The Volokh Conspiracy
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I'm delighted to report that the Utah Supreme Court has just handed down an opinion in Butt v. State, reversing an obscenity-as-to-minors conviction that Utah lawyers Troy Booher and Beth Kennedy (many thanks to them!) and I challenged.
The Utah Supreme Court had upheld the conviction when it was first appealed, and I challenged that in a petition for review to the U.S. Supreme Court. But the state argued that the First Amendment arguments weren't properly made at trial and on initial appeal; and, after calling for a copy of the record, the U.S. Supreme Court denied our petition. We then filed a state post-conviction challenge, arguing that, if the First Amendment argument was indeed not properly made, that was ineffective assistance of counsel.
And today, the Utah Supreme Court agreed, holding that the material in the case was actually protected by the First Amendment. (In this case, the ineffective assistance of counsel issue ended up turning on this substantive First Amendment question.) First, the facts (you can see more details in our cert. petition):
Petitioner was convicted of two counts of dealing harmful materials to a minor. The counts relate to two letters Petitioner sent to his family from jail while awaiting sentencing for theft. While processing Petitioner's first letter for mailing, a jail guard noticed a drawing that concerned him. And he held the letter for review by his jail commander.
The letter included handwritten notes to Petitioner's wife and five-year-old daughter. Petitioner wrote to his daughter: "Well I know you want me to draw my whole body, but I can't draw very good, so this will have to work." The drawing was an unskilled, hand drawn picture portraying Petitioner naked. While the drawing was rough, it depicted Petitioner's nipples, chest hair, pubic hair, penis, and testicles.
Three days later, without knowledge that his first letter had been intercepted, Petitioner wrote a second letter. This letter was also intercepted. In this letter, Petitioner again wrote a short note to his daughter: "Hi beautiful girl. I miss you so much. I can't wait to bite your butt cheek. This is what it will look like. I love you."
Below this note, Petitioner had again roughly sketched a picture of himself naked. This picture was even more rudimentary than the initial drawing. But it portrayed Petitioner's nipples, penis, and testicles. This time, however, he was holding his daughter up with her bottom next to his mouth. A speech bubble from his mouth read: "Oh your butt taste [sic] so good." And a second speech bubble from his daughter's mouth read: "Oouch! Daddy don't Bite so hard Giggle giggle."
At trial, Petitioner attempted to justify the contents of the first drawing. He testified that prior to his incarceration he had watched a documentary about cave dwellings with his daughter, with cave drawings depicting naked people. Petitioner testified that his daughter had laughed and asked him to draw a picture of himself naked like the cave drawings.
With respect to the second drawing, Petitioner testified that his daughter likes being tickled. So as part of her bedtime routine he holds his daughter's hands up in the air and nibbles all over her stomach, while she laughs. To escape the tickling, his daughter rolls over from her back to her stomach. At this point, Petitioner teases her, saying "roll back over or I'm going to bite your butt cheek," to which his daughter responds by rolling back over. Petitioner testified that he does not remember ever actually biting his daughter during the routine. Rather, he makes an empty threat so that his daughter will roll back over. Despite Petitioner's explanation, the jury returned a guilty verdict on both counts.
When we challenged the convictions in state court, the state agreed that the conviction related to the first drawing should be vacated; and it "conceded that trial counsel's performance was deficient in failing to raise an independent First Amendment defense," but argued that the defendant hadn't been harmed by this error as to the second drawing because the First Amendment defense would have in any event failed. Today, the court held that the First Amendment did protect the second drawing, because it did not appeal to a "prurient interest in sex," and thus did not fall within the First Amendment exception for speech that is "obscene as to minors":
[T]he drawing at issue is so rudimentary that taken as a whole - including the context of Petitioner's unrebutted testimony about his routine with his daughter - it does not depict a sexual act. And we likewise conclude that the drawing is not sexually suggestive.
An appeal to the prurient interest in sex of a five-year-old is not a particularly high bar. A prurient interest in sex is one that is a "shameful or morbid." And in the context of obscenity as to minors, this assessment is judged in light of the minor's age. While a five-year-old likely does not experience sexual arousal, material can still generate a desire to engage in sexual relations. Whether that desire stems from curiosity, conditioning, or otherwise, it may cross the prurient interest line.
Perhaps it could be said that a five-year-old's present desire to engage in any form of sexual activity is prurient. At a minimum, however, it can be said that this standard is met with respect to material that is aimed at appealing to a young child's interest in engaging in sexual activity with a parent (or any adult); such activity is criminal, and thus easily deemed "shameful or morbid." …
If we viewed the drawing as depicting sexual conduct between Petitioner and his daughter we would have little difficulty agreeing with the State [that the drawing appealed to a prurient interest in sex]. But on balance, and in light of the context given to the drawing by the only testimony on the matter presented at trial, we view the drawing differently. We do not view the drawing as portraying a sexual act.
Although the drawing clearly depicts Petitioner naked, it is unclear whether it shows him biting his daughter or simply holding her in the air and joking about doing so. It is equally unclear whether his daughter is clothed or naked. Importantly, moreover, there is no context in the record to support the State's inferences that sexual conduct is in fact being portrayed.
We likewise conclude that the intended audience, Petitioner's daughter, would not have perceived the drawings as sexually suggestive. Context is particularly important in this area. And the only contextual evidence in the record is Petitioner's own testimony regarding the cave drawing television program and his bedtime routine with his daughter. We have little way of knowing whether Petitioner's testimony was truthful. Perhaps the State is right to be skeptical about the explanation offered by Petitioner. But the problem is that we have no contrary evidence before us - no indication on the record to give a different context to the drawing, and no basis for the conclusion that Petitioner's explanation was fabricated. We give little weight to Petitioner's story. But we do give it some weight, which together with his daughter's young age leads us to conclude that Petitioner's daughter would not have seen the drawing as sexually suggestive.
We conclude that the drawing is not sexual or sexually suggestive, and accordingly does not appeal to a prurient interest in sex. [Footnote: We caution that this is a close case. We conclude that on the record before us, Petitioner's drawing was so rudimentary that taken as a whole it would not have appealed to any sexual interest of Petitioner's daughter. But context matters. And a contrary decision might be merited in a case involving additional facts evidencing double entendre, an older child more perceptive of sexual suggestion, a context where the intended recipient might perceive a sexual meaning, or a more explicit drawing.]
One important procedural takeaway: The same Utah Supreme Court unanimously upheld the conviction initially, and then unanimously reversed it on appeal, even though three of the five Justices on the court heard both cases.
The difference, I think, is that, in 2012, the court deferred to the jury's application of the obscenity-as-to-minors test, presumably because the court saw this as simply a state-law case rather than a First Amendment case. But now, when it applied the First Amendment analysis, it had to apply "independent review of the record to judge the merits of a First Amendment defense in an obscenity action, yielding no deference to the jury's verdict or the district court's conclusions on underlying mixed questions of law and fact." (Such independent review is required by the U.S. Supreme Court's First Amendment caselaw.)
So, law students and lawyers: Remember how important such standards of review can be, and remember the procedural value of raising a substantive First Amendment defense in cases involving speech crimes or speech torts.
Thanks again to Troy Booher and Beth Kennedy for all their help with the case, and to John Hurst, Freyja Johnson, Clemens Landau and Michael Teter and my colleagues Iman Anabtawi, Jason Oh and Seana Shiffrin for sitting on my moot courts for the oral argument.