2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-4-2001

United States v. Loy

Precedential or Non-Precedential:

Docket 99-3827

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Recommended Citation

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http://digitalcommons.law.villanova.edu/thirdcircuit_2001/2
Filed 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 of 

supervised release, subject to several special conditions, 

two of which are at issue in this appeal. Thefirst condition 

prohibits Loy from possessing "all for ms of pornography, 

including legal adult pornography." The second condition 

bars Loy from having unsupervised contact with minor 

children, and further specifies that the r equisite

supervision must come from someone other than his wife. 

Loy challenges these conditions, arguing that the 

pornography condition is vague and overbr oad, and that 

the condition restricting contact with minors is not 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 ocreation 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 attempt has 

been made to enforce its terms. W e disagree, holding that 

the challenge is properly made at this time. W e therefore 

turn to the merits of Loy's arguments, and conclude that 

the prohibition on pornography is unconstitutionally vague 

because it fails to provide any method for Loy or his 

probation officer to distinguish between those items 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. Therefore, we 

vacate this condition and remand to the District Court so 

that it may, if it so chooses, impose a new condition in 

accordance with the standards we set forth. 

As for the restriction on contact with minors, we 

conclude that, although the condition might ar guably 

extend to Loy's own (infant) children should he sire any 

upon his release from prison and befor e the three-year term 

of supervised release ends, given the lack of evidence to 

suggest that such an unlikely interpretation was intended 

by the District Court (and the constitutional questions that 

such an interpretation would raise), we will construe this 

condition not to extend to any children that Loy might 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 occur in 

public arenas. So construed, we uphold the condition as 

written and find that it comports with statutory and 

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 elease. The 

following facts are taken largely verbatim from our decision 

in Loy's first appeal. See United States v. Loy, 191 F.3d 

360, 362-64 (3d Cir. 1999). Of course, we have 

supplemented our previous factual discussion as necessary 

to reflect developments that have occurr ed in the interim. 

In 1997, the United States Postal Inspection Service and 

the Pennsylvania State Attorney General's Office conducted 

a joint undercover child pornography investigation. As part 

of that investigation, Special Agent Dave Guzy of the 

Attorney General's Office placed an advertisement in a 

sexually explicit magazine that, in a roundabout way, 

invited readers to trade pornographic materials involving 

children. The advertisement directed inter ested parties to 

respond in writing to Postal Inspector Thomas Kochman, 

 3 
although 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 Loy 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 conversation, Loy 

gave detailed descriptions of some of the tapes in his 

collection, and told Guzy that he could "put together" tapes 

for trading. He also represented that he traded with many 

people and offered to give Guzy their names. Loy described 

how he had produced videos by hiding a camcor der in his 

bag and filming up the skirts of young girls as they rode the 

escalators at a mall, and, in the course of the conversation, 

Loy specified that he was interested in r eceiving material 

involving girls ranging from age eight to age thirteen. He 

specifically requested that Guzy send him a tape of girls 

between the ages of eight and ten in a bathtub ("Bath Time 

video"), which Guzy agreed to do. On April 28, 1997, 

Kochman received a letter from Loy bearing the return 

address of R. Loy, P.O. Box 114, Langeloth, Pennsylvania 

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 video 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 his 

residence with the package in his possession. Clinton then 

executed a previously obtained search warrant, seizing 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 to trade 

such materials. 

 4 
In 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) containing 

visual depictions; (3) produced using materials transported 

in interstate and foreign commerce; (4) if production of the 

materials involved the use of minors engaging in sexually 

explicit conduct. See 18 U.S.C.A. S 2252(a)(4)(B) (West 

1997). Prior to entering his plea, Loy had challenged the 

S 2252(a)(4)(B) count by filing a motion to suppress the 

evidence on which it was based. The District Court denied 

the motion, and Loy then entered a conditional guilty plea 

on the S 2252(a)(4)(B) count that preserved his right 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 conditions 

on Loy's supervised release, requiring him, inter alia, to 

undergo testing and treatment for drug and alcohol abuse, 

prohibiting him from having unsupervised contact with 

minors, and forbidding him from possessing por nography of 

any type. Loy objected to these special conditions, arguing 

that they were not supported by the recor d and that they 

violated his fundamental rights. In the first appeal, we 

upheld the denial of Loy's motion to suppress and the 

condition requiring drug testing, but r emanded the case to 

the District Court to state its reasons why the remaining 

conditions had been imposed. See Loy, 191 F .3d at 369-71. 

Following remand, the District Court enter ed an order 

amending Loy's sentence to eliminate the condition that he 

undergo testing and treatment for alcohol abuse while 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 contact with 

minors, adding the further requirement that any 

supervision must come from someone other than his wife. 

