimately what the court was trying to do your honor was trying to do an end run around trying to define pornographic because this court and other courts have struggled with the finding out term in the past and so i think that's why the ne court fixes i will call it was we're going to generally explain what pornographic means imported graphic could include a number of things listed in twenty six six but ultimately was left at the discretion of the probation officer the court wouldn't get back in the business of defining pornography i don't think that's a legitimate work around it might have been an earthy in part because the district court only had united states versus riordan from two thousand and three which is a plain era case and so i think the ninth circuit understood that the district court might not have had a good way to define sexually explicit conduct and i think i understood the gist of what was trying to do so and the district  was going after pornographic i think i'm going the following year too why is this case different from murphy in what respect john well in the condition it's it's generally almost the same condition or with that with the slight change of wording here it has to be actual and murky to be actual or simulated and it's the same condition yes your honor if generally i would intercourse or as they put it full frontal nudity so i think the court understood reference to twenty two fifty six included the public regent it wasn't just genitalia and so that twenty two fifty six has to be broader than we would generally consider pornographic i think that that the court here could find a way to salvage the condition if it was to narrow it so it did not include first entered protected speech  client doesn't retain his full first amendment rights after he's been convicted and placed on supervision right he may not it depends and that's what really gets down to the intent of the court and their record evidence that there have been times where this court has found that a person on supervised release probation or parole does not enjoy the full panoply of first in a protected rights under the right circumstances but so i mean let's just put it in practical terms here in and tell me why the this record here as i understand it what led to your client's criminal conduct here it started out with something like as innocent as playboy it goes right just you know kind of i don't know whatever you call that adult pornography yes you are perfectly lawful you can go and buy and that's not illegal you have maybe even have a first amendment right to view that if you want but anyway that's what led him kind of down this downward spiral and what i think all th report was trying to do you say you are not to have access to that same kind of material for obvious reasons and i don't know what better way the district court could have imposed that condition other than to adopt the  definition from twenty to fifty six i agree with part of what you said your honor i think that the district court intended to prevent mr narky from accessing what we generally refer to as pornographic materials however twenty to fifty seven veils for the same reason twenty two fifty six veils and here is what twenty two fifty seven stephanie in excess of sexually explicit conduct relies on the same definition issue in narky a statute twenty fifty six that applies to child pornography which is an easier definition to meet so i agree with the court that i think that the district court stated intent was to prevent mr sherman from accessing pornographic materials but reference to twenty two fifty seven is broader pornography in my view the fact that we have problems in the past and so i would agree that this court or the district court it would have been improper to say no not possess pornography because that would be subject to interpretation however the court could i would suggest add language that is currently and the condition that would make it comply with the first name and not be overbroad what i would suggest is and this is taking language to the oxford english dictionary if the court was to add the following language to a condition nine or so if we not possess or view any materials such as videos magazines photographs computer images or other matter that depicts sexually explicit conduct involving children as the find by eighteen us c section twenty two fifty six of to and or actual sexual sexually explicit conduct involving adults as the find by eighteen u s c section twenty two fifty seven h one which when taken as a whole are intended intended to stimulate erotic rather than ascetic or emotional feel and that's covered by by five but by the little little five right i would disagree your honor because it's the problem with little five and that what the north can court made clear is that it can be fleeting so you can have an entire work for instance american beauty or brokeback mountain and if you had ten seconds with end of within that video that could have something that was full frontal nudity it would taint the whole work i don't think that in a movie like that would be covered by little fun i think it is a month at a time i would i think it is and then archy court found that it was so i would agree with the norgay court that it must be covered found that because the definition there covered both actual and simulated that was the problem that's the problem there that is not present here that's why this case is different you or i would say this but i think it's the or not in and if the court would have said it includes actual and simulated i would agree with you i think the use of or is important you can read out the other wor it please the court daniels up on behalf of united states your honor the condition in this case is distinguishable from that and murky for two reasons one as you just pointed out and that's a critical one the condition here only applies to depictions of actual sexual intercourse or not simulated so why is your opponent not correct in saying i don't know why everyone picks american beauty but plots just pick that movie why would that not be covered by the condition that's imposed in this case well because the actors in that movie  not actually having sex with each other in the movie it's a simulation but we're talking about little five we're not talking about little ones which are all sexual intercourse right obviously that's simulated but what about how does a little five work th and still be sort of an r rated movie i mean that by definition is moving you what a reasonable person would to understand that to be an x rated film so i think it that are you saying i mean that the distinction is either x rated r rated to some extent but to some extent it doesn't even matter whether it's are rated or x rated as your honor pointed out there's restrictions on first amendment rights that are appropriate in the supervised release area so even if there were some movie where there was less obvious display of genitals that was still r rated that still had some first amendment rights attached to it the district court the question here is whether just a court would still be within its discretion and restricting that the c b s display of genitals to this specific defendant given his history and given what's in the record so even if it did france to some extent even if it did qualify as didn't qualify as pornography the court would still be well within its discretion here given the fact that this defendant and method to f b i agents that he started with playboy as he said and then became desensitized over time and even found more and more extreme adult pornography which led to child pornography which ultimately led him to taking photographs of children out on the street and masturbating to them and sort of fantasizing about the friend of his it isn't the issue  whether the defendant then is on notice a what he can do not to and is a condition sufficiently clear to allow the defendant to behave consistent with the condition that's correct your hon i believe it is in this case certainly this condition is more clear than other conditions that this court has held and the and and riordan and daniels this one is specific first of all it doesn't cover simulated conduct which as i mentioned would eliminate most of the concerns of murky about covering r rated movies in addition the geographic scope of this condition is much more limited and that if you read narky throughout that that opinion was very concerned about this idea not only that you could be restricted from an r rated movie but you could be restricted from going to any place where that type of material is sold here the further narrow this condition to include only places where the materials are entertainments are the primary material available so i think when you read that combination of actual sexual conduct or lascivious exhibition of genitals and with with this primary geographic location a reasonable person is going to understand that to mean don't watch x rated videos and don't go to porno shops essentially i'm not sure that there's a way that to make this more clear as to what the defendant is or isn't allowed to do in this case and like i said it's certainly more narrow than than other conditions this court has upheld in the past and then finally the third narrowing factor is that the court when defense raised the possibility that he might need access to pornography as part of his review rehabilitation the court allowed that that would be something it would consider in a sort of more controlled setting so that at limitation to actual conduct limit geographic limitation and the possibility of rehabilitation all made if this court agrees that ultimately the condition as written by the by the district court implicates the first time rights of mr sherman then i think that there are two choices limit the condition if i suggested or remain to the district court for further proceedings to determine whether or not there is record evidence that would be sufficient to curtail mr sherman's first amendment rights well what kind of record evidence are you looking for you and i think it would be more similar to what the court found in here the evidence is that as judge walker pointed out that there playboy led to more extreme for late august the playboy i think would generally be considered pornographic under the definition that i've suggested and so if the condition by the district court me to be broader and it would include works of art pieces of of our movies that are broader than what we consider pornographic if condition nine includes does then i don't think the record here is sufficient to curtail that ok