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. e du/thir dc ir c uit_2001/2Filed January 4, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3827

UNITED STATES OF AMERICA

v.

RAY DONALD LOY,

Appellant

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cr-00089) District Judge: Alan N. Bloch

Argued: March 9, 2000

BEFORE: BECKER, Chief Judge, NYGAARD and GARWOOD,* Circuit Judges

(Filed January 4, 2001)

Marketa Sims, Esq. (Argued)

Office of Federal Public Defender

960 Penn Avenue

415 Convention Tower Pittsburgh, PA 15222

Attorney for Appellant

___________________________________________________ ______________ *Honorable Will L. Garwood, United States Cir cuit Judge for the Fifth Circuit, sitting by designation.Bonnie R. Schlueter, Esq.

Mary Beth Buchanan, Esq. (Argued) Office of United States Attorney

633 United States Post Office &

Courthouse Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

Ray Donald Loy is currently serving a 33-month term of imprisonment following his conviction for receiving and possessing child pornography. After being r eleased from prison, he will be required to serve thr ee years o f supervised release, subject to several special cond itions, two of which are at issue in this appeal. Thefirst condition prohibits Loy from possessing "all for ms of pornog raphy, including legal adult pornography." The second cond ition bars Loy from having unsupervised contact with mino r children, and further specifies that the r equisite supervision must come from someone other than his w ife. Loy challenges these conditions, arguing that the pornography condition is vague and overbr oad, and that the condition restricting contact with minors is no t only vague and unsupported by the record, but could also potentially inhibit Loy's ability to have and raise his own children, in violation of his rights of pr ocreatio n and familial integrity.

At the threshold, we must address the government's contention that Loy's challenge to the pornography condition should not be addressed befor e an attemp t has been made to enforce its terms. W e disagree, holdi ng that the challenge is properly made at this time. W e th erefore turn to the merits of Loy's arguments, and conclude that the prohibition on pornography is unconstitutionall y vague because it fails to provide any method for Loy or h is probation officer to distinguish between those item s that are merely titillating and those items that are

2"pornographic"; nor, in fact, does the prohibition even

provide any guidance as to whether the r estriction extends only to visual materials, or whether purely textual works and sound recordings fall within its scope. Therefo re, we vacate this condition and remand to the District Co urt so that it may, if it so chooses, impose a new conditi on in

accordance with the standards we set forth.

As for the restriction on contact with minors, we conclude that, although the condition might ar guab ly extend to Loy's own (infant) children should he sir e any upon his release from prison and befor e the three- year term of supervised release ends, given the lack of evide nce to suggest that such an unlikely interpretation was in tended by the District Court (and the constitutional quest ions that such an interpretation would raise), we will constr ue this condition not to extend to any children that Loy mi ght have for the brief period of time that would be involved . We also

construe the condition not to extend to accidental or unavoidable contact with children, such as might oc cur in public arenas. So construed, we uphold the conditio n as written and find that it comports with statutory an d constitutional requirements.

I. Facts and Procedural History

This is the second time Loy has asked us to r eview the special conditions imposed on his supervised r elea se. The following facts are taken largely verbatim from our decision in Loy's first appeal. See United States v. Loy, 19 1 F.3d 360, 362-64 (3d Cir. 1999). Of course, we have supplemented our previous factual discussion as nec essary to reflect developments that have occurr ed in the interim.

In 1997, the United States Postal Inspection Servic e and the Pennsylvania State Attorney General's Office co nducted a joint undercover child pornography investigation. As part of that investigation, Special Agent Dave Guzy of t he Attorney General's Office placed an advertisement i n a sexually explicit magazine that, in a roundabout wa y, invited readers to trade pornographic materials inv olving children. The advertisement directed inter ested pa rties to respond in writing to Postal Inspector Thomas Kochm an,

3although Kochman's affiliation with the Inspection Service

obviously was not disclosed. On March 6, 1997, Ray Donald Loy wrote to Kochman indicating that he and his wife, Maria, both collected child pornography, and expressing an interest in trading tapes. Loy stated that if Kochman was serious about trading, he should call L oy so that they could discuss it over the telephone.

On March 17, 1997, Kochman monitored and r ecorded a call placed by Guzy to Loy. During that conversatio n, Loy gave detailed descriptions of some of the tapes in his collection, and told Guzy that he could "put togeth er" tapes for trading. He also represented that he traded wit h many people and offered to give Guzy their names. Loy de scribed how he had produced videos by hiding a camcor der i n his bag and filming up the skirts of young girls as the y rode the escalators at a mall, and, in the course of the con versation, Loy specified that he was interested in r eceiving material involving girls ranging from age eight to age thirt een. He specifically requested that Guzy send him a tape of girls between the ages of eight and ten in a bathtub ("Ba th Time video"), which Guzy agreed to do. On April 28, 1997

, Kochman received a letter from Loy bearing the retu rn address of R. Loy, P.O. Box 114, Langeloth, Pennsyl vania 15054. Again, Loy asked that the Bath Time video be sent to him. In exchange, Loy offered to send a video of twelveand thirteen-year-old children engaged in sexually explicit

conduct.

On May 6, 1997, Postal Inspector Thomas Clinton delivered the package containing the Bath T ime vid eo to Loy's post office box in Langeloth and observed Loy accept delivery of the package. Other agents maintained surveillance of Loy as he left the post office and returned home with the package. Loy was observed entering hi s residence with the package in his possession. Clint on then executed a previously obtained search warrant, seiz ing from Loy's residence the Bath Time videotape as well as another tape depicting child pornography, fifteen computer disks containing child pornography, fifty videocassettes, several pornographic magazines, a VCR, and a television set

. Clinton also seized various letters describing Loy' s solicitation of child pornography and his of fers t o trade

such materials.

4In September 1998, Loy pled guilty to one count of

knowingly receiving child pornography thr ough the United States mail in violation of 18 U.S.C. S 2252(a)(2). He had also been indicted on one count of violating S 2252 (a)(4)(B). At the time, Section 2252(a)(4)(B) made it a crime to knowingly possess: (1) three or more items; (2) con taining visual depictions; (3) produced using materials tra nsported in interstate and foreign commerce; (4) if producti on of the materials involved the use of minors engaging in se xually explicit conduct. See 18 U.S.C.A. S 2252(a)(4)(B) ( West 1997). Prior to entering his plea, Loy had challeng ed the S 2252(a)(4)(B) count by filing a motion to suppres s the

evidence on which it was based. The District Court denied the motion, and Loy then entered a conditional guil ty plea on the S 2252(a)(4)(B) count that preserved his rig ht to appeal from the denial.

The District Court sentenced Loy to a 33-month ter m of imprisonment, followed by three years of supervised release. Additionally, the court imposed special co nditions on Loy's supervised release, requiring him, inter a lia, to undergo testing and treatment for drug and alcohol abuse, prohibiting him from having unsupervised contact wi th minors, and forbidding him from possessing por nogr aphy of any type. Loy objected to these special conditions, arguing that they were not supported by the recor d and tha t they violated his fundamental rights. In the first appea l, we upheld the denial of Loy's motion to suppress and t he condition requiring drug testing, but r emanded the case to the District Court to state its reasons why the rem aining conditions had been imposed. See Loy, 191 F .3d at 369-71.