In reimposing these conditions, the court explained that 

because "it is sometimes impossible to dif ferentiate between 

children and adults in pornographic materials," the former 

 5 
condition was necessary to protect childr en who are 

victimized in child pornography as well as to deter Loy from 

further criminal conduct or from attempting to obtain 

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 eate 

"sexually explicit depictions of children." Loy now appeals 

for a second time, from an amended judgment of sentence 

entered in the District Court for the W estern District of 

Pennsylvania. The District Court had jurisdiction pursuant 

to 18 U.S.C. S 3231, which grants the district courts 

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 discretion. See 

United States v. Loy, 191 F.3d 360, 370 n.7 (3d Cir. 1999) 

(citing United States v. Crandon, 173 F .3d 122, 127 (3d 

Cir.), cert. denied, 120 S. Ct. 138 (1999)). A condition is 

within the court's discretion if two criteria are met. First, 

the condition must be reasonably related to the factors set 

forth in 18 U.S.C. S 3553(a)(1) & (2)(B)-(D). Accordingly, in 

imposing conditions of supervised release, the sentencing 

court may consider: (1) the nature and cir cumstances of 

the offense and the history and characteristics of the 

defendant; and (2) the need for the condition to deter future 

criminal conduct, protect the public, and pr ovide the 

defendant with necessary training, medical car e, or 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 deprivation 

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 deterring [the 

defendant] and protecting the public." Crandon, 173 F.3d at 

128. 

 6 
III. 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 challenge to 

the pornography proscription is not justiciable. The 

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 prisoner'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 any 

number of events may occur that would make the condition 

irrelevant"), the government explains that, inter alia, an 

incarcerated prisoner may no longer have the same interest 

in engaging in the prohibited activity upon r elease from 

prison, and further, that vagueness challenges to conditions 

of supervised release are prematur e until those conditions 

have been interpreted by a probation officer. The 

government now asks that, "[a]s a matter of judicial policy," 

we refrain from entertaining due pr ocess challenges to 

conditions of supervised release prior to a violation of those 

conditions. Although the government avoids the words, it 

essentially asks us to hold that Loy's challenge fails to meet 

the prudential aspects of ripeness. 

Additionally, in recommending that we adopt a judicial 

policy of refusing to hear due process challenges to 

unenforced conditions of release, the government also relies 

on the standing requirements typically necessary to mount 

vagueness challenges to statutes that do not infringe 

constitutionally protected rights. Thus, citing Parker v. 

Levy, 417 U.S. 733 (1974), the government has argued 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 before he will 

be able to raise his claim. We will addr ess each of these 

arguments in turn, ultimately holding that Loy's claim is 

not only justiciable, but, in fact, consideration at this time 

promotes judicial efficiency and is in keeping with the 

 7 
demonstrated congressional intent that sentences be

reviewed on direct appeal. 

1. Ripeness 

In United States v. Stine, 646 F.2d 839 (3d Cir. 1981), 

this Court held that a defendant who failed to appeal a 

probation condition at the time it was enter ed against him 

was barred from lodging a facial attack on the condition as 

a defense in a revocation proceeding. See id. at 846-47. In 

so doing, we observed that "the federal courts have

uniformly permitted defendants sentenced to probation to 

challenge the validity of their probation conditions on direct 

appeal." Id. at 846 n.16. In United States v. Ofchinick, 937 

F.2d 892 (3d Cir. 1991), we reaffirmed Stine, holding that a 

challenge to a condition of supervised release mounted 

immediately after the sentence met the Article III test for 

ripeness. Our holding in Ofchinick was based in part on the 

fact that, if the defendant waited until revocation

proceedings to challenge the condition, he would likely be 

found to have waived his right to object. See id. at 897. In 

that case, we characterized as "illogic[al]" the government's 

position that a probationer must risk incar ceration in order 

to challenge a condition. See id. at 897 n.5. 

Although helpful in guiding our approach to the issue, 

these cases do not explicitly address the "prudential" 

ripeness doctrine. That doctrine is intended to"prevent the 

courts . . . from entangling themselves in abstract

disagreements over administrative policies, and also to 

protect the agencies from judicial inter ference until an 

administrative decision has been formalized and its effects 

felt in a concrete way." Abbott Labs. v. Gardner, 387 U.S. 

136, 148 (1967). In determining whether a claim is ripe, a 

court must look at: (1) "the hardship to the parties of 

withholding court consideration"; and (2) thefitness of the 

legal issue for judicial review. Id. at 149; see also Artway v. 

Attorney General of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996). 

In view of the government's contentions, we analyze this 

case in terms of these elements of the prudential ripeness 

doctrine. 

 8 
a. Hardship to Parties 

The essence of Loy's claim is that not knowing the scope 

of the pornography proscription is, in itself, a hardship. He 

argues that because of the vagueness, he will not know 

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 Welfare 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 under a 

potentially illegal regulation is, in itself, a hardship. In so 

doing, we opined that an argument to the contrary would 

be 

 like saying that an increase in the inter est rate charged 

 for late payments on a credit card pr esents no 

 hardship to the customer because the customer 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 customer will 

 have to change his behavior at the time he is 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 contingent future 

 charge does not preclude it from causing harm 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 permitted to 

challenge his conditions of release is at odds with the 

Supreme Court's pronouncement in Stef fel v. Thompson, 

415 U.S. 452 (1974), where the Court stated that "it is not 

necessary that petitioner first expose himself to actual 

arrest or prosecution to be entitled to challenge a statute 

that he claims deters the exercise of his constitutional 

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 

 9 
the question presented. Therefore, we will examine 

"whether or not the question is purely legal and easy to 

resolve." Pennsylvania Dep't of Pub. W elfare v. United States 

Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996). 

