preventing mr van dyck as it should have supervised release from viewing adult sexually explicit material violated his st amendment rights and was overbroad yet rep wired mr van dunk to comply with his treatment providers much broader and more ill to find adult pornography and inappropriate sexual stimuli placing this restriction at one level of room from the district judge by requiring it through the treatment provider when i read this case i thought to myself well this is a treatment program it was a term of supervised release and is trying to restrictions that you can you can restrict watch permissable all supervised release and said you can't do this on supervised release you can't do this on supervis sentencing judge will come to the conclusion will fire if supervised release can do this and this and this is likely not to be effective for the purposes i want her to be a factor for which in this explore didn't impose it this time around the district court required him to comply with his treatment by providers conditions and ratified her condition look at the text of the order he was very clear that he was requiring mr van dyke to comply with her actions and that if you did not comply with those conditions he went face violation to has a question about process and the sequence in which this case is being presented to us because it's our understand g the district court to cane your client and the schedule to hear or read cation proceeding sometime next week so right that's correct your on that hasn't been stopped or stayed there so it appears that is moving forward correct that's correct so why well as a practical matter i don't think we're going to be able to decide this case before the anyway but what happens if the district court why don't you be making this a think the sanchez case sent him briefing answers that very question that is this court ruled that time for a defendant to challenge the constitutionality or the imposition of a condition of supervision it's not know you probably aren't happy about this but he's been kicked out of the program so he's no longer for this particular provider well as it happens my understanding is that she is the only sex offender treatment provider who has a contract with probation and harrisonburg area  conditions fluctuate the individual response to the st couple of steps and then this treatment program to be gradually remark so or whatever and that is problematic when you actually look at it as to adult material because even that definition includes simulated sexual intercourse and when you consider that the majority of  to do your honor if i if i may continue i see that my dear i was up you know to review your trip so st of all as to your last concern voiced as to whether or not this this might evolve over time she didn't speak clearly that she believed her probation fact under circuit president mr van dam would have would be found to have waived his appeal if you waited until you were violated on the condition and then challenge that condition i think there's also the additional st amendment concern that while he is subject to this condition potentially protected speech is chilled and that is a problem that he is subject to regardless of whether or not he is ultimately violated on the mission is that this condition does  morning honors law around born on behalf of the government they placed the court the question that is before the court this morning is whether a trial court which everyone including the defendant agrees can require participation in a trade him program also require compliance with the rules of that treatment program every other circuit court of appeals to have addressed this question has answered that question with a yes and the government asks that this court do so too if  district court cannot require compliance with the rules of the treatment program and effectively renders participation in that program to less and in turn in all likelihood ineffectual that is why a term and condition of supervised release no your honor and for two reasons why it's important to bear in mind the actual test of the term a condition that's being challenged here and that condition is that the defendant must comply with the rules of the program that if the defendant makes a derivative argument that the rules of the program are vague but there is no argument that the actual term a condition of supernaturally says everybody understands including the defendant what it means to have to comply with the rules he says challenging what those rules actually are so you  program would we want to look at to look at a very news question before that time so that the wouldn't have to come out that would be able to understand the important distinction here is in the bay his doctrine which applies to statutes in order to put a man of ordinary intelligence on respond to the so what's prohibited that says the supreme court is williams and that's of course in the context of a static law a statue  honor that would be the proper time to assess the application of this term a condition to the defendant's conduct but if i may i also like to address the concerns raised by judge floyd regarding the definition of what's prohibited by the treatment provider here unlike a statute which has one set of tasks that must be interpreted to decide whether or not you're putting a person i notice of what kind is innocent person's criminal and the treatment provider contacts it is a dynamic process there's give and take and the treatment provider expressly testified at the sentencing hearing that she would ask mr van dyke the defendant in this case to bring the material to her and they would discuss what was causing him to have to annecy is about children and what was causing his inappropriate and and in turn states that a treatment provider can impose restrictions on what a sex offender can view as part of his treatment in order to maximize the potential of that the offender will stop his deviant sexual predilections and stop offending and those treatment strategies are best left to the experts in the field who know what is most effectual in terms of rehabilitation for the sex offenders and so while it may not be appropriate for a court to preclude a defendant from looking at context of treatment between individualized patient and a treatment provider the answer very well may be yes your honor because for that patient if that is a source of sexual stimuli that then leads him to search out further child pornography or real child pornography  instance it's why we brought the sex offender treatment expert in to the district court to testify and it's why we are reiterating here on appeal that it is our understanding that this needs to be a dialogue between patient and treatment provider and the truth and there has to be to the sears catalog and certainly it is the government's view that if the treatment provider has not provided clear notice an opportunity to his or her patient about what the rules of the program are and what he or she can look at it would be entirely inappropriate then or community corrections center often times terms and conditions of supervised release require compliance of various types of programming and the defendants frequently by late those rules and probation house work them out many times in the st instance