Following remand, the District Court enter ed an or der amending Loy's sentence to eliminate the condition that he undergo testing and treatment for alcohol abuse whi le on supervised release. The court then reimposed the conditions barring Loy from possessing por nography of any type, as well as from having any unsupervised conta ct with minors, adding the further requirement that any supervision must come from someone other than his w ife. In reimposing these conditions, the court explained that because "it is sometimes impossible to dif ferentia te between children and adults in pornographic materials," the former

5condition was necessary to protect childr en who ar e

victimized in child pornography as well as to deter Loy from further criminal conduct or from attempting to obta in illegal child pornography. The latter condition was imposed to protect the minors with whom Loy might come into contact, and to deter Loy from attempting to cr eat e "sexually explicit depictions of children." Loy now appeals for a second time, from an amended judgment of sent ence entered in the District Court for the W estern Dist rict of Pennsylvania. The District Court had jurisdiction p ursuant to 18 U.S.C. S 3231, which grants the district cour ts jurisdiction over all offenses against the laws of the United States. We have jurisdiction to review the District Court's final order pursuant to 28 U.S.C. S 1291 and 18 U.S .C. S 3742(a).

II. Standard of Review

A sentencing court's decision to impose conditions of supervised release is reviewed for abuse of discret ion. See United States v. Loy, 191 F.3d 360, 370 n.7 (3d Cir . 1999) (citing United States v. Crandon, 173 F .3d 122, 12 7 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999)). A cond ition is

within the court's discretion if two criteria are m et. First, the condition must be reasonably related to the fac tors set forth in 18 U.S.C. S 3553(a)(1) & (2)(B)-(D). Accor dingly, in imposing conditions of supervised release, the sent encing court may consider: (1) the nature and cir cumstanc es of the offense and the history and characteristics of the defendant; and (2) the need for the condition to de ter future criminal conduct, protect the public, and pr ovide the defendant with necessary training, medical car e, o r other correctional treatment. See 18 U.S.C. S 3553(a)(1) & (2)(B)- (D); see also Loy, 191 F.3d at 370.

Second, a condition must involve no greater depriva tion of liberty than is reasonably necessary to achieve the deterrence, public protection and/or corr ectional treatment for which it is imposed. See 18 U.S.C. S 3583(d)(2) . Further, a condition that restricts fundamental rights must be "narrowly tailored and . . . dir ectly related to d eterring [the defendant] and protecting the public." Crandon, 173 F.3d at

128.

6III. The Challenge to the Pornography Prohibition

A. Justiciability

Before reaching the merits of Loy's claim, we must address the government's contention that Loy's chal lenge to the pornography proscription is not justiciable. Th e government advances several arguments on this score

, implicating both the ripeness doctrine and standing considerations. Relying on United States v. Thomas, 198 F.3d 1063, 1065 (8th Cir. 1999) (holding that a pri soner's challenge to a condition of supervised release was premature because he would "not be subject to the condition for nearly a decade, during which time an y number of events may occur that would make the cond ition irrelevant"), the government explains that, inter a lia, an incarcerated prisoner may no longer have the same i nterest in engaging in the prohibited activity upon r eleas e from prison, and further, that vagueness challenges to c onditions of supervised release are prematur e until those co nditions have been interpreted by a probation officer. The government now asks that, "[a]s a matter of judicia l policy," we refrain from entertaining due pr ocess challenge s to conditions of supervised release prior to a violati on of those conditions. Although the government avoids the word s, it essentially asks us to hold that Loy's challenge fa ils to meet the prudential aspects of ripeness.

Additionally, in recommending that we adopt a judic ial policy of refusing to hear due process challenges t o unenforced conditions of release, the government al so relies on the standing requirements typically necessary to mount vagueness challenges to statutes that do not infrin ge constitutionally protected rights. Thus, citing Par ker v. Levy, 417 U.S. 733 (1974), the government has argue d that because vagueness challenges may typically only be made in the context of particular purported violations, Loy must wait until he is facing revocation proceedings befo re he will

be able to raise his claim. We will addr ess each o f these arguments in turn, ultimately holding that Loy's cl aim is not only justiciable, but, in fact, consideration a t this time promotes judicial efficiency and is in keeping with the

7demonstrated congressional intent that sentences be

reviewed on direct appeal.

1. Ripeness

In United States v. Stine, 646 F.2d 839 (3d Cir. 19 81), this Court held that a defendant who failed to appe al a probation condition at the time it was enter ed aga inst him was barred from lodging a facial attack on the cond ition as a defense in a revocation proceeding. See id. at 84 6-47. In so doing, we observed that "the federal courts have uniformly permitted defendants sentenced to probati on to challenge the validity of their probation condition s on direct appeal." Id. at 846 n.16. In United States v. Ofchi nick, 937 F.2d 892 (3d Cir. 1991), we reaffirmed Stine, holdi ng that a challenge to a condition of supervised release moun ted immediately after the sentence met the Article III test for ripeness. Our holding in Ofchinick was based in par t on the fact that, if the defendant waited until revocation proceedings to challenge the condition, he would li kely be found to have waived his right to object. See id. a t 897. In that case, we characterized as "illogic[al]" the go vernment's position that a probationer must risk incar ceratio n in order to challenge a condition. See id. at 897 n.5.

Although helpful in guiding our approach to the iss ue, these cases do not explicitly address the "prudenti al" ripeness doctrine. That doctrine is intended to"pre vent the courts . . . from entangling themselves in abstract disagreements over administrative policies, and als o to protect the agencies from judicial inter ference un til an

administrative decision has been formalized and its effects felt in a concrete way." Abbott Labs. v. Gardner, 3 87 U.S. 136, 148 (1967). In determining whether a claim is ripe, a court must look at: (1) "the hardship to the partie s of withholding court consideration"; and (2) thefitnes s of the legal issue for judicial review. Id. at 149; see al so Artway v. Attorney General of N.J., 81 F.3d 1235, 1247 (3d Ci r. 1996). In view of the government's contentions, we analyze this case in terms of these elements of the prudential r ipeness

doctrine.

8a. Hardship to Parties

The essence of Loy's claim is that not knowing the scope of the pornography proscription is, in itself, a ha rdship. He argues that because of the vagueness, he will not k now what he can and cannot view. If, as the gover nment argues, he must wait until he is arrested to lear n whether or not he has violated the condition, the hardship to him is apparent. As we held in Pennsylvania Department of Public Wel fare v. United States Department of Health & Human Services , 101 F.3d 939 (3d Cir. 1996), the fact that a party may be forced to alter his behavior so as to avoid penalties unde r a potentially illegal regulation is, in itself, a har dship. In so doing, we opined that an argument to the contrary w ould

be

like saying that an increase in the inter es t rate charged for late payments on a credit card pr esents no hardship to the customer because the custome r has not yet made a delayed payment under the new and higher interest rate. We disagree with that premise. Instead, we think it more likely that the cu stomer will have to change his behavior at the time he i s infor med

of the rate hike in order to avoid the risk of having to pay the higher interest rate and hence will suf fer a direct hardship at the time of the rate hike . The fact that the new, higher interest rate is a cont ingent future charge does not preclude it from causing har m to the party at the time it is put into place.