As we have said, "[t]he more that the question presented is 

purely one of law, and the less that additional facts 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: whether 

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 between 

now and the time when he is released fr om prison. The 

government would prefer that we addr ess Loy's challenge in 

the context of a particular magazine or other publication 

(an argument that has the perverse quality of asking 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 determine 

whether or not the particular publication at issue fell within 

the condition, it would not in any way assist in the 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 under 

continual threat of reimprisonment, in sequential hearings 

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 the 

prudential ripeness inquiry. See Abbott Labs. v. Gardner, 

387 U.S. 136, 139-40 (1967). The legislative history of the 

Sentencing Reform Act of 1984 evidences Congr ess's

intention that direct appellate review be the preferred 

method of reviewing a district court's sentence. See S. Rep. 

No. 98-225, at 151 (1984), reprinted in 1984 U.S.C.C.A.N. 

 10 
3182, 3334 (noting, in the context of a discussion of 

procedures for direct appellate r eview of sentences, that 

"most Western nations . . . consider review at the behest of 

either the defendant or the public to be a fundamental 

precept of a rational sentencing system, and the Committee 

considers it to be a critical part of the foundation for the 

bill's sentencing structure"); id. at 154, reprinted in 1984 

U.S.C.C.A.N. at 3337 ("The Committee intends that a

sentence be subject to modification through the appellate 

process. . . ."). Section 3742 of Title 18 of the United States 

Code, which allows for appellate review of sentences, was 

added in 1984 as part of the congressional scheme to 

ensure greater uniformity in sentencing. See S. Rep. No. 

98-225, at 150, reprinted in 1984 U.S.C.C.A.N. at 3333. 

This change from the previous regime, which provided for 

no such review, demonstrates the extent to which Congress 

felt that the appellate process was an integral part of the 

formulation of the sentence. Cf. id. at 151, reprinted in 

1984 U.S.C.C.A.N. at 3334 ("Appellate review of sentences 

is essential to assure that the guidelines ar e applied 

properly and to provide case law development of the

appropriate reasons for sentencing outside the guidelines. 

This, in turn, will assist the Sentencing Commission in 

refining the sentencing guidelines. . . ."). Thus, the 

legislative history of the current sentencing scheme 

demonstrates Congress's intention that appellate courts 

consider the legality of conditions of supervised r elease at 

the time of their imposition, rather than only in the 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 that "[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 Loy 

cannot be heard until the condition has been applied to his 

specific conduct. However, there ar e crucial differences 

between the context in which Loy presents his challenge 

and the contexts in which the traditional standing 

requirements for vagueness challenges wer e developed. 

 11 
A typical vagueness challenge is brought as a defense to 

a criminal charge, and can only be raised by a defendant 

whose own conduct arguably did not fall within the terms 

of the statute, thus allowing the defendant to claim that the 

lack of fair notice led to a deprivation of liberty without due 

process of law. See, e.g., United States v. National 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 understand that 

his contemplated conduct is proscribed. In determining the 

sufficiency of the notice a statute must of necessity be 

examined in light of the conduct with which a defendant is 

charged." (citations omitted)). A defendant whose conduct is 

at the "core" of the activities clearly covered by the statute's 

terms may only raise a vagueness defense if the statute is 

one that is likely to chill the exercise of constitutionally 

protected conduct. See United States v. Mazurie, 419 U.S. 

544, 550 (1975) ("It is well established that vagueness 

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 depending on 

the nature of the statute or rule under attack. 2 

As a convicted felon sentenced to a term of supervised 

release, Loy's constitutional rights do not have the same 

_________________________________________________________________ 

1. See also Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (holding 

that facial vagueness challenges are per missible where "a law reaches a 

substantial amount of constitutionally protected conduct" (citation 

omitted)); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 

489, 494-95 (1982) (noting that, if a statute "implicates no 

constitutionally protected conduct," a pr eenforcement challenge can 

succeed on vagueness grounds only if the statute is "impermissibly 

vague in all of its applications"); Young v. American Mini Theatres, Inc., 

427 U.S. 50, 59-60 (1976) ("[I]f the statute's deterrent effect on 

legitimate 

expression" is "real and substantial," parties may challenge the statute 

"even though there is no uncertainty about the impact . . . on their own 

rights."). 

2. When a statute is vague and arguably involves protected conduct, 

vagueness analysis will necessarily intertwine with overbreadth analysis. 

See Hoffman Estates, 455 U.S. at 494 n.6 ("[A] court should evaluate the 

ambiguous as well as the unambiguous scope of the enactment. To this 

extent, the vagueness of a law affects overbr eadth analysis."). 

