phone access cannot withstand scrutiny under the four factor test set forth in matter laid against answers that this court uses to determine whether prison regulation on julian french is not a constitutional right we have two arguments i will briefly describe our two arguments then address each in more detail st mr higher has a st amendment right to communicate with others beyond the prison walls and the record establishes that though mr hire is well versed in american sign language mr higher is functionally illiterate in english meaning he cannot use written means of communication like letters or emails where the t t y device is good means of communication outside the prison walls even the district court found his ability to communicate in english is equal to that of a seven year old child at best mr higher has english reading and writing ability of a child in the rd grade that finding is concluded that mr higher is incapable the effective communication so you know i have translated calls if that's what if that's what you're asking but i might not have understood it doesn't it doesn't affect one way or the other we he seeks here is that what is is when asked is access the question of access to communication with what's really the most important group of individuals for mr hire to communicate with outside the  other deaf individuals and his close family because he would like the ability to also use the video to communicate with his brother george and so we think that the  a looks like an attractive accommodation is a little bit like telling an english speaker that they can only make telephone calls to non english speakers  o we think the bat because you know it's not even only speak good english speakers through an intermediary because the r f cannot be used to call another deaf individual the they are required to terminate the call so he potentially his brother with whom he used to use family signs and to whom he would like to teach a sign in returning to the woodturning to the point he two can't communicate effectively using wh is that what you're saying this person then right is because you certainly can communicate with many people outside the prison under the current b r s accommodation so are you saying that under the  st amendment he has to be able to communicate with everyone i am i i'm not saying he has to be able to communicate with everyone but he should be able to communicate with the individuals in the deaf community and and his close family i think the actual formulation of the communication outside the prison walls includes family specific instance of who prisoner should be able to contact them with respect to death individuals the you know individuals who are not on hearing form a community of shared experience with whom conversations would be the conflict everyone but he needs to at least the ability to contact those individuals for whom communication would be most meaningful and so i think that that would be the scope of the right although i don't i will point out that when prisoners are granted reasonable access to telephones it's it's not an unrestricted right with preclearance they can often talk to pretty much anybody so  what turns on the scope of the right is not entirely clear and i hope that i hope that answers the question but we don't think you need the ability to call the president and everyone else just those people with whom it's the most meaningful and he actually specified individuals in the record named individuals he would like to contact and like to speak to his brother and former friend those individuals the individuals who are  i apologize because it's probably not going to be the most most of them but it's clear that you have minimal he must have the ability to speak to other death individuals to himself being that it would be like telling an english language speaker that they can't they can call anyone in the world as long as they only don't speak english or they could call anyone in the world as long as they don't live in the united states we're not asking for a ruling that goes beyond pointing out that in this case speech the ability to speak to his family and friends and other individuals who are deaf is  this is the least so sufficient to fall within the scope of the person on the right ok mr tutt would you talk about the t t y devices because we do know that this would provide mr hire with an alternative method and i understand that not as many people use those devices this use too but what is the record show regarding whether this is a viable alternative method that we would consider under the met their late words in english to communicate or in you know language but the only other language that you can spell is english and it isn't sufficient for him because he has no one disputes at best has a rd grade ability to write and read in english which is an incredibly low ability it is it is really the functional equivalent of illiteracy so he can't use the device for the basic reason that he still wouldn't be able to use text messaging even if a very efficient and effective form of written communication more available so that what makes the p c was inadequate at the threshold is that it requires religion but there is there is this other issue which is that best speakers as a method of communication anymore because it was an analog essentially analog text messaging developed as a as a technology before text messages and e mails existed so both sides of the interest here a valid rational connection between the prison regulations and legitimate government interest the district court found that there was and there seems a fair amount of evidence in the record suggesting that maintaining internal security and protecting the public are legitimate government interests that are further here and then you can address those for me yes you are one thing that this court said that one could legitimately question the connection between the interests and the actual policy because it was tenuous because it does appear tenuous and we don't we don't walk away from that we're not questioning that that that the record shows and say that therefore he is entitled to a video and we think that that would be an appropriate way to march through the announcers to just want to very quickly talk about how readily this could be accommodated but i don't want to speak over anyone's over any question but well you know can i ask you just a follow up question i'm sorry with respect to the nd factor when you say well i guess you're sort of conceding that there even our own witness dr coakley a world class linguist said that he had tested mr higher as eight months into the nd grade so there's not really a material dispute about how well he can communicate level you know a rd grade level doesn't give you the ability to that they politics to talk about sports relate old memories to talk about your