i'm going to this is this the spot as i do think these these two these two sections apply i'm the photograph is the only evidence here and the respondent basically says that that sullivan can't meet this requirement to simply by  application for further appellate review necessarily recognized it was much stronger is much turn on how we characterize it your point is i think there was a factual judgment or a judgment about the nature of this not a lewd exhibition they were five or six by the majority and there were another five five by they had to set and there are only two factual findings that lead led the court to lewd exhibition and those two factual findings were verdict without specific on that's exactly right and the appeals court because it was only a photograph the appeals court isn't an overview putting this issue aside what is your argument as to why the court of appeals reasonably concluded that the content of this photograph was  the girl's breast and that her hand was basically in a state could be suggestive sexually and i think that those two findings are not only contradict which there are other findings they are subjective and they are argument and the legal argument is that if we were to agree with you what would be the standard for lewdness that you'd be asking us to adopt never tell clear does a photograph have to be in your view well i think it does because you say here well it's it's too speculative well there are a number of other cases of child pornography where the person is part of the child as opposed to the child as completely naked with genitals displayed the child in the sexually provocative situation the child at the photograph appears to be lewd this is just a child playing in the sand and there are plenty of findings of elisha playing in the sand there she's digging in the sand in front of her there's sand all over her arm it's a beach she doesn't she's not posed it's a kind of a website that families family vacations are on and the two findings of lewdness were speculative and subjective isn't the difficulty though that you have in your means so we've got to it seems to be that in making the judgment this case requires we've got to bear in mind that there has to be some fear to grieve in the spectrum of possible definitions of us and in less the in list the definition of those you know use me apply in this case or implied by this conclusion is with the only evidence in this case is the photograph itself when that description of the photograph becomes interpretation of that evidence it becomes the next question of fact and law and i will our for the case in a follow up letter to miller l and unconstitutional under the first amendment because it didn't exhibit the requisite lewd exhibition as justice souter pointed out there's no definition from the supreme court or clearly established law on a definition of lewd acts of action so under that analysis reasonably i suggest to how to define it and how did finally going to the mass massachusetts than it looked at those factors which many courts i certainly know there's a lot of attention on how relevant those are but it looked at those  position i think i know the answer this question but i just want to make sure you have the right if the person being prosecuted here was the parents of the person who took the of the sooner the parents took the picture of the child acknowledged that there might be overbroad in some of these contexts but that that overbroad needed to be addressed like a case basis so in that case certainly it it might reach it but hopefully one would hope know anything about it we don't know where came from we don't have anything and it's subject to various possible interpretations you have this is because the news does hasn't been interpreted by the supreme court with any specificity that or that ambiguity can be used to adopt a relatively broad interpretation and if that's true that it would seem to apply even as to the parents who took the picture it isn't sacraments to those arguments and those were in fact me here and i think that would be certainly one way to rest your parents taking a picture on vacation so you could challenge that and certainly wouldn't be able to challenge under any of those three in the state courts when i'm saying that you know the challenge would be a broadly and without having any particular clear definition as to what's being given this is what our first amendment direction is well if it differs it differs because first of all those three arguments recently dropped as they went through the state courts and  the argument challenge change and argument presented here was that the court misapplied a new definition and my argument is because there isn't a loose definition the court as narrowly fair framed by the petitioner by the time you got to the federal district court is that  let's use any other arguments on the merits and i'd like to briefly touch on the exhaustion issue and the main reason for doing that is to ask this court to reach it to clarify the viability of a receipt in light of the supreme court's opinion baldwin and the reason i do that is because but because the petitioner cited that it sounds and the dissent discussed the first amendment and majority also to discuss the first amendment and because the appeals courts opinion was before the estrace therefore the issue was exhausted i suggest in light of baldwin that amendment kline the f c c didn't have to read lower courts opinions as my brother has said as correctly found by the district court the sullivan relied upon the appeals court decision he