 12 
scope as those of ordinary persons. See United States v. 

Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Cir. 

1975) (observing that "probationers, like parolees and 

prisoners, properly are subject to limitations from which 

ordinary persons are free" and that "[m]erely because a 

convicted individual's fundamental rights ar e involved 

should not make a probation condition . . . automatically 

suspect"). In evaluating constitutional challenges to 

probation conditions, we have upheld conditions that are 

"directly related to deterring [the offender] and protecting 

the public," even when First Amendment inter ests are at 

stake. United States v. Crandon, 173 F .3d 122, 128 (3d 

Cir.), cert. denied, 120 S. Ct. 138 (1999). The government, 

asserting that in the context of supervised r elease there is 

no "protected" conduct to chill, asks us to apply the more 

stringent standing rules to Loy's vagueness and 

overbreadth challenge, requiring him either to mount his 

challenge in the context of a particular purported violation 

so that we can assess whether the condition is vague or 

overbroad with respect to that violation, or, presumably, to 

demonstrate that the condition is vague in all of its 

applications. But the government fails to r ecognize there 

are important differences between a probationer on 

supervised release and a member of the general public 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 rights" 

normally available in a criminal proceeding. Morrissey v. 

Brewer, 408 U.S. 471, 480 (1972). For instance, defendants 

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 condition has 

been violated); a greater range of evidence that may be 

admissible against them, see United States v. Bazzano, 712 

F.2d 826, 829 (3d Cir. 1983) (en banc) (per curiam) (no 

exclusionary rule in revocation proceedings); United States 

v. McCallum, 677 F.2d 1024, 1026 (4th Cir . 1982) 

(permitting hearsay evidence in revocation proceedings); 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. 1996). The 

 13 
fewer procedural protections available at a revocation 

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 their 

violations--these conditions are, after all, special "laws" 

tailored only to them. Loy, as a felon on supervised 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 that might 

never be applied to his conduct. Cf. Poe v. Ullman, 367 U.S. 

497, 501 (1961) (plurality opinion) (refusing to entertain, on 

prudential justiciability grounds, a challenge to 

Connecticut's ban on the use of contraceptives, observing 

that "[d]uring the more than thr ee-quarters of a century 

since [the law's] enactment, a prosecution for its violation 

seems never to have been initiated" except in a single 

instance). 

Further, because the condition is unique to Loy, there is 

no likelihood of a general groundswell of support for a 

change in the "law." Therefore, limits on standing that have 

been advanced in cases like United States v. Richardson, 

418 U.S. 166, 175 (1974) (no "taxpayer standing" to

challenge a statute mandating that CIA expenditur es be 

kept secret), on the ground that "generalized grievances" 

are more appropriately addressed through the political 

process, are inapplicable to challenges to conditions of 

supervised release. And because the condition is applicable 

only to Loy, there is no chance that an "enforcement policy" 

will provide guidance as to the condition's contours. 

Hoffman Estates, 455 U.S. at 502. 

On a broader level, it should be remember ed that all of 

the justiciability doctrines--standing, ripeness, and 

mootness--stem in part from a desire to allow the other 

branches of government to engage in their nor mal process 

of lawmaking before invoking the judicial power to stop 

such efforts in their tracks. For instance, in Abbott 

Laboratories v. Gardner, 387 U.S. 136 (1967), the Supreme 

Court explained that the ripeness doctrine in part serves to 

"protect the agencies from judicial interference until an 

 14 
administrative decision has been formalized." Id. at 148. 

Similarly, in Lujan v. Defenders of Wildlife, 504 U.S. 555 

(1992), the Court held that the citizen-suit pr ovisions of the 

Endangered Species Act, which conferred standing on "any 

person" to sue United States instrumentalities to force 

compliance with the Act, represented an unconstitutional 

attempt by Congress to breach the separation of powers by 

policing the activities of the Executive branch. See id. at 

576-77; see also Poe, 367 U.S. at 503 ("In part [the 

justiciability rules] derive from the fundamental federal and 

tripartite character of our National Government and from 

the role--restricted by its very r esponsibility--of 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 protection 

is accorded other divisions of government when we stay our 

hand; in fact, by doing so, we actively impede the proper 

process of lawmaking. Congress has entrusted the 

responsibility for formulating appr opriate conditions 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, judicial review 

of criminal sentences is an integral part of the pr ocess of 

creating these individual "laws," and just as legislation is 

only enacted pursuant to bicameralism and pr esentment, 

see INS v. Chadha, 462 U.S. 919, 954-55 (1983), so too 

criminal sentences are formulated in part through the 

appellate process. To refuse to r eview such a condition 

would be to impede this process of judicial lawmaking. 

