Background

• Butt was convicted of two counts of dealing harmful materials to a minor based on two jail-letter drawings to his five-year-old daughter.
• The first drawing depicted him nude with exposed genitals; the second drawing depicted nudity