endeavor not to be redundant as much as possible but i do understand many of the same issues are presented so i would invite the court please to focus my argument wherever you feel you still have the most remaining concern first and foremost in this case the government has principally argued that the threat of bodily harm is what brings section two or three within constitutional bounds and in this case the record at least contains some support for the fact that mr lane was sanctioned and this is in the seventeen dash five five five eight two case was sanctioned under that latter cos clause for other threats of any other offense at excerpts of record sixty nine he was charged with threatening staff use of mail for illegal purposes and an excerpt of a record one sixteen he was sanctioned because he implied a threat towards a government official in the government in their briefing below explain that the threat at issue in that case which to remind the court he threat he sent a letter to the united states a to the united states attorney stating the letter i sent on june twenty fifth two thousand and thirteen did you forward it to local law enforcement no matter what my family has your name address and phone number the government below said that could be a threat of stalking i have argued in my brief it certainly could be a threat of vandalism it certainly makes sense that the b o p did not treat that necessarily as a threat of bodily harm and to the extent that they did so treat it it does underscore the breath of this regulation that it does reach threats of any other offense more fundamentally however the real question here is whether  of prisons can be he delegated the authority to use this regulation reasonably as your honor put it whether it's up to the b o p to decide whether they are going to use only half of the regulation as it's written and whether they are going to be provided with the ability to give content to a regulation that by its plain terms reaches a broad swath of speech that's unrelated to any government interest so th supreme court has directed us to give a great deal of deference to the prison officials has their play and the deference to prison officials is to determine what harms exist in a prison environment and then to look at the close fit between the regulation and those harms and i think in these cases the government has really failed to demonstrate what extra band with they are getting out of the broadest applications of this statute it seems from the argument of coun previously that the statute could easily be more tailored could easily be narrower without the fear of prisons losing any ability to sanction what they view is really detrimental speech  inside that inside the prison walls and that the reason i say that is we have a point into our briefs in you know what are various examples of speech that's clearly prohibited for example an inmate who writes  wife and says if the food doesn't get any better in here i'm going to start twisting some arms that's a threat of bodily harm you can easily see how that is within the core of first amendment letting off steam airing grievances it's not even particularly hostile or abusive and much much more obviously hostile and abusive expressions would it would also be protected under the first amendment well i think the bureau of prisons would probably state that the reasonableness and the due process inherent in their internal process would assure that that speech would not be the subject of discipline the same with a threat to harm osama bin laden the same with a threat to you know murder the tooth fairy and no matter what graphic terms however that doesn't amount to a broad and i've said i'm bridled several times but that is i think the correct word grant of discretion to the bureau of prisons to act available alternatives that are well within doc trying to bounce the supreme court stated in and perkier that the three categories that were clearly capable of prohibition were plans plans of ongoing criminal activity threats of blackmail or extortion do you want to address this scene where they appeared to approve of a limitation saying the letter contains threats of physical harm against any person or threats of criminal activity the regulation that was struck and perkier itself to include did include a prohibition on outgoing correspondence that related to criminal activity and that was among the language that the court found overbroad in striking that regulation and i would concur so i think that's an important point and second i would concur and in my somewhat  explanation of the point that there is no reason reading the full context of that opinion to derive a meaning and that something other than criminal threats would have been intended to be within the prohibition of the language i think the government three i think the outcome would be much the same as what we're advocating for which is a narrowing of the obviously overbroad and unconstitutional applications i mean in that case the euro presence essentially said there is no way it is both against our search security concerns and against our interests and rehabilitate rehabilitating inmates to allow them to use vulgar disgusting language to be disrespect full to target there are disrespect and unconstitutional swath of activity and that's the threat of bodily harm or is it the other offense that you're that that is the source of concern i think it's both your honor i think the threat of any other offense certainly because it involves a threat to any any person fictional real dead or alive of any offense there is it's difficult to imagine anything broader and second as to the threat of bodily harm in particular it does encompass the joke that i mentioned it encompasses an inmate who is expressing perhaps a real fear and the thought that he will act in self defense in the future there are certainly applications that the that the government is unlikely to stand up here and defend i think what the government will do is that this court said look at what mr lane did i would