hopes and dreams and future plans it is individual sentences it is chapter books little  standing picture books the rd grade reading level just is not enough to express a fully adult person's entire mental faculties and so we think the rd grade level is a fact but affective communication is a matter of law and the st amendment is impinged when people are restricted to speaking at a rd grade level and i am out of time  decided by the district court the question presented today is narrow whether the district court clearly erred when it found that the v o p did not violate mr highers st amendment rights and its decision not to provide him with access to point to point b o phone technology the government respectfully urges this panel to reject hires invitation to act as fact finder again we ask you a firm as it is clear that the district court did not care and it decision following the two day trial in two thousand and seventeen italians as you need to judge prior is not a typical federal inmate his current status and background are vital to the issue at hand and if your oath determination as t mr crags pod craggy who testified on behalf of the government at trial as well as former warden and the kani both expressed that as well that it was a determination as to mr hire in this case and his background because of his record and what was the healthy with that is there evidence in this record that other people are given point to point to video phone access there is your honor and i know questioned on that as to the pilot program a point to point technology across the bureau i think the pilot program specifically for word mansukhani when he was questioned was nine a small population and  female at a female institution so it is provided elsewhere within the bureau but this case in particular was an individualized determination as mr hire well but your answers seem to contradict themselves ok so some women somewhere and some other person get to have this point to point video phone access but i gather no one at this prison does is that correct that's correct your honor and i would respectfully counter that they don't look at the individual security risk in each each person's case but they do look chris and why did you just tell me what the record says about that i would respectfully i believe that the record shows that this was a determination to hire and the maryland unit there was a lot of talk about the maryland unit itself where mr hire is housed and it's the only location within the bureau that houses sexily dangerous testimony by matt preg to the district court who mentioned that they do look at other institutions and they have been looking at it in other locations but again it's individualized as to the security risk which is essentially the question for the bureau in every case is there a security risk as to this technology and it's why mr craggs office exists that answer individual the community maybe individual is different to you but individual names with respect to an individual and as i understand your answer and i guess i thought from the record was everybody that in this unit nobody is allowed this point to point video phone access is that correct it is a blanket ban i would i would still argue respectfully that it is individualized but you are correct in stating that nobody else in the maryland unit has this technology but simply might be for the fact this point to point videophone technology but you are correct you know when i was a maryland unit has this technology warden mansukhani was that there there is actually a great deal of difference the technology that he has now that you all discuss with counsel is called of the r s which have an interpreter so mr hire assigned to the interpreter who then interpret into english to the other participant in a telephone call so when this technology was a sat for mr higher it was found that this could accommodate his st amendment rights while still having an intermediary e the interpreter to ensure that the phone line and the system was being abused by mr hire or the other participant of the call so it was less of a security risk in the bureau's determination then it would be to have direct access of the two individuals on the telephone call that answer your question yes thank you so i will continue just to to discuss briefly the standard of why we're here and that's the clear air standard and as i mentioned the district court ruled on this in february after hearing a two day trial determined that the st amendment rights of mr higher were not violated by this specific ban and again this ban is just that for mr hire and the point to point videophone technology and as you all are aware legitimate pain logical interest as expressed by the bureau which i've mentioned is to protect and as you mentioned your honor is to protect the public and the individuals in the institution from harm and danger decision and it credited the testimony of the correctional experts which we know from turner argued some level of deference but as a fair amount of deference in making these types of security explains that you know hires expensive history and sexual deviance they felt it was a threat to the public to allow him this access and that he could perpetuate forms of exploitation and criminal activity over this point to point videophone technology that simply call individuals using the d r s system that we've already discussed what counsel what is the record evidence about whether mr hire can communicate effectively in writing that's a that's a opined that written english was an effective means of communicating with mr higher which was the expert for appellant trial however the district court in this opinion explains how essentially the entirety of profit examination called into question that ultimate conclusion by dr coakley and therefore that ultimate conclusion was not credited by the district court as it is in its ability of fact finder of the ways in which just the cross examination showed dr coakley ultimate opinion was verifiably called into question dr quote we never worked in a prison he didn't have training for action he met with mr higher twelve thousand and thirteen for an hour and a half and he did not supplement his report prior to two thousand and seventeen or nor did he interview him again three some gap of time in that he did not review a random writing campbell for mr higher that can j f one hundred and sixty eight in the cross examination of dr coakley he was unaware of the amount of letters or emails or other means in which mr higher was able to communicate with others and he also confirms that their work correspondences of mr higher in which he was able to speak to people on the outside for example his brother he was able to effectively communicate with his brother as well as brenda who he refers to as his adopted mother but on the other end of the spectrum