3. Judicial Efficiency 

Our position also promotes judicial efficiency. See, e.g., 

Allstate Ins. Co. v. Wayne County, 760 F .2d 689, 696 (6th 

Cir. 1985) (holding that the ripeness inquiry includes 

considerations of judicial economy); Independent Bankers 

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 Court. We 

review these conditions all the time, and, as a prudential 

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

last year, we reviewed the conditions of a supervised release 

in United States v. Crandon, 173 F.3d 122, 128 (3d Cir.), 

cert. denied, 120 S. Ct. 138 (1999), and upheld a condition 

prohibiting the defendant access to the inter net after he 

was convicted of receiving child pornography. The 

government's approach merely ensur es multiple 

adjudications as defendants appeal parts of their sentences 

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 "piecemeal 

review" and to ensure judicial efficiency). 

4. Summary 

Thus, (1) we have "case or controversy" jurisdiction; (2) 

the issues are legal ones that we can easily r esolve 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 these sorts 

of challenges are inapplicable in the context of supervised 

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 elease. 

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 possessing all 

forms of pornography, including legal adult pornography, in 

order to: (1) protect the children that are victimized in the 

production of child pornography; and (2) deter defendant 

from engaging in additional criminal conduct." Loy claims 

that the District Court's order is unconstitutionally vague, 

because "[t]he term `pornography' lacks a legal definition" 

and "fails to give Mr. Loy notice of which materials he may 

not possess." 

 16 
The constitutional requirement that laws be reasonably 

precise as to the scope of prohibited conduct serves three 

distinct purposes: 

 First, because we assume that man is free to steer 

 between lawful and unlawful conduct, we insist that 

 laws give the person of ordinary intelligence a 

 reasonable opportunity to know what is pr ohibited, so 

 that he may act accordingly. . . . Second, . . . [a] vague 

 law impermissibly delegates basic policy matters 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 the 

 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 or requires 

the doing of an act in terms so vague that men of common 

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 (7th Cir. 

1999) (citing Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 

1972)); LoFranco v. United States Parole Comm'n, 986 F. 

Supp. 796, 810-11 (S.D.N.Y. 1997). 

Courts have long grappled with the problem of generating 

definitions to facilitate the regulation of sexually explicit 

materials. In 1957, the Supreme Court held that"obscene" 

speech is beyond the coverage of the First Amendment. See 

Roth v. United States, 354 U.S. 476, 485 (1957). For years 

afterward, the Court struggled to find a definition of 

"obscenity," see, e.g., Memoirs v. Massachusetts, 383 U.S. 

413 (1966); Redrup v. New York, 386 U.S. 767 (1967); Kois 

v. Wisconsin, 408 U.S. 229 (1972) (per curiam), finally 

settling on the now-familiar Miller test, see Miller v. 

California, 413 U.S. 15 (1973). In or der for a work 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 

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

when taken as a whole, lack "serious literary, artistic, 

political, or scientific value." Id. at 24. "Sexually-oriented 

work is not obscene unless all three elements of the Miller 

test are satisfied." United States v. Various Articles of 

Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 

135 (2d Cir. 1983). 

The determination whether a particular work is"obscene" 

under the Miller test is an exacting inquiry. Though 

"community standards" are used to determine whether a 

work is patently offensive, see Smith v. United States, 431 

U.S. 291, 301 (1977), a "reasonable person" standard must 

be used to determine whether a work lacks serious merit, 

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 includes 

"material whose predominate appeal is to a shameful or 

morbid interest in nudity, sex, or excr etion," Brockett v. 

Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) (internal 

quotation marks omitted). "Sexual conduct" can include 

"lewd exhibition of the genitals," but a distinction must be 

made between exhibitions that are lewd and those that are 

not lewd, because "nudity alone is not enough to make 

material legally obscene." United States v. V arious Articles of 

Merchandise, Schedule No. 287, 230 F .3d 649, 657 (3d Cir. 

2000) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)).3 

And, as we recently held, the Miller test's protection for 

works of serious political value "is broad enough to 

encompass that which might tend to bring about `political 

and social changes.' " Various Articles of Merchandise, 230 

F.3d at 658 (holding that nudist magazines ar e not obscene 

because, inter alia, they "champion nudists' alternative 

lifestyle"). 

Many items that would almost certainly fall under the 

general rubric of "pornography" may not be captured by 

Miller's prongs. See, e.g., V arious Articles of Obscene 

_________________________________________________________________ 

3. Indeed, the panel concluded that the subjects of the nude 

photographs at issue in Various Articles of Merchandise were not "posed 

in a way `suggestive of moral looseness.' " Various Articles of 

Merchandise, 230 F.3d at 657. 

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

determination that the film Deep Thr oat was not patently 

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 American 

Booksellers Association, Inc. v. Hudnut, 771 F .2d 323 (7th 

Cir. 1985), the court examined a statute that specifically 

defined the term "pornography," noted the disjunction 

between what is "pornographic" and what is "obscene," and 

struck down, on First Amendment grounds, a pr ohibition 

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

As is demonstrated by the foregoing discussion, although 

the scope of the term "obscenity" has been exhaustively 

examined (and even the term "indecency" has been given a 

specific definition by the FCC, see FCC v. Pacifica Found., 

438 U.S. 726, 731-32 (1978)), the term "por nography," 

unmoored from any particular statute, has never received a 

precise legal definition from the Supr eme Court or any 

other federal court of appeals, and remains undefined in 

the federal code.4 The Supr eme Court in Miller used only a 

footnoted dictionary reference for its own definition. See 

Miller, 413 U.S. at 19 n.2 (defining por nography as "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 Webster's 

Third New International Dictionary (1969)). Further, in the 

context of Loy's supervised release, in or der to comport 

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 public. 

