recognized repeatedly that a special condition of supervised release the bars of the cement from viewing or accessing adult pornography which of course could self important constitutional rights is prohibited unless that condition is based on suggestive of related to sentencing but none of those factors are present and mr francoise case there's no prob there's no question of a history of addiction or problem with adult pornography there's no history of sex offense or misbehavior with either adults or children and there's no specific little health evaluation or other evaluation indicating that mr prince last is in need of this type of a ban except which this court upheld that we're not going to say utomatic then there has to be a justification and we don't have that here there are no percy rules allowing this and there's nothing in this record to support it although the government offers  hypothesizing without evidence the reasons why it might be necessary but we don't have that here and being the only sort of the pacific justification that the government offers that this can be upheld because it's really a subcomponent of the mental health treatment that's part of the it is the requirement that still fails because there's no feeling there's no individualized assessment if you rely on that reasoning and again this court is in the clear there has to be a connection here effectively the vista court just adopted the probation department unexplained imposition of this this weekend on adult pornography there's no specific treatment plan the tradition in in order of seniority judge newman is who is on the line will be given if you have any questions well briefly i take it there's no objection to  condition that he cannot look at child pornography is that right that's correct well doesn't the imposition of a condition that you can look at adults in our graffito void any dispute or series of disputes about whether the object of a or the subject of some still was an adult or a minor well there have been you know in in other cases addressing these types of bans the fact that there are that that child pornography included adults in the chronometer if he doesn't stop the it doesn't change the fact that adult pornography in and of itself is a separate category it is legal it is protected by the   objection to the child pornography then doesn't really it doesn't speak to the propriety of the adult pornography than perhaps i didn't make my question clear enough doesn't the inclusion of the pornography ban of voice any issue where there is a video of a single person not not adults with children but a single person doesn't the ban of voice and the question about whether that person is seventeen or one hundred and ninety i see the idea of trying to make sure that we fully capture and exclude all child pornography is that the the concern that the fact  that something might appear to be adult pornography but in fact include child pornography i'm sorry if i'm not understanding your honour's question that you now you know you understand it precisely ok great thank you so just i mean in general there's always an issue of there can be a question chuck in determining in court not repeat whether or not there are adults or children certainly there are other ways to have to address that and the court has said that as a way of making sure that we fully encompass all children we're going to ban adult pornography as well certainly that was not the reason given here by the district court it was not a reason suggested by probation and been imposing this and it's not a reason that the court this court has used to allow it in other cases where they were where is this court of struck down their hands on adult pornography and so to the extent that an adult pornography ban  child pornography and the court struck down a ban on possessing adult pornography and actually in that case the court as well put down a ban on possessing naked images of children and so certainly that also n images of children raises questions as to being to cross the line between making images and what would be considered child pornography but even with the fuzziness of that particular those types of images the court said no you can't i right and just one other question but what do you say about the government's argument that this is not a total ban but it is less it is really part of the mental health experts judgment in a particular case what the condition states is there's not going to be any access to adult pornography and the mental health provider has the potentials we in so just on the face of it it's a ban of that similarly you're looking at other other thank you ms lee just is is there a form in which such a ban can be imposed are and i'm not putting that very well sorry let me try again is there anywhere in which default could be flipped such that the district court could say if it wants to get go this far you may look at adult pornography unless it is determined by the mental health professionals what you should stop doing that at which point they can stop you right will effectively that's what have this to be interpreted as what's going on here because if the well if it's  adult pornography is allowed and so it is not going to be allowed there has to be a reason given for it or perhaps is it your honor suggested the court could have looked at and said look i'm going to allowed in perhaps in game discretion to be mental health provider to be in it but to do it the other way is problematic because we start from the presumption of it's allowable it's constitutional and it can only be justified when a specific need or connection  shown for it and so that would have been allowable perhaps if the court had looked and said you're allowed and unless they say you're not that's a different issue perhaps of the delegation challenge to that but certainly what we have here with the court biogs to the district court or re sentencing to accomplish that particular objective is that right that's that's correct ok let me then turn to the problem the substan problem and you you've answered my colleague's questions about this term banning and i guess this is repeating that what judge they're going to ask you is your client actually banned from a accessing adult pornography i mean is that not the case that he can access that material with the approval of his sex offense treatment provider well it's i mean it is he is banned in the absence of getting special permission and so whether or not it means the fact that it's not absolute the fact that there are ways potentially to have that the enlisted does not stop it from in the st instance from the day that he is on to the st day he's on supervised release before he does anything she was prohibited from doing this he could equally from and if the provider denied the provider doesn't even ever address it or in acknowledging the banishment place and so i think you know again the fact that there are there is a potential