really urge the court instead to look at the full application of the statute i think that's what permitted on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity that's exactly what mr lane is asking for here whether his conduct his speech could be sanctioned under a more tailored regulation is is frankly in opposite to the question before the court of the cases the inmate was disciplined for threatening bodily harm i'd like to first address why the court may not consider the any other offense language or any hypothetical any other hypotheticals that are brought up today and for three reasons in the one birth the court specifically remanded that case to look at the application one of the incoming publications and the court did not look to other hypothetical analysis also the petitioner looks to many criminal statutes and the court is very clear that prison discipline is not comparable to criminal cases there is the full panoply of rights does not apply in the crib in the prison discipline context and there's little or no application in civil litigation dealing with prisoner internal operations meths from the kootenay case there's two other reasons why the court may not look at  statute clearly applies may not successfully challenge it and that was challenging to the first amendment and the court did not look to hypothetical acts in that case as urged by the plaintiff last case and so in this situation there has to be some open ended nature and i'd like to talk a little bit more about how code to go three is defined by the prison in this in  case five five five seven nine the discipline hearing officer wrote the elements of code two or three in their decision and the element is a communication of intent to inflict physical or other harm on any prisons there are elements documents that the discipline hearing officers have in that that document outlines the elements as as written in that discipline hearing report as a communication of intent to inflict physical or other harm on any person or property so that's that the guidance provided to the discipline hearing officer is that in the record that is in the record it's an excerpt of record eighty two in case five five five seven nine furthermore that the inmate is not just provided with the language of the code two or three when an inmate is charged with with a pretty good act they receive an incident report that includes a box nine that lists the the number two or three with the language intend to  or threatening another with bodily harm but then also there's a description provided to the inmate so the inmate could have been charged with some other codes for a similar acts and so the inmate can look to the description of what he did if you see questioning whether or not he was being charged with threatening another or with another offense and lastly just to give some context to that or other offense language to the extent that it would apply although we don't believe it it wasn't applied under the record here  in martin v kelley the court applied definitions from other prison program statements to define clear and present danger and similarly here we want to look at the definition of offense we can look to the prison i'm just sick and discipline program statement which is a public document but not part of the record and they're the term offenses used to both refer to criminal offenses and also prohibited act offenses so those are the two ways that the offense is is used and just to put a little bit of  context here inmate discipline is categorized and in four different levels the one hundred series is the greatest severity two hundred is high three hundred is moderate and four hundred is low and so if an inmate were charged with some of these hypotheticals that are being raised it would have to be within the two hundred a high series to fit a code to a three or within the b o p s policy itself some hypothetical that that is a low level threat wouldn't satisfy the two zero three code i'd like to point out that in in various contexts as my my colleague has stated the first amendment has been limited and that's with harmful objects and outgoing mail in the with through case threats of physical harm as pointed out in procaccini footnote fifteen and also in fourteen where the court looks to a bureau of prisons program statement regarding outgoing mail threats of him criminal activity was specifically reserved in bradley and in this case we have threats to kill a prison guard which which could be raised to the criminal level and also endorsing prison gangs and a few brief points and rebuttal your honor first i think probably what will be the most important thing that this court will do in deciding these cases is to determine whether protein or it is a facial over breat first amendment challenge or whether instead courts can only look not to the regulation and to what it punishes but to the particular conduct of the individual and whether it fits in that regulation i submit t that position instead of looking at what each individual inmate had had written in that case the court looked at the full breath of that regulation and explained why it did not come within constitutional bounds and secondly counsel pointed to a line of cases that has been undermined if not entirely obliterated in a certain sense to johnson and to my explained in no uncertain terms that as applied challenge was not neither the only nor the appropriate framework and in fact criticised this in our in our replies to your honor making i'm making confused face that i can well conduct would clearly be prohibited under the under that regulation it can still be void for vagueness and that person can still mount a facial vagueness challenge and need not make an applied challenge and the only line of cases that opposing counsel has pointed to in stating that this court can limit its review to only one portion of the regulation at issue is that very line of cases in the supreme court was clear in both johnson and maya to say some of our language in the past may have led other courts astray but in