without issuing a  protection in other instances the rule violation does amount to a petition and the defendant comes in for a revocation hearing and then the issue was aired but many times even in that instance the defendant is not provoked th process programs are evolving and they are not static it is not a one sentence you may not do x and if you do you will be violated the programs are designed to help the defendants get back on their feet and they're designed to keep defendants from issue can be addressed without addressing the material this treatment provider was testifying at the district court hearing because the government had remained in this case based on the term a condition that the district court had originally opposed banning adult pornography and it is the government's understanding that in order to ban a sex offender from feeling sexually explicit conduct related to adults as opposed to children there must be a finding on the record that that ban is reasonably related to the three hundred and fifty five thousand three hundred and eighty one goals and an individualized assessment with respect to the defendant because that record had not been as developed originally and because the way the language was worded in the term a condition that used the term pornography the government felt like a remailer was appropriate and so the treatment provider at the district court hearing was testifying to help provide the required nexus between why this defendant who committed a to be a very humane and worthwhile alternative to longer prison terms that help people get back on their feet and i know that if we if united states sentencing guidelines require district courts to include a term and condition of supervised release that the defendant participate in treatment programs whether it's a substance abuse program mental health counseling or sex offender program these are not optional they're requirements and so it's the sentencing commission and the supreme court have all agreed that participation in these programs is not only encouraged but required is a natural consequence that the district courts should also be allowed to require compliance with the rules  care that's correct your honor it's not exactly that and i would guess but it's similar to a facial versus an as applied challenge if at any point a term a condition of supervised release is up clyde in an inappropriate way a defendant can challenge that term  condition at the appropriate time it is commonplace for courts to impose a term a condition supervised release requirement with another programs or rules whether it's mental health counseling substance abuse drugs halfway houses community centers that holds that district courts can require as a term a condition a supervisor at least that a defendant comply with the terms of a treatment program and that it is not right to challenge the application of those terms and conditions entailed a treatment program does in fact impose it on reasonable to me like perhaps you're concerned with that the competency or the expertise of this particular treatment provider and or what is challenging is that this record was not developed for the question that's really being asked this record was developed to determine whether or not mr grandon should be precluded from looking at adult content what this graph the treatment provider i think was trying to explain here is that trip sex offender treatment is a very individualized process and what is right for one offender to be rehabilitated may not be the same for what is needed for another sex appeared to be rehabilitated there is no one size fits all and that's why the district courts are not micro manage this process and it's why the district court should not try to write the terms of the treatment program into the terms and conditions of supervised release it is very likely the case that as treatment of all those so too will the rules and restrictions of the program because we hope that a sex offender will rehabilitate and improve and those rules and restrictions can be diminished over time the important point here is that to the extent there is any concern about what was or was not allowed has been taken away nobody has to gasp or look behind the curtain because mr man doc was allowed to have a dialogue on a regular basis when this treatment provider and in fact showed the treatment provider the materials to determine whether or not he was allowed to view that world thank you very much  restricted and i think that exactly proves the point which is that none of us in this room are sex offender treatment experts and what is an appropriate to rehabilitate a sex offender should be left to the expert treatment providers and to the extent there's any close calls at the margins hopefully those can be resolved by the application of common sense and decency throughout the process and if they cannot then the defendant can of course bring a more egregious misapplication to the district court and request a modification for all those reasons we asked that this court  is appropriate to be resolved now rather than waiting for it to be resolved after it's been applied to mr van first of all is that and i think that underscores in some ways the vagueness of the condition of the conditions so that the cour we were arguing about the district court at the beginning of the hearing on the end of june hearing that condition also is problematic because it also sweeps and protected conduct so what what what w infringes on contacted st amendment rights and actually has to be narrowly tailored and directly related to deterrence so if you were to say agree with that and say that the condition expressly would be limited to the definition of child pornography as defined by federal law but in addition the your client would have to comply with all rules and regulations of the treatment program  the provider then still legitimately say because of your particular circumstances most of all you're far from viewing adult pornography and you're barking looking at the sears catalog so o that's not what it is now but look assuming that she could make the case is there a problem with for you suggesting that in no case now can a child pornographer be barred from looking at adult pornography or other sexually stimulating material so long  of five and there's a logical connection between that and his treatment i think it has to be narrowly tailored and directly really under the president's i think it has to be more than a logical connection certainly there are cases where this can be imposed and the th indications of course had to do with child porn are yes here other after that he went to an inpatient treatment program that allowed him to sexually explicit materials and there's letters from two of his therapists and their records from that program having protected speech prohibited regardless of whether or not he is facing a violation there's a recurring this problem and we have to go back down to the district court has violation has to be found and we have to come back go to rights it certainly means you're qualified it does your honor but even so he still has something that point the court to the rd circuit's lawyer and opinion regarding prevention standing and why they found it appropriate under similar circumstances to go ahead