where we are from this does not stop it from being a band and in los to these cases and  most of these cases but the wording of this type of language the fact that again you can take a waiver from probation report to mental health treatment provider doesn't mean that the court doesn't scrutinize would you decide in the st instance whether or not we can even start from this position of no you're not allowed to do this unless you get special permission and so the so that kind of language has been treated whether you want to call it a ban or not it's a probation that has to be scrutinized and has to  not what condition says to me ask another question about the condition you are not challenging the condition that he participated in the treatment program is that right pornography what decision is you know the condition basically says he should have mental health treatment but there's no specific program that hasn't been the new turn to some undefined future program and so the idea that this far this prohibition is necessary to effectuate the particular program is speculative because there is no particular program and if you don't in fact there is no you even in fact i'm particularly think that a the and so it's not as if this condition is it's part of some particular program that has already been set out in the mill that this condition and he answers or speculate that it's essentially a list of conditions and sort of presumptions that probation is colleagues judge newman and judge hall whether they have any additional questions judge newman yeah i do have one as i understand your argument or the condition and so there is  starting in the mental health provider to grant permission to view a gulp in order to see is that correct that's correct and i'm just wondering how you it i haven't seen it yet he said but i'd like to see it and does the mental health provider then have to make a video by video permission or is it an all or nothing provision provision yes you can see adult pornography or no you thank your honor may please the court my name is eleanor carlo i'm assisting united states attorney in the southern district of new york i represent united states in this appeal as a gate in the district court in this case the district court did not commit plain are verifying that the defendant as part of his sex offender treatment program obtain approval from his treatment provider before he viewer downloaded pornography that involved adult district court did not completely ban the defendant from viewing or downloading adult pornography is that as is evident from the record the district court narrowly tailored this special consideration to reasonably meet the the district court did not include the complete ban on the defendant viewing or downloading pornography that involved that's because differ court wired that the defendant participate in a sex offender evaluation and treatment program and as per that program the district court imposed certain condition so those were the conditions for example waiving confidentiality of certain records limitations on the use of social media but also this particular condition that he could not view or download pornography involving adult without the approval of the treatment provider and so therefore the restriction on dope or not graffiti was just imposed its pur treatment which could be overridden if the provider decided it appropriate and for that reason this is distinguished from pieces cited by defense counsel that invalidated the broadband on adult pornography which were un program nd regardless of how the court viewed that condition whether the band completer or not complete the record support that the district court did not plainly err in determining that this condition was reasonably related to sentencing goals and that there was no greater deprivation than necessary the record is clear that the district court imposed the fact that bender evaluation creaming condition to ensure that the defendant was rehabilitated and that he would not reoffend the defendant would not appear to challenge the appropriateness of that general condition and for similar reasons it is reasonable for the district court to impose particular restriction i don't pornography as part of that evaluation and treatment until a provider determined it was appropriate for him to view or download to go probably that aspect of the treatment define involving child pornography he indicated that he had been initially introduced to websites that contain images of children having sex with adults and rd and an evaluation report that was conducted of him and twenty team was noted that he described that his sexual and fantasies involved both adult and particular minor boy to your honor's in light of the ample case all the support even broader restrictions on adult pornography as well as the record in this case hooting the nature and circumstances of the instant offense as well as his own history the district court did not clean the air in improving the limited restriction on the defendant viewing or downloading the refinement sentencing judge as to who goes st or the scope of it or whether it's or anything about sort that was available for discussion at sentencing about it been raised for imposing that condition but that it must be self evident in the record and so that any person among other people and  would just seem to me and maybe i'm missing something and i apologize if i am but that if it just reported connected the dots for us we might not even be having this discussion but i don't see where the dot connection took place and you know i think there have been several pieces that have been similar circumstances where the district court did not the can articulate the reasons for a particular condition but again the the court found that language that was used in that case is take the liberty of quoting we said that quote bans on procession with the pornography as a condition of supervised release must be supported  fines i think you may be right that with respect to other conditions of probation we have not asked for this amount of effort on the part of the district court but what's in the record to justify this and why the record is very clear that the district court did not offer any explicit or detailed findings to justify it and in fact we the factors that my adversaries pointed to particular defendant had again prior sexual conduct conduct with regard to both children and adults and in that case in the adams case specifically the defendant himself had  history of sex offending with children and or adults and there's no history of rip or no adult pornography addiction or anything of that source so this case is given back quite distinct from the the limited number of cases where these types of prohibitions have been allowed and then finally i would just remind the court that with regard to the facts of this not being objected to on several occasions in cases such as browns and enter the court