Id. at 946.

In addition, the government's blanket r equirement that Loy face revocation proceedings befor e being permi tted to challenge his conditions of release is at odds with the Supreme Court's pronouncement in Stef fel v. Thomps on, 415 U.S. 452 (1974), where the Court stated that "i t is not necessary that petitioner first expose himself to a ctual arrest or prosecution to be entitled to challenge a statute

that he claims deters the exercise of his constitut ional rights." Id. at 459.

b. Fitness for Judicial Review

An examination of the "fitness for judicial r eview " of a particular claim requires that a court look at the nature of

9the question presented. Therefore, we will examine

"whether or not the question is purely legal and ea sy to resolve." Pennsylvania Dep't of Pub. W elfare v. Un ited States Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1 996). As we have said, "[t]he more that the question pres ented is purely one of law, and the less that additional fac ts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa." Artway v. Attor ney General of N.J., 81 F.3d 1235, 1249 (3d Cir. 1996).

In this case, the question is purely one of law: wh ether the pornography proscription is unconstitutionally vague and does not provide Loy with sufficient notice of what he may do. Nothing about this contention will change b etween now and the time when he is released fr om prison. The government would prefer that we addr ess Loy's chal lenge in the context of a particular magazine or other publi cation (an argument that has the perverse quality of askin g us to refuse to rule on Loy's vagueness challenge because the condition is too vague to analyze). Although such contextual grounding would indeed allow us to deter mine whether or not the particular publication at issue fell within the condition, it would not in any way assist in th e more general analysis of whether the condition pr ovides Loy with sufficient warning to "know what is pr ohibited, so that he may act accordingly" in his day-to-day activities. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The government's approach would have Loy discover the meaning of his supervised release condition only un der continual threat of reimprisonment, in sequential h earings before the court. Such an exercise is not necessary , nor will it clarify the issues.

c. Congressional Intent

In Abbott Laboratories, the Supreme Court held that congressional intent is an important component of t he prudential ripeness inquiry. See Abbott Labs. v. Ga rdner, 387 U.S. 136, 139-40 (1967). The legislative histor y of the Sentencing Reform Act of 1984 evidences Congr ess's intention that direct appellate review be the prefe rred method of reviewing a district court's sentence. Se e S. Rep. No. 98-225, at 151 (1984), reprinted in 1984 U.S.C. C.A.N.

103182, 3334 (noting, in the context of a discussion of

procedures for direct appellate r eview of sentence s, that

"most Western nations . . . consider review at the behest of either the defendant or the public to be a fundamen tal precept of a rational sentencing system, and the Co mmittee considers it to be a critical part of the foundatio n for the bill's sentencing structure"); id. at 154, reprinte d in 1984 U.S.C.C.A.N. at 3337 ("The Committee intends that a sentence be subject to modification through the app ellate process. . . ."). Section 3742 of Title 18 of the U nited States Code, which allows for appellate review of sentence s, was added in 1984 as part of the congressional scheme t o ensure greater uniformity in sentencing. See S. Rep . No. 98-225, at 150, reprinted in 1984 U.S.C.C.A.N. at 3 333. This change from the previous regime, which provide d for no such review, demonstrates the extent to which Co ngress felt that the appellate process was an integral par t of the formulation of the sentence. Cf. id. at 151, reprin ted in 1984 U.S.C.C.A.N. at 3334 ("Appellate review of sen tences is essential to assure that the guidelines ar e app lied properly and to provide case law development of the appropriate reasons for sentencing outside the guid elines. This, in turn, will assist the Sentencing Commissio n in refining the sentencing guidelines. . . ."). Thus, the legislative history of the current sentencing schem e demonstrates Congress's intention that appellate co urts consider the legality of conditions of supervised r elease at the time of their imposition, rather than only in t he context of an appeal from a revocation proceeding.

2. Standing

The government alternatively contends that Loy does not have standing to raise his claim, on the ground tha t "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756 (1974). The government submits that L oy cannot be heard until the condition has been applie d to his specific conduct. However, there ar e crucial diffe rences between the context in which Loy presents his chall enge and the contexts in which the traditional standing requirements for vagueness challenges wer e develop ed.

11A typical vagueness challenge is brought as a defen se to

a criminal charge, and can only be raised by a defe ndant whose own conduct arguably did not fall within the terms of the statute, thus allowing the defendant to clai m that the lack of fair notice led to a deprivation of liberty without due process of law. See, e.g., United States v. Nationa l Dairy Prods. Corp., 372 U.S. 29, 32-33 (1963) ("Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understan d that his contemplated conduct is proscribed. In determin ing the sufficiency of the notice a statute must of necessi ty be examined in light of the conduct with which a defen dant is charged." (citations omitted)). A defendant whose c onduct is at the "core" of the activities clearly covered by the statute's terms may only raise a vagueness defense if the sta tute is one that is likely to chill the exercise of constit utionally protected conduct. See United States v. Mazurie, 41 9 U.S. 544, 550 (1975) ("It is well established that vague ness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.").1Vagueness claims are therefore subject to different standing requir ements dependi ng on the nature of the statute or rule under attack. 2

As a convicted felon sentenced to a term of supervi sed release, Loy's constitutional rights do not have th e same

___________________________________________________ ______________

1. See also Kolender v. Lawson, 461 U.S. 352, 359 n .8 (1983) (holding that facial vagueness challenges are per missible w here "a law reaches a substantial amount of constitutionally protected co nduct" (citation omitted)); Hoffman Estates v. Flipside, Hoffman Est ates, Inc., 455 U.S. 489, 494-95 (1982) (noting that, if a statute "impl icates no constitutionally protected conduct," a pr eenforcem ent challenge can succeed on vagueness grounds only if the statute is "impermissibly vague in all of its applications"); Young v. Americ an Mini Theatres, Inc., 427 U.S. 50, 59-60 (1976) ("[I]f the statute's dete rrent effect on legitimate expression" is "real and substantial," parties may challenge the statute "even though there is no uncertainty about the impa ct . . . on their own rights.").

2. When a statute is vague and arguably involves pr otected conduct, vagueness analysis will necessarily intertwine with overbreadth analysis. See Hoffman Estates, 455 U.S. at 494 n.6 ("[A] cour t should evaluate the ambiguous as well as the unambiguous scope of the e nactment. To this extent, the vagueness of a law affects overbr eadth analysis.").

12scope as those of ordinary persons. See United Stat es v.

Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Ci r. 1975) (observing that "probationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free" and that "[m]erely becau se a convicted individual's fundamental rights ar e invo lved should not make a probation condition . . . automat ically suspect"). In evaluating constitutional challenges to probation conditions, we have upheld conditions tha t are "directly related to deterring [the offender] and p rotecting the public," even when First Amendment inter ests a re at stake. United States v. Crandon, 173 F .3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999). The gov ernment, asserting that in the context of supervised r eleas e there is no "protected" conduct to chill, asks us to apply t he more stringent standing rules to Loy's vagueness and overbreadth challenge, requiring him either to moun t his challenge in the context of a particular purported violation so that we can assess whether the condition is vagu e or overbroad with respect to that violation, or, presu mably, to demonstrate that the condition is vague in all of i ts applications. But the government fails to r ecogniz e there are important differences between a probationer on supervised release and a member of the general publ ic that affect the standing analysis.

To begin with, a defendant charged with violating a release condition, unlike a defendant char ged with violating a statute, does not enjoy "the full panoply of righ ts" normally available in a criminal proceeding. Morris sey v. Brewer, 408 U.S. 471, 480 (1972). For instance, def endants in revocation proceedings face a lower standard of proof, see 18 U.S.C. S 3583(e) (permitting revocation if a court finds, by a preponderance of evidence, that a condi tion has been violated); a greater range of evidence that ma y be admissible against them, see United States v. Bazza no, 712 F.2d 826, 829 (3d Cir. 1983) (en banc) (per curiam) (no exclusionary rule in revocation proceedings); Unite d States v. McCallum, 677 F.2d 1024, 1026 (4th Cir . 1982) (permitting hearsay evidence in revocation proceedi ngs); a lack of a jury right, see Gagnon v. Scarpelli , 411 U.S. 778, 789 (1973); and no right against self-incrimination , see United States v. Conte, 99 F.3d 60, 66 (2d Cir. 199 6). The

13fewer procedural protections available at a revocat ion

proceeding, as opposed to a trial, make it far more

hazardous for a releasee to wait until a condition has been enforced in order to test its validity.

Secondly, persons under conditions of supervised r elease are presumably more likely to be"prosecuted" for th eir violations--these conditions are, after all, specia l "laws" tailored only to them. Loy, as a felon on supervise d release, is in far more danger as the peculiar tar get of a "law" applicable only to him than he would be as a member of the general public mounting a challenge to a law th at might never be applied to his conduct. Cf. Poe v. Ullman, 367 U.S. 497, 501 (1961) (plurality opinion) (refusing to en tertain, on prudential justiciability grounds, a challenge to Connecticut's ban on the use of contraceptives, obs erving that "[d]uring the more than thr ee-quarters of a c entury since [the law's] enactment, a prosecution for its violation seems never to have been initiated" except in a sin gle instance).

Further, because the condition is unique to Loy, th ere is no likelihood of a general groundswell of support f or a change in the "law." Therefore, limits on standing that have

been advanced in cases like United States v. Richar dson, 418 U.S. 166, 175 (1974) (no "taxpayer standing" to challenge a statute mandating that CIA expenditur e s be kept secret), on the ground that "generalized griev ances" are more appropriately addressed through the politi cal process, are inapplicable to challenges to conditio ns of supervised release. And because the condition is ap plicable only to Loy, there is no chance that an "enforcemen t policy" will provide guidance as to the condition's contour s. Hoffman Estates, 455 U.S. at 502.

On a broader level, it should be remember ed that a ll of the justiciability doctrines--standing, ripeness, a nd mootness--stem in part from a desire to allow the o ther branches of government to engage in their nor mal p rocess of lawmaking before invoking the judicial power to stop such efforts in their tracks. For instance, in Abbo tt Laboratories v. Gardner, 387 U.S. 136 (1967), the S upreme Court explained that the ripeness doctrine in part serves to "protect the agencies from judicial interference un til an

14administrative decision has been formalized." Id. a t 148.

Similarly, in Lujan v. Defenders of Wildlife, 504 U .S. 555 (1992), the Court held that the citizen-suit pr ovi sions of the Endangered Species Act, which conferred standing on "any person" to sue United States instrumentalities to f orce compliance with the Act, represented an unconstitut ional attempt by Congress to breach the separation of pow ers by policing the activities of the Executive branch. Se e id. at 576-77; see also Poe, 367 U.S. at 503 ("In part [th e justiciability rules] derive from the fundamental f ederal and tripartite character of our National Government and from the role--restricted by its very r esponsibility--o f the federal courts . . . within that structure.").

In the context of the supervised release, however, the condition applicable to a particular prisoner--that is, the "law" being challenged--is created by the judiciary , within the jurisdictional boundaries set by Congress. No p rotection is accorded other divisions of government when we s tay our hand; in fact, by doing so, we actively impede the proper process of lawmaking. Congress has entrusted the responsibility for formulating appr opriate conditi ons of release to the judiciary, and has provided specific statutory permission for offenders to obtain appellate review of their sentences at 18 U.S.C. S 3742(a). Ther efore, judic ial review of criminal sentences is an integral part of the pr ocess of creating these individual "laws," and just as legis lation is only enacted pursuant to bicameralism and pr esentm ent, see INS v. Chadha, 462 U.S. 919, 954-55 (1983), so too criminal sentences are formulated in part through t he appellate process. To refuse to r eview such a cond ition would be to impede this process of judicial lawmaki ng.

3. Judicial Efficiency

Our position also promotes judicial efficiency. See , e.g., Allstate Ins. Co. v. Wayne County, 760 F .2d 689, 6 96 (6th Cir. 1985) (holding that the ripeness inquiry inclu des considerations of judicial economy); Independent Ba nkers Ass'n of Am. v. Smith, 534 F.2d 921, 928 (D.C. Cir. 1976) (same). Loy is pursuing, as a routine matter , his appellate right to challenge a final order of the District Co urt. We review these conditions all the time, and, as a pru dential

15matter, it makes sense to review them at this stage . Just

last year, we reviewed the conditions of a supervis ed release in United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 (1999), and upheld a c ondition prohibiting the defendant access to the inter net a fter he was convicted of receiving child pornography. The government's approach merely ensur es multiple adjudications as defendants appeal parts of their s entences immediately--as, indeed, they must do under United States v. Stine, 646 F.2d 839 (3d Cir. 1981)--and parts of them later on. Cf. FTC v. Standard Oil Co., 449 U.S. 232 , 242 (1980) (ripeness doctrine is intended to prevent "p iecemeal review" and to ensure judicial efficiency).

4. Summary

Thus, (1) we have "case or controversy" jurisdictio n; (2) the issues are legal ones that we can easily r esol ve without reference to concrete facts; (3) the defendant will experience a hardship if we do not resolve the issues; (4) the traditional canons that counsel against hearing the se sorts of challenges are inapplicable in the context of su pervised release conditions; and (5) the judicial system has an interest in dealing with this case as expeditiously as possible, instead of waiting for a distinct appeal of a

conviction for a violation of the conditions of r e lease. Therefore, the case is ripe, and we will r each the merits of Loy's challenge.