See Part II, supra. 

_________________________________________________________________ 

4. Although federal law contains a definition of child pornography, see 

18 U.S.C. S 2256, the release condition imposed here cannot be 

presumed to track that statute, as the condition explicitly prohibits 

"legal adult pornography." Further , the condition does not limit its 

reach 

to visual works, as does federal law. 

 19 
C. Discussion 

1. Pornography's Meaning 

The word pornography is derived fr om the Greek 

pornographos, which meant "writing of harlots." (Porne = 

harlot and graphos = writing). Accor ding to the Oxford 

English Dictionary (1986), pornography is defined as "1. . . . 

a description of prostitutes or of prostitution, as a matter of 

public hygiene. . . . 2. Description of the life, manners, etc., 

of prostitutes and their patrons; hence, the expression or 

suggestion of obscene or unchaste subjects in literature 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 or writing) 

intended to cause sexual excitement 2: material (as books 

or a photograph) that depicts erotic behavior and is 

intended to cause sexual excitement 3: the depiction of acts 

in a sensational manner so as to arouse a quick intense 

emotional reaction." The Funk & W agnalls New Standard 

Dictionary of the English Language (1941) defines 

pornography as "1. Description of pr ostitutes and of 

prostitution as related to public hygiene. 2. The expression 

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 Part III.B, 

supra. 

Though these various definitions are instructive in a 

general way, they clearly lack the greater pr ecision of the 

Miller test for obscenity. Unlike instances of obscenity, we 

could easily set forth numerous examples of books and 

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 , which 

features nudity but not sexual conduct. It is also difficult to 

gauge on which side of the line the film adaptations of 

Vladimir Nabokov's Lolita would fall, or if Edouard Manet's 

Le Dejeuner sur L'Herbe is pornographic (or even some of 

the Calvin Klein advertisements), and we certainly cannot 

know whether the pornography condition is r estricted only 

to visual materials, or whether it encompasses pur e text 

and sound recordings. In Farrell v. Burke, No. 97 CIV. 

 20 
5708(DAB), available in 1998 WL 751695 (S.D.N.Y. Oct. 28, 

1998), the district court described a situation in which a 

parole condition prohibiting "por nography" was interpreted 

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 scope 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 Ass'n v. 

Hudnut, 771 F.2d 323, 327 (7th Cir . 1985). Although the 

propriety of affixing the title "por nography" to any of these 

items could foster debate, the debate would r emain

undecided. Put differently, with r egard to "pornography" 

rather than "obscenity," we do not "know it when we see it." 

Additionally, as we observed in United States v. Crandon, 

173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138 

(1999), to avoid First Amendment infirmity, a probation 

condition must be "narrowly tailored" and "directly related" 

to the goals of protecting the public and pr omoting Loy's 

rehabilitation -- thus, the condition must not extend to all 

arguably pornographic materials, but only to those that fall 

into this subset. Even the government conceded in its 

supplemental brief that it does not know whether Playboy 

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 advance, which 

materials are prohibited, with no mor e than the 

constitutional standard of permissible r estrictions to guide 

him. Cf. Laurence H. Tribe, American Constitutional Law 

(2d ed. 1988) S 12-29, at 1031 ("[T]he Constitution does 

_________________________________________________________________ 

5. The government argues that a condition of supervised release is akin 

to a prison regulation, and thus, because por nography is routinely 

forbidden in prisons, such a restriction can be freely 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 wide range of things open 

to persons who have never been convicted of any crime. . . . Though the 

state properly subjects him to many restrictions not applicable to other 

citizens, his condition is very differ ent from that of confinement in a 

prison." Id. at 482. 

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

primary conduct, and . . . a law whose reach into protected 

spheres is limited only by the background assurance that 

unconstitutional applications will eventually be set aside is 

a law that will deter too much. . . .") (emphasis removed).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 threatens to 

chill protected conduct, as well. 

2. Effects of a Scienter Requir ement 

The government advances the intriguing ar gument that 

the condition could be interpreted so as to include a 

salvaging scienter requirement. But this cannot solve the 

problem. To begin with, although pr obation or parole will 

usually not be revoked for unknowing violations of 

conditions of release, unless a scienter r equirement 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 release can 

be revoked for reasons that have nothing to do with the 

"fault" of the offender, but instead are more related to 

protection of the public. See, e.g., United States v. Warner, 

830 F.2d 651, 657 (7th Cir. 1987) ("If . . . probation's 

purposes have been frustrated, revocation is fair and 

appropriate even if the probationer did not willfully violate 

_________________________________________________________________ 

6. In United States v. Schave, 186 F .3d 839 (7th Cir. 1999), the Seventh 

Circuit avoided a vagueness problem in a condition of supervised release 

that prohibited associations with white supr emacists 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 under the 

circumstances of that case, a similar construction would not save the 

condition here. The condition in Schave was not only more particular 

than Loy's (it prohibited associations with certain well-defined groups), 

but also was part of a long history of "associational" conditions that are 

so common that they have acquired something of a judicial gloss as to 

their scope. See Part IV, infra . 

