united states court of appeals for the th circuit hear ye hear ye hear ye the united states court of appeals for the th circuit is now open according to law god save the united states issue one i would like to focus on issue two which is that the fall our lifetime ban on internet access for mister hall is plainly unconstitutional under packing h as you're aware although there are nineteen pandemic i think has established firmly for all of us but i don't want to speak as generally for every whine about the utter necessity of the internet in modern life and hacking him recognize court by mister bhopal and this case which amounts to combining two of his restrictions to special conditions to a life time complete ban on his access to the internet absent work authorization which is not a mention did not put in a footnote just you know this would be fine if there were only four people on supervisor at least for probation and the last certainly did apply to people on supervised release and probation that's clear from the parties briefing and hacking him so  however again i think if we dig in and in particular your honour's i know you're just as for mill you're probably more familiar with backing him than i am but if if i may draw your attention to the concurrence which i think is particularly relevant now because the make up of the court has changed so  problem for section fourteen to two five is that it's wide excrete precludes access to a large number of websites that are most unlikely to facilitate the commission of a crime against a child and that is the same problem that we offense and if that we've the case the problem that i'm having with the argument is i'm hard pressed how such an era would have been plain or obvious  sentence imposed on a particular person mister ball i i know your honour's are familiar with the record and i would submit that there was no discussion about why and how these conditions w specifically tailored to his offense i think that's relevant i think if your honour's look at the way that it these conditions were imposed and were read off of the three sentence investigation report without any discussion and the district court certainly did not acknowledge this is true in front of him and to a particular a friend both of which were absent from acting yes i think it ringback depends on how the court wants to define tailoring and mister bo balls position would be tailoring for st amendment purposes is exactly what packing him did and that's what the court here didn't no your honor it wouldn't have it wouldn't have been enough because the way that narrow tailoring works from my my understanding my reading of back in yemen and other cases is that the government may not suppress lawful speech as a means access or use a computer with with access to the to the internet without prior approval of the court which of course is more burdensome than probation but combining that with the next condition that if then it shall not possess or use any computer access the internet and use a computer for work however that is not meaningful for purposes of the st amendment i think it is meaningful under three thousand five hundred and eighty three d which requires that the conditions impose no greater restriction on liberty than necessary to meet three goals deterrence protection of the public and rehabilitation and so i think the work in section does speak to that the narrow tailoring has to rehabilitation are review year we're not looking at it didn't know is there any th circuit that's contrary or directly contrary to what the district  law that would have been contrary let alone directly contrary to what happened here so it seems to me the argument has to be that packing ham so alumina ated the feel that that completely absolutely constitutional no matter what because your honour's would have said it it's not error but in a footnote instead you say we're just holding it's not really because the supreme court and ourselves we haven't spoken to  of questioning with respect to whether packing him control is the crux of this entire case if passing him directly resolve this appeal then mister pole prevails but because the facts of packing him are distinguishable for the two reason that have already been articulated it was supervised it was a law that applied to individuals beyond those who are under the control of the criminal justice system and it applies to individuals whose nature of the  crime didn't necessarily constitute internet based crimes and for those two reasons it's distinguished hole so it's holding cannot control and then the question terms of that last issue whether there is an th circuit holding that would contradict the government's position or frankly if there is a certain holding elsewhere in the country and if there was a split obviously it can't be in error but there is an even that's the only keys on the defense  from the circuit we do not suggest that a lifetime ban could never be sufficient capital but that's precisely what mister pole is asking you to do impose a bright line rule that all sex offenders are precluded from having this restriction which is called for by the sentencing guidelines in a policy statement that all sex offenders and in federal court a large portion of sex offenders involve the internet that this is a tool that's going to be removed from all the district court judges and that's inappropriate in this particular case and as judge marcus referenced there was tailoring that was done with  so your honor there was no objection so the statement of reason perhaps could have been one fear recall we have mister ball recidivist sex offender who during the course of his prime as a required sex offender registry and failed to offender who's convicted from ever accessing any of the basic news sources that he would align the wall street journal the washington post the new york times it would be art forever don't you suppose that's a big deal it has a powerful st eleven implication so so it's that's not the ban that's precisely in place here but that is a big deal and what is what how bad what do you see is the ban that's in place here we know from the wording that if he needs access to the computer for employment reasons he could apply to the court for relief  can the apply for any other relief nothing more than a i want to know what's going on with the news concerning the presidential election of two thousand and eight and i get all my news  restriction he can apply the court he can apply for a modification after one year that's noted in the footnote in carpenter that there is the prospect of a modification and your honor to the extent that there is this recidivist sex offender was that the court will impose a period of supervised relief that i believe that that in addition to the most possible generous variance she was able to impose a twenty year sentence with the absolute minimum that mister mobile with eligible for and less than half of what the guidelines call for that with that might term of supervised release this will be sufficient to ensure that you're not a danger to the community so the least possible sentence but so had the presence of mind to say to the judge at the same offense that this is a powerful restriction on his st amendment rights and he wants to watch the news maybe there's some other remedy is likely can set off access to certain sites or something but my client wants access to basic news suppose the judge said no you go to the y five i think that that would necessarily think it is a smart television watched while he could use a smart television provided it was a cable link up or not the wife by which is the way you describe and assuming that there isn't a built in moment but these are facts these are facts that should be developed in this report but i do agree that there that there are our concerns with respect to the implication that the implications here in the end tailoring but this wasn't challenged the district court level and so the you perceive the sentencing package which gives the quarter surance that notwithstanding this maximum downward variance i'm going to be able to protect the danger you posed to this community and only now is he challenging those other conditions after he received that the benefit of that variance and while those are troubling issues and these are ever evolving technology that's why they should be decided on case by the new car or whatever and make a record about that and and that could then you know depending on how the district court rules and and on that that requests for  subject and your honors i wanted to respond in a couple of ways st i would like to draw your attention to a quote from packing him and the court did certainly say as opposing counsel mentioned that we have to be cautious in the st amendment context because the internet is constantly evolving but the way that action here in court closed or sort of closed that thought was the court must exercise extreme caution before suggesting that the st amendment government conceived and a practical response and legal response to that i'll start with a legal response i don't think that the ability the potential that there were he may move for a modification which of course is not that he may be granted a modification let more constitutional in the same way that were there to be an appellant before your honor if he was challenging his sentence as excessive under the eight amendment the ability for him to move for compassionate release will not make that sentence release mister goble is intellectually disabled and mentally ill so i think there is both a legal response to that and a practical response the future potential that he may be able to move for a modification does not make