B. The Jurisprudence

The District Court ordered that, as a condition of his supervised release, Loy be prohibited"from possessi ng all forms of pornography, including legal adult pornogr aphy, in order to: (1) protect the children that are victimi zed in the production of child pornography; and (2) deter defe ndant from engaging in additional criminal conduct." Loy claims

that the District Court's order is unconstitutional ly vague, because "[t]he term `pornography' lacks a legal def inition" and "fails to give Mr. Loy notice of which material s he may not possess."

16The constitutional requirement that laws be reasona bly

precise as to the scope of prohibited conduct serve s three distinct purposes:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insi st that laws give the person of ordinary intelligenc e a reasonable opportunity to know what is pr oh ibited, so that he may act accordingly. . . . Second, . . . [a] vague law impermissibly delegates basic policy mat ters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. . . . Third . . . where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit t he exercise of [those] freedoms.

Grayned v. City of Rockford, 408 U.S. 104, 108-09 ( 1972) (internal citations and quotation marks omitted). A statute violates due process of law if it "either forbids o r requires the doing of an act in terms so vague that men of c ommon intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); see also United States v. Pungitore et al., 910 F.2d 1084, 1104 (3d Cir. 1990 ). The same principles apply to a condition of supervised r elease. See, e.g., United States v. Schave, 186 F.3d 839 (7 th Cir. 1999) (citing Birzon v. King, 469 F.2d 1241, 1243 ( 2d Cir. 1972)); LoFranco v. United States Parole Comm'n, 98 6 F. Supp. 796, 810-11 (S.D.N.Y. 1997).

Courts have long grappled with the problem of gener ating definitions to facilitate the regulation of sexuall y explicit materials. In 1957, the Supreme Court held that"obs cene" speech is beyond the coverage of the First Amendmen t. See Roth v. United States, 354 U.S. 476, 485 (1957). Fo r years afterward, the Court struggled to find a definition of "obscenity," see, e.g., Memoirs v. Massachusetts, 3 83 U.S. 413 (1966); Redrup v. New York, 386 U.S. 767 (1967) ; Kois v. Wisconsin, 408 U.S. 229 (1972) (per curiam), fin ally settling on the now-familiar Miller test, see Mille r v. California, 413 U.S. 15 (1973). In or der for a wor k to fall outside the scope of the First Amendment, it must: (1) taken as a whole, according to community standards, appeal to the "prurient interest," (2) depict, "in a patently

17offensive way," sexual conduct as defined by state law, (3)

when taken as a whole, lack "serious literary, arti stic, political, or scientific value." Id. at 24. "Sexual ly-oriented

work is not obscene unless all three elements of th e Miller

test are satisfied." United States v. Various Artic les of Obscene Merchandise, Schedule No. 2102, 709 F.2d 13 2, 135 (2d Cir. 1983).

The determination whether a particular work is"obsc ene" under the Miller test is an exacting inquiry. Thoug h "community standards" are used to determine whether a work is patently offensive, see Smith v. United Sta tes, 431 U.S. 291, 301 (1977), a "reasonable person" standar d must

be used to determine whether a work lacks serious m erit, see Pope v. Illinois, 481 U.S. 497, 500-501 (1987). "Prurience," for Miller purposes, does not include an appeal to "normal, healthy sexual desires," but only inclu des "material whose predominate appeal is to a shameful or morbid interest in nudity, sex, or excr etion," Bro ckett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) (in ternal quotation marks omitted). "Sexual conduct" can incl ude "lewd exhibition of the genitals," but a distinctio n must be

made between exhibitions that are lewd and those th at are not lewd, because "nudity alone is not enough to ma ke material legally obscene." United States v. V ariou s Articles of Merchandise, Schedule No. 287, 230 F .3d 649, 657 ( 3d Cir. 2000) (quoting Jenkins v. Georgia, 418 U.S. 153, 16 1 (1974)).3 And, as we recently held, the Miller test's protect ion for works of serious political value "is broad enough t o encompass that which might tend to bring about `pol itical and social changes.' " Various Articles of Merchand ise, 230 F.3d at 658 (holding that nudist magazines ar e not obscene because, inter alia, they "champion nudists' altern ative lifestyle").

Many items that would almost certainly fall under t he general rubric of "pornography" may not be captured by Miller's prongs. See, e.g., V arious Articles of Ob scene

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3. Indeed, the panel concluded that the subjects of the nude photographs at issue in Various Articles of Merchan dise were not "posed in a way `suggestive of moral looseness.' " Various Articles of Merchandise, 230 F.3d at 657.

18Merchandise, 709 F.2d at 137 (upholding trial court

determination that the film Deep Thr oat was not pa tently offensive by the community standards of New York); Penthouse Int'l, Ltd. v. McAuliffe, 610 F .2d 1353, 1373 (5th Cir. 1980) (holding that the January 1978 issue of Penthouse, but not Playboy, was obscene). In Americ an Booksellers Association, Inc. v. Hudnut, 771 F .2d 323 (7th Cir. 1985), the court examined a statute that speci fically defined the term "pornography," noted the disjuncti on between what is "pornographic" and what is "obscene ," and struck down, on First Amendment grounds, a pr ohibi tion

on the former but not the latter. See id. at 334.

As is demonstrated by the foregoing discussion, alt hough the scope of the term "obscenity" has been exhausti vely examined (and even the term "indecency" has been gi ven a specific definition by the FCC, see FCC v. Pacifica Found., 438 U.S. 726, 731-32 (1978)), the term "por nograph y," unmoored from any particular statute, has never rec eived a precise legal definition from the Supr eme Court or any other federal court of appeals, and remains undefin ed in the federal code.4 The Supr eme Court in Miller use d only a footnoted dictionary reference for its own definiti on. See Miller, 413 U.S. at 19 n.2 (defining por nography a s "a description of prostitutes or prostitution" with a secondary meaning of "a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of er otic behavior designed to cause sexual excitement" (quoting Webst er's Third New International Dictionary (1969)). Further , in the context of Loy's supervised release, in or der to c omport with First Amendment standards, the prohibition on pornography must be narrowly tailor ed to serve the goals of advancing Loy's rehabilitation and protecting the p ublic. See Part II, supra.

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4. Although federal law contains a definition of ch ild pornography, see 18 U.S.C. S 2256, the release condition imposed her e cannot be presumed to track that statute, as the condition ex plicitly prohibits "legal adult pornography." Further , the condition does not limit its

reach to visual works, as does federal law.