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

F.2d 1076, 1078 (5th Cir. 1979) (per curiam) ("A good faith 

attempt to comply with a probation agreement is not a 

controlling factor, but only one of many factors that a 

District Court may consider in the exercise of its discretion 

to revoke probation."). 

Even if a scienter requirement wer e to be read into the 

condition, however, this construction would not save it. 

Though in some situations, a scienter requir ement may 

mitigate an otherwise vague statute, see, e.g ., Hoffman 

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 all 

purposes, see, e.g., Cramp v. Boar d of Pub. Instruction of 

Orange County, 368 U.S. 278, 286 (1961) (invalidating a 

loyalty oath on the ground that, notwithstanding the fact 

that the oath-taker was required only to affirm that 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. Farmer, 

220 F.3d 127, 138 (3d Cir. 2000) (holding that a scienter 

requirement cannot save a statute criminalizing "partialbirth abortion" where the definition of such a procedure is, 

in itself, vague); Nova Records, Inc. v. Sendak, 706 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 vague 

statutes by inserting the word "knowingly." See Richmond 

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 pr obation 

officer to gauge its applicability to a particular case. 

However, although there is no question that "[i]n addition to 

the bare words of the probation condition, the probationer 

may be guided by further . . . instructions . . . of the . . . 

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

407 (9th Cir. 1982), the sentencing court may not 

wholesaledly "abdicate[ ] its judicial r esponsibility" 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 sentencing 

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" cannot be 

cured by allowing the probation officer an unfettered power 

of interpretation, as this would create one of the very 

problems against which the vagueness doctrine is meant to 

protect, i.e., the delegation of "basic policy matters to 

policemen . . . for resolution on an ad hoc and subjective 

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 condition 

to be unconstitutionally vague because the pr ohibition on 

association with "outlaw motorcycle gangs" delegated 

policymaking power to the parole officer); cf. United States 

v. Kent, 209 F.3d 1073, 1079 (8th Cir . 2000) (invalidating 

a condition requiring probation officer to determine 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 discretion, there is 

a real danger that the prohibition on por nography may 

ultimately translate to a prohibition on whatever the 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 that 

though a city may forbid certain forms of antisocial 

conduct, "[i]t cannot constitutionally do so through . . . an 

ordinance whose violation may entirely depend upon 

whether or not a policeman is annoyed"). 

_________________________________________________________________ 

7. A similar condition was imposed in this case; however, Loy has not 

raised any challenges to it, and so we need not addr ess the question 

whether this court would follow the Eighth Cir cuit reasoning regarding 

the propriety of conditions that allow the pr obation officer to determine 

whether a defendant is in need of counseling. 

 24 
4. Conclusion 

To be sure, we are dealing her e with an unusually broad 

condition. We in no way mean to imply that courts may not 

impose restrictions on the consumption of sexually explicit 

materials by persons convicted of sex crimes. Indeed, we do 

not expect that our holding today will greatly diminish a 

district court's discretion in imposing such conditions for 

the simple reason that almost any r estriction upon sexually 

explicit material may well aid in rehabilitation and 

protection of the public. Only in the exceptional case, where 

a ban could apply to any art form that employs nudity, will 

a defendant's exercise of First Amendment rights be

unconstitutionally circumscribed or chilled. A probationary 

condition is not "narrowly tailored" if it restricts 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 reason the 

condition is not "narrowly tailored." 

Thus, in Loy's case, to the extent that the condition 

might apply to a wide swath of work ranging fr om serious 

art to ubiquitous advertising, the condition is overly broad 

and violates the First Amendment. To the extent that 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 access to 

sexually oriented materials, so long as that r estriction was 

set forth with sufficient clarity and with a nexus to the 

goals of supervised release. Further, the Constitution would 

not forbid a more tightly defined restriction on legal, adult 

pornography, perhaps one that clarified whether it extended 

non-visual materials, or that borrowed applicable language 

from the federal statutory definition of child pornography 

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

_________________________________________________________________ 

8. The federal statute reads: 

 "child pornography" means any visual depiction, including any 

 photograph, film, video, picture, or computer or computer-generated 

 image or picture, whether made or produced by electronic, 

 mechanical, or other means, of sexually explicit conduct, where-- 

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

prohibition as currently written violates due process 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 terms so 

vague that men of common intelligence must necessarily 

guess at its meaning and differ as to its application." 