the other testimony that the district court credited as to how mr hire can effectively communicate was the testimony of andre taylor testimony in the record that the district court heard was that he was able to recognize mr hires handwriting and he's always able to discern what mr higher is asking and might time times not be perfectly written or there might be some errors but he testified that regardless of how it is written his ability to make sure higher receives what he needs within the prison is and coveted by his lack of proficiency in english what does the record show us with respect to harper's close family are others in the family also hearing impaired or death your out of the record reflect that no other individual members of his family i believe are hearing impaired or deaf the one individual that appellant counsel and the records show that mr hire wanted to communicate with is his brother and the district court heard testimony from mr higher himself when he  reasoning in which mr hire put forth as to why he wanted to communicate through other means with his brother outside of the b r s that is provided by the bureau  so i'll just move back briefly to the findings by the district court visitor court went on to find not only were there other available means for mr hire to effectively communicate with those on the outside which i heard the questions previously your honor that you posed and the government's position would be that the st amendment right is for mr hires to be able to communicate with the staff and others beyond the prison walls which is a quote from the st hire that came up to the th circuit and we believe he is effectively able to do that and of course that is what the district court found five following trials so this report went on to find that the b o p s in order to implement the technology is it would need to undertake new interpreter contracts because the current a s l interpreters that come in to actually see bucknor while they come in frequently for medical appointments and for any treatment needs that mr hire might have there is no contract in place or there was not at the time of trial or mr hired to have an interpreter to monitor these phone calls its report also found that the bureau a need to navigate a complicated waiver approval process and would not just be an automatic approval even though there is some technology already in place it would still need to go through the approval process for the point to point technology as well as delegate staff time and resources to monitorin these calls which was something that the district court heard from ward mansukhani would be tremendous strain on b o p resources to monitor these calls and ensure safety of the public therefore the district court ultimately determines that these were far more than just the minimum burdens upon the agency elf so ultimately the district court had the whatever infringement might take place if the higher the st amendment rights was invalid relation to the correctional requirements explained by the opi personnel when they took the stand during the trial in two thousand and seventeen therefore if the panel has no additional questions only person in that program who is not permitted to use the functional equivalent of a telephone even on their own terms the supposed reasons for limiting his access are difficult to  wrong in that not not the security risk but the fact that they would have to essentially hire somebody or at least place them on contract to implement a new policy for a single t t y device and it is conceded in this case that that rather than sitting with him well to use the t t y device that same individual could instead sit with him when he uses the video and so the to every other foreign language in the v o p system they monitor the conversations and then translate them after the fact and this is detailed in mr craig's testimony so there are sixty languages across but tens of thousands of prisoners and many of them they were court to call and then take the recording and have it translated by a rd party service after the fact and so our view our argument is that one plus one equals two someone sits with him when he uses the phone to make sure that nothing is shown to him no abuses on the phone so the visual aspect is monitored and there's no cost to the person because him when he uses to drive and then the signing aspect is covered by the fact that they already provide translation services to chinese speakers laotian speakers spanish speakers german speakers but the foreign language individuals and they don't believe that that needs to be done in real time to address any security needs of the prison system so how the the district court has a sense  point communication is that incorrect your honor it's not incorrect i will point out that if that is actually a security risk put it to one side he teach his brother yourself and that's also something he testifies to is also on the record so it might actually without conceding anything access restrictions that are reasonable because distinction you know two siblings who speak a foreign language could also have a family language and some do and so that would present really think of the record is there in this record we have people that have family language because it wasn't sort of put as issue as the reason for these restrictions so you know we shot down everything that was put in front of us and if that was put in front of us we would be taking out it as to speak in sign language and he doesn't have the ability to have these meaningful conversations and teaching his brother how to sign would be to facilitate a pen or taining his ability to sign  something like proficient he can carry on narratives he can relate past events and to a limited extent he can describe hypothetical and future of them right is the anything in there was there anything in the record according to age or grade level d like we have with regard to his ability to read and speak english if i recall  it was only in the negative i wish i could remember obsolete dr coakley said he does not have the proficiency and all of my college two of my doctoral students a college higher higher education student we have no basis with which to understand why this world class linguist opinion was rejected but but the testimony of a lay prison official was expected evidence of affective communication them and haven't spoken to them in a long time but again it's and pull its working but i think that he's been communicated it functionally communicative isolation because it's so difficult for him to actually communicate to the methods that are available to him but he names those two individuals as people who'd like to get to the band i want to point out the possibilities for mr hire if he obtained access to a video phone there are the court will take a brief break before hearing the next case