Can crude drawings to a young child be protected First Amendment speech? Butt v. State Explained

The Utah Supreme Court addressed the intersection of First Amendment protections and obscenity law in Butt v. State, reversing a conviction for dealing harmful materials to a minor based on ineffective assistance of counsel.

Background and Facts

Eric Butt was convicted for sending letters from jail to his five-year-old daughter containing crude nude drawings of himself. The first drawing depicted Butt naked after his daughter allegedly asked him to draw himself like cave drawings they had seen on television. The second drawing showed him naked, appearing to bite his daughter’s bottom, with speech bubbles referencing their bedtime routine. Butt testified that he would playfully threaten to bite his daughter’s bottom during tickling games to get her to roll over. The jury convicted him on both counts despite his explanations.

Key Legal Issues

Butt filed a post-conviction petition claiming ineffective assistance of counsel for failing to raise a First Amendment defense. The central question was whether the drawings constituted obscenity as to minors by appealing to a prurient interest in sex of his five-year-old daughter. The state conceded that counsel’s performance was deficient but argued Butt suffered no prejudice because the First Amendment defense lacked merit.

Court’s Analysis and Holding

The court conducted independent review of the First Amendment defense, yielding no deference to the jury’s verdict or district court’s conclusions. The court rejected Butt’s argument that material cannot appeal to a minor’s prurient interest if the child lacks capacity for sexual arousal, noting this would preclude states from protecting vulnerable children from sexually explicit materials. However, applying the prurient interest test, the court found the crude drawings, in context of Butt’s unrebutted testimony about innocent family routines, did not depict sexual acts or appeal to any sexual interest of his young daughter.

Practice Implications

This decision demonstrates the importance of raising constitutional defenses in obscenity cases, particularly those involving very young children. The court’s independent review standard for First Amendment defenses provides an additional avenue for challenging obscenity convictions on appeal. However, the court cautioned this was a close case, noting different facts involving older children, more explicit drawings, or evidence of sexual double entendre might yield different results.