19C. Discussion

1. Pornography's Meaning

The word pornography is derived fr om the Greek pornographos, which meant "writing of harlots." (Po rne = harlot and graphos = writing). Accor ding to the Ox ford English Dictionary (1986), pornography is defined a s "1. . . . a description of prostitutes or of prostitution, as a matter of public hygiene. . . . 2. Description of the life, m anners, etc., of prostitutes and their patrons; hence, the expres sion or suggestion of obscene or unchaste subjects in liter ature or art; pornographic literature or art." According to MerriamWebster's Collegiate Dictionary (1999), pornography is "1: the depiction of erotic behavior (as in pictur es o r writing) intended to cause sexual excitement 2: material (as books or a photograph) that depicts erotic behavior and i s intended to cause sexual excitement 3: the depictio n of acts in a sensational manner so as to arouse a quick int ense emotional reaction." The Funk & W agnalls New Stand ard Dictionary of the English Language (1941) defines pornography as "1. Description of pr ostitutes and of prostitution as related to public hygiene. 2. The e xpression or suggestion of the obscene in speaking, writing, etc.;

licentious art or literature." The W ebster's Third New International Dictionary definition was quoted in P art III.B,

supra.

Though these various definitions are instructive in a general way, they clearly lack the greater pr ecisi on of the Miller test for obscenity. Unlike instances of obsc enity, we could easily set forth numerous examples of books a nd films containing sexually explicit material that we could not absolutely say are (or are not) por nographic. One such example, as discussed below, might be Playboy , whi ch features nudity but not sexual conduct. It is also difficult to gauge on which side of the line the film adaptation s of Vladimir Nabokov's Lolita would fall, or if Edouard Manet's Le Dejeuner sur L'Herbe is pornographic (or even so me of the Calvin Klein advertisements), and we certainly cannot know whether the pornography condition is r estrict ed only to visual materials, or whether it encompasses pur e text and sound recordings. In Farrell v. Burke, No. 97 C IV.

205708(DAB), available in 1998 WL 751695 (S.D.N.Y. Oc t. 28,

1998), the district court described a situation in which a parole condition prohibiting "por nography" was int erpreted by a parole officer to apply equally to Playboy and to photographs of Michelangelo's David. Similarly, the Court of Appeals for the Seventh Circuit, examining the scop e of a statutory definition of pornography, observed that it could encompass everything "from hard-cor e films to W.B. Yeats's poem `Leda and the Swan.' " American Booksellers As s'n v. Hudnut, 771 F.2d 323, 327 (7th Cir . 1985). Althoug h the propriety of affixing the title "por nography" to a ny of these items could foster debate, the debate would r emain undecided. Put differently, with r egard to "pornog raphy" rather than "obscenity," we do not "know it when we see it."

Additionally, as we observed in United States v. Cr andon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. C t. 138 (1999), to avoid First Amendment infirmity, a proba tion condition must be "narrowly tailored" and "directly related" to the goals of protecting the public and pr omotin g Loy's rehabilitation -- thus, the condition must not exte nd to all arguably pornographic materials, but only to those that fall into this subset. Even the government conceded in i ts supplemental brief that it does not know whether Pl ayboy is part of this group, which is, in fact, a change from its position, taken during oral argument, that Playboy absolutely constituted "pornography." 5 Loy, then, can hardly be expected to be able to discer n, in advan ce, which materials are prohibited, with no mor e than the constitutional standard of permissible r estriction s to guide him. Cf. Laurence H. Tribe, American Constitutional Law (2d ed. 1988) S 12-29, at 1031 ("[T]he Constitution does

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5. The government argues that a condition of superv ised release is akin to a prison regulation, and thus, because por nogra phy is routinely forbidden in prisons, such a restriction can be fre ely applied to Loy.

This contention is patently without merit, as it flatly contradicts the Supreme Court's statement in Morrissey v. Brewer , 408 U.S. 471 (1972), that "[t]he liberty of a parolee enables him to do a wid e range of things open to persons who have never been convicted of any cri me. . . . Though the state properly subjects him to many restrictions no t applicable to other citizens, his condition is very differ ent from tha t of confinement in a prison." Id. at 482.

21not, in and of itself, provide a bright enough line to guide

primary conduct, and . . . a law whose reach into p rotected spheres is limited only by the background assurance that unconstitutional applications will eventually be se t aside is a law that will deter too much. . . .") (emphasis r emoved).6

For all of these reasons, the pornography condition runs afoul of the due process values that the vagueness doctrine is meant to protect, and, to the extent that Loy is likely to avoid materials that are not "dir ectly related" to the goals of rehabilitation and deterrence, the condition threat ens to chill protected conduct, as well.

2. Effects of a Scienter Requir ement

The government advances the intriguing ar gument th at the condition could be interpreted so as to include a salvaging scienter requirement. But this cannot sol ve the problem. To begin with, although pr obation or paro le will usually not be revoked for unknowing violations of conditions of release, unless a scienter r equireme nt is explicitly written into the condition (which is not the case here), there is no way to be certain that one will be applied during revocation proceedings. This is because rele ase can be revoked for reasons that have nothing to do with the "fault" of the offender, but instead are more relat ed to protection of the public. See, e.g., United States v. Warner, 830 F.2d 651, 657 (7th Cir. 1987) ("If . . . probat ion's purposes have been frustrated, revocation is fair a nd appropriate even if the probationer did not willful ly violate

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6. In United States v. Schave, 186 F .3d 839 (7th C ir. 1999), the Seventh Circuit avoided a vagueness problem in a condition of supervised release that prohibited associations with white supr emacis ts by construing it to encompass only those associations that "r easonably relate[d]" to the dangers against which the condition was intended to protect. Id. at 844. However appropriate such a measure may have been un der the circumstances of that case, a similar construction would not save the

condition here. The condition in Schave was not onl y more particular than Loy's (it prohibited associations with certain well-defined groups), but also was part of a long history of "association al" conditions that are so common that they have acquired something of a ju dicial gloss as to their scope. See Part IV, infra .

22his probation conditions."); United States v. McLeo d, 608

F.2d 1076, 1078 (5th Cir. 1979) (per curiam) ("A go od faith attempt to comply with a probation agreement is not a controlling factor, but only one of many factors th at a District Court may consider in the exercise of its discretion to revoke probation.").

Even if a scienter requirement wer e to be read int o the condition, however, this construction would not sav e it. Though in some situations, a scienter requir ement may mitigate an otherwise vague statute, see, e.g ., Ho ffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489, 499 (1982); Colautti v. Franklin, 439 U.S. 379, 395 (1978), such a requirement will not cure all defects for al l purposes, see, e.g., Cramp v. Boar d of Pub. Instru ction of Orange County, 368 U.S. 278, 286 (1961) (invalidati ng a loyalty oath on the ground that, notwithstanding th e fact that the oath-taker was required only to affirm tha t he or she had never "knowingly" counseled or supported Communists, the oath was too vague to be reasonably understood); Planned Parenthood of Cent. N.J. v. Fa rmer, 220 F.3d 127, 138 (3d Cir. 2000) (holding that a sc ienter requirement cannot save a statute criminalizing "pa rtialbirth abortion" where the definition of such a proc edure is, in itself, vague); Nova Records, Inc. v. Sendak, 70 6 F.2d 782, 789 (7th Cir. 1983) ("A scienter r equirement cannot eliminate vagueness . . . if it is satisfied by an` intent' to do something that is in itself ambiguous."). Indeed, a contrary rule would rob the vagueness doctrine of all of its meaning, for legislatures would simply repair otherwise vagu e statutes by inserting the word "knowingly." See Ric hmond Med. Ctr. for Women v. Gilmor e, 55 F. Supp. 2d 441 , 498 (E.D. Va. 1999), aff 'd on other gr ounds, 224 F.3d 337 (4th Cir. 2000).