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 easonably 

related" to the goals of deterrence, pr otection of the public, 

and rehabilitation of the defendant. 18 U.S.C.S 3583(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, supervised release 

conditions that affect constitutional rights will likely be 

valid if "narrowly tailored and . . . directly related to 

deterring [the offender] and protecting the public." United 

States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied, 

120 S. Ct. 138 (1999); see also United States v. Tolla, 781 

F.2d 29, 34 (2d Cir. 1986) ("[C]onditions that restrict a 

probationer's freedom must be especiallyfine-tuned."). 

Loy claims that there is insufficient evidence in the 

record to support the condition barring him from having 

_________________________________________________________________ 

 (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 engaging in sexually 

 explicit conduct; or 

 (D) such visual depiction is advertised, pr omoted, presented, 

 described, or distributed in such a manner that conveys the 

 impression that the material is or contains a visual depiction 

 of a minor engaging in sexually explicit conduct[.] 

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

 26 
any unsupervised contact with minors. He further contends 

that the condition is "not `reasonably r elated' to the 

statutory goals because no evidence was presented that [he] 

ever molested a child." Finally, Loy argues that the 

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 family. 

The District Court's findings in support of the condition 

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 while on 

 supervised release. Although defendant was convicted 

 of possession of child pornography and not of 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 child 

 pornographic materials, but also that the defendant 

 himself has been involved in making videos of 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 escalators at 

 a mall, as well as how he has "hidden" camera 

 videotapes that he made by videotaping through 

 windows. Regardless of whether or not these videos 

 constitute pornography, it is clear to this Court that 

 the defendant, given his interest in child por nography 

 and his efforts to make sexually explicit materials 

 involving children, poses a danger to childr en if left 

 alone with them. 

 Accordingly, the Court finds it appr opriate to prohibit 

 defendant from having unsupervised contact with 

 minors. The Court does not mean by imposition of this 

 condition to require that defendant's pr obation officer 

 or another law enforcement official be pr esent 

 whenever defendant is around minors. However , 

 defendant is not to be alone with minors, nor is he to 

 27 
 be alone with his wife and any minors. In other 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 defendant in 

 that defendant is not likely to attempt to make sexually 

 explicit depictions of them if another adult is pr esent; 

 and (2) deter defendant from engaging in criminal 

 conduct, also because defendant is not likely 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 indicated that 

defendant's wife also has an interest in child pornography." 

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 girls' 

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 motion 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 District 

Court was free to conclude that the self-serving statements 

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 evidence 

that he had secretly filmed up young girls' dresses on mall 

escalators, "that conduct would not be addr essed by the 

condition, because the conduct would not have taken place 

when Mr. Loy was alone with minors." The argument is 

wholly without merit. The fact that Loy was willing to 

exploit minors in public places fully supports a condition 

barring him from being alone with them in private. 

 28 
Loy 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; associational 

conditions placed upon parolees and probationers are 

commonplace and have frequently been challenged as 

overly broad or vague because they potentially extend 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 conditions do 

not extend to casual or chance meetings. See, e.g.,

Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam) 

(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 equently 

challenged, but that courts routinely uphold them and 

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 the 

condition; however, should Loy deliberately seek out such 

contacts, they would cease to be "casual" or"unavoidable" 

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 minors is 

not unconstitutionally vague. 

Loy also submits that the record does not support the 

District Court's finding that his wife is also interested in 

child pornography. Consequently, he ar gues, the court 

erroneously structured the condition to pr ohibit him from 

having otherwise unsupervised contact with minor children 

even if his wife is present. The court explained its order 

that Loy must be chaperoned by someone other than his 

wife when in the presence of minors as justified by the fact 

that "[e]vidence presented to this Court prior to defendant'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 ." Although 

the evidence on which the court based its decision is fairly 

tenuous for such a severe restriction, especially considering 

its impact on a third party who has not been charged with 

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any crime, given our deference to the District Court in 

factual matters, it is sufficient.9 

Loy's final challenge to the condition is that, although he 

does not currently have children, the condition could 

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 interfere 

with his fundamental right to familial integrity, see 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 right can be 

overridden by the state's "compelling inter est" in ensuring 

children's safety. See Croft v. W estmoreland County 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 evidence 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 whether the 

_________________________________________________________________ 

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 transcription of his 

telephone call with the government agent suggests that Ray did not let 

his wife know about his proclivities: "Umm, you know she really don't 

know too much about the very young stuff I got. I mean you know she 

kinda likes the, the couples and solo girls and stuf f. . . . But, like I 

said, 

I kinda keep the actual really young stuf f from her 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." 

 30 
record would support a finding that Loy represents a threat 

to an infant child of his own. But it is unnecessary to 

decide this question, because we believe it unlikely that the 

District Court intended its condition to extend so far. Given 

the severe intrusion on Loy's family life that would 

otherwise result, we believe that, absent a clearer sign from 

the District Court, the condition should be construed to 

apply only to other people's children, and not to Loy's own. 

If, at some later date, the District Court should come 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 be reviewed 

at that time. We therefore r eject the government's

suggestion that the condition receive a br oad construction 

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 condition 

restricting Loy's contact with minors, but will vacate the 

condition prohibiting Loy from possessing pornography, 

and remand to the District Court for further pr oceedings 

consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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