3. Delegation of Power to the Probation Officer

The government suggests that the term"pornography" is cabined by the fact that Loy could check with his p r obation officer to gauge its applicability to a particular case. However, although there is no question that "[i]n a ddition to the bare words of the probation condition, the prob ationer may be guided by further . . . instructions . . . o f the . . .

23probation officer," United States v. Romero, 676 F. 2d 406,

407 (9th Cir. 1982), the sentencing court may not wholesaledly "abdicate[ ] its judicial r esponsibil ity" for setting the conditions of release, United States v. Mohammad, 53 F.3d 1426, 1438 (7th Cir . 1995) (invalidating an order of restitution wher e the se ntencing court allowed the probation officer to dictate the manner of payment). A condition with no core meaning beyond "whatever is necessary for Loy's rehabilitation" ca nnot be cured by allowing the probation officer an unfetter ed power of interpretation, as this would create one of the very problems against which the vagueness doctrine is me ant to protect, i.e., the delegation of "basic policy matt ers to policemen . . . for resolution on an ad hoc and sub jective basis." Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); see LoFranco v. United States Par ole Comm' n, 986 F. Supp. 796, 810 (S.D.N.Y. 1997) (holding a par ole c ondition to be unconstitutionally vague because the pr ohibi tion on association with "outlaw motorcycle gangs" delegate d policymaking power to the parole officer); cf. Unit ed States v. Kent, 209 F.3d 1073, 1079 (8th Cir . 2000) (inva lidating a condition requiring probation officer to determin e whether the defendant should undergo counseling). 7 Though it is true that "[c]ondemned to the use of wor ds, we can never expect mathematical certainty from our language," Grayned, 408 U.S. at 110, without a more definitive standard to guide the probation officer's discretio n, there is a real danger that the prohibition on por nography may ultimately translate to a prohibition on whatever t he officer personally finds titillating. Cf. Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (striking down a statute punishing assemblages of persons who conducted themselves in an "annoying" manner, on the ground t hat though a city may forbid certain forms of antisocia l conduct, "[i]t cannot constitutionally do so throug h . . . an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed").

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7. A similar condition was imposed in this case; ho wever, Loy has not raised any challenges to it, and so we need not add r ess the question whether this court would follow the Eighth Cir cuit reasoning regarding the propriety of conditions that allow the pr obati on officer to determine whether a defendant is in need of counseling.

244. Conclusion

To be sure, we are dealing her e with an unusually broad condition. We in no way mean to imply that courts m ay not impose restrictions on the consumption of sexually explicit materials by persons convicted of sex crimes. Indee d, we do not expect that our holding today will greatly dimi nish a district court's discretion in imposing such condit ions for the simple reason that almost any r estriction upon sexually explicit material may well aid in rehabilitation an d protection of the public. Only in the exceptional c ase, where a ban could apply to any art form that employs nudi ty, will a defendant's exercise of First Amendment rights be unconstitutionally circumscribed or chilled. A prob ationary condition is not "narrowly tailored" if it restrict s First Amendment freedoms without any resulting benefit to public safety. Here, the condition could extend not only to Playboy magazine, but also to medical textbooks. Restricting this entire range of material is simply unnecessary to protect the public, and for this rea son the condition is not "narrowly tailored."

Thus, in Loy's case, to the extent that the conditi on might apply to a wide swath of work ranging fr om s erious art to ubiquitous advertising, the condition is ove rly broad

and violates the First Amendment. To the extent tha t its breadth is unclear, it is unconstitutionally vague. That said, there is no question that the District Court could, perfectly consonant with the Constitution, restrict Loy's acc ess to sexually oriented materials, so long as that r estr iction was set forth with sufficient clarity and with a nexus to the goals of supervised release. Further, the Constitut ion would not forbid a more tightly defined restriction on le gal, adult pornography, perhaps one that clarified whether it extended non-visual materials, or that borrowed applicable l anguage from the federal statutory definition of child porn ography located at 18 U.S.C. S 2256(8).8

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8. The federal statute reads:

"child pornography" means any visual depicti on, including any photograph, film, video, picture, or compute r or computer-generated image or picture, whether made or produced b y electronic, mechanical, or other means, of sexually expl icit conduct, where--

25In sum, with no guidepost for Loy, the pornography

prohibition as currently written violates due proce ss by failing to provide Loy with adequate notice of what he may and may not do, chilling his First Amendment rights in the process. The condition "forbids . . . an act in ter ms so vague that men of common intelligence must necessar ily guess at its meaning and differ as to its applicati on." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).

IV. The Challenge to the Prohibition on Unsupervised Contact with Minors

Conditions of supervised release must be "r easonab ly related" to the goals of deterrence, pr otection of the public,

and rehabilitation of the defendant. 18 U.S.C.S 358 3(d)(1). They must also "involve[ ] no gr eater deprivation of liberty than is reasonably necessary" to meet these goals, 18 U.S.C. S 3583(d)(2), and, as stated above, supervis ed release conditions that affect constitutional rights will l ikely be valid if "narrowly tailored and . . . directly rela ted to deterring [the offender] and protecting the public. " United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cer t. denied, 120 S. Ct. 138 (1999); see also United States v. To lla, 781 F.2d 29, 34 (2d Cir. 1986) ("[C]onditions that rest rict a probationer's freedom must be especiallyfine-tuned. ").

Loy claims that there is insufficient evidence in t he record to support the condition barring him from ha ving

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(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is enga ging in sexually explicit conduct; or

(D) such visual depiction is advertised, pr omoted, presented, described, or distributed in such a manner t hat conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit con duct[.]

18 U.S.C. S 2256(8).

26any unsupervised contact with minors. He further co ntends

that the condition is "not `reasonably r elated' to the statutory goals because no evidence was presented t hat [he] ever molested a child." Finally, Loy argues that th e condition, coupled with the requirement that the "supervision" come from someone other than his wife

, functionally prevents him from bearing and raising children of his own, in violation of his fundamental rights to procreate and to maintain the integrity of his fami ly.

The District Court's findings in support of the con dition that Loy have no unsupervised contact with minors r ead as

follows:

The Court finds it appropriate to pr ohibit defendant from all unsupervised contact with minors wh ile on supervised release. Although defendant was c onvicted of possession of child pornography and not o f the production of such pornography, the evidence presented to this Court prior to sentencing demonstrates that the defendant has not only a significant knowledge of and interest in chi ld pornographic materials, but also that the de fendant himself has been involved in making videos o f young girls. Specifically, defendant described to Special Agent Guzy how he had produced videos by hiding a camcorder in a bag and filming up the skirts of girls high school age and younger as they rode esc alators at a mall, as well as how he has "hidden" camer a videotapes that he made by videotaping throu gh windows. Regardless of whether or not these videos constitute pornography, it is clear to this Court that the defendant, given his interest in child p or nography and his efforts to make sexually explicit ma terials involving children, poses a danger to childr en if left

alone with them.

Accordingly, the Court finds it appr opriat e to prohibit defendant from having unsupervised contact w ith minors. The Court does not mean by impositio n of this condition to require that defendant's pr oba tion officer or another law enforcement official be pr es ent

whenever defendant is around minors. However

, defendant is not to be alone with minors, no r is he to

27be alone with his wife and any minors. In ot her wor ds,

an adult other than defendant's wife must be pr esent when defendant is in the presence of a minor . This condition of supervised release serves to: ( 1) protect minors who may come in contact with defendan t in that defendant is not likely to attempt to m ake sexually explicit depictions of them if another adult is pr esent; and (2) deter defendant from engaging in cri minal conduct, also because defendant is not likel y to attempt to make sexually explicit depictions of children if another adult is present.

In a footnote, the court explained that "[e]vidence presented to this Court prior to defendant's sentencing indic ated that defendant's wife also has an interest in child porn ography."

Loy argues that the District Court's findings with respect to this condition are not supported by the r ecord. We disagree. As the court noted, Loy twice admitted to an undercover agent that he secretly filmed up young g irls' dresses on escalators at the local mall by placing a bag containing a hidden video camera at their feet. It may also be true that, at the subsequent hearing on his moti on to suppress, Loy claimed to have fabricated the story. But it is not true, as Loy argues, that because the evidence on this point is contradictory, the record does not support the District Court's finding.

The contradiction is of Loy's own creation. The Dis trict Court was free to conclude that the self-serving st atements Loy made before the court were less cr edible than statements he made to third parties who he believed shared his interests in child pornography. Ther efore, the record contained sufficient evidence to support the court' s finding that Loy had personally made videotapes exploiting minors.

Loy next argues that even if there is sufficient ev idence that he had secretly filmed up young girls' dresses on mall escalators, "that conduct would not be addr essed b y the condition, because the conduct would not have taken place when Mr. Loy was alone with minors." The argument i s wholly without merit. The fact that Loy was willing to exploit minors in public places fully supports a co ndition barring him from being alone with them in private.

28Loy further contends that the condition is vague in that

it might conceivably apply to casual or unavoidable contact with minors in public places. This argument is one that has a long and familiar history in the courts; associat ional conditions placed upon parolees and probationers ar e commonplace and have frequently been challenged as overly broad or vague because they potentially exte nd to casual encounters. See 1 Neil P. Cohen, The Law of Probation and Parole S 9.11, at 9-19 (2d ed. 1999). At this point, it is well established that associational co nditions do not extend to casual or chance meetings. See, e.g., Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per cur iam) (interpreting an associational condition to exclude certain casual encounters); Birzon v. King, 469 F .2d 1241, 1243 (2d Cir. 1972) (same); Cohen, supra,S 9.11, at 9-19 (observing that associational conditions are fr equ ently challenged, but that courts routinely uphold them a nd interpret them not to apply to chance meetings). We also so interpret them. Certainly accidental or unavoidable contact with minors in public places is not forbidden by th e condition; however, should Loy deliberately seek ou t such contacts, they would cease to be "casual" or"unavoi dable" and would fall within the condition's scope. Thus, in accordance with the long line of similar cases, we believe that the condition restricting Loy's contact with m inors is not unconstitutionally vague.

Loy also submits that the record does not support t he District Court's finding that his wife is also inte rested in child pornography. Consequently, he ar gues, the co urt erroneously structured the condition to pr ohibit h im from having otherwise unsupervised contact with minor ch ildren even if his wife is present. The court explained it s order that Loy must be chaperoned by someone other than h is wife when in the presence of minors as justified by the fact that "[e]vidence presented to this Court prior to d efendant's sentencing indicated that defendant's wife also has an interest in child pornography." This led the court to require

that "an adult other than defendant's wife must be present when defendant is in the presence of a minor ." Alt hough

the evidence on which the court based its decision is fairly tenuous for such a severe restriction, especially c onsidering its impact on a third party who has not been charge d with

29any crime, given our deference to the District Cour t in

factual matters, it is sufficient.9

Loy's final challenge to the condition is that, alt hough he does not currently have children, the condition cou ld potentially extend to any children he and his wife may subsequently have once he is released fr om prison. If so, the condition might deter him from exer cising his constitutional right to procreation, see Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and, should he have children to whom the condition applies, it would in terfere with his fundamental right to familial integrity, s ee Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir . 2000).

It is well established that, although parents have a fundamental right to raise their children, this rig ht can be overridden by the state's "compelling inter est" in ensuring children's safety. See Croft v. W estmoreland Count y Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Thus, convicted pedophiles may, quite legitimately, lose custody of their children or have restrictions placed on their parental rights. However, where there is insufficient eviden ce to support a finding that children are potentially in danger from their parents, the state's inter est cannot be said to be "compelling," and thus interference in the family relationship is unconstitutional. See id. at 1126.

Loy, after approximately nine years of marriage, is childless; his term of supervised release will last only three years. At most, any children he might have upon his release would be two years old by the time the term ended. There is certainly a legitimate question as to whet her the

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9. The only evidence that Loy's wife is inter ested in child pornography

is that, in his reply to the fake advertisement run by the police, Loy responded as "Ray and Maria" and used the word "we" to describe the interest in child pornography. However , the transc ription of his telephone call with the government agent suggests t hat Ray did not let his wife know about his proclivities: "Umm, you kno w she really don't know too much about the very young stuff I got. I m ean you know she kinda likes the, the couples and solo girls and stu f f. . . . But, like I said, I kinda keep the actual really young stuf f from he r because I don't know

how she'd handle that. I don't know if she'd fr eak out or not. . . . I keep that definitely hidden."

30record would support a finding that Loy represents a threat

to an infant child of his own. But it is unnecessar y to decide this question, because we believe it unlikel y that the

District Court intended its condition to extend so far. Given the severe intrusion on Loy's family life that woul d otherwise result, we believe that, absent a clearer sign from the District Court, the condition should be constru ed to apply only to other people's children, and not to L oy's own. If, at some later date, the District Court should c ome to believe that it is necessary for the protection of the public or for Loy's rehabilitation to extend the condition to Loy's own children, it may consider modifications to the condition in accordance with 18 U.S.C. S 3583(e); the constitutionality of the restriction can likewise b e reviewed at that time. We therefore r eject the government's suggestion that the condition receive a br oad cons truction now, placing the burden on Loy to petition for a

modification should he and his wife have childr en before the term of supervised release ends.

V. Conclusion

For the foregoing reasons, we will affir m the cond ition restricting Loy's contact with minors, but will vac ate the condition prohibiting Loy from possessing pornograp hy, and remand to the District Court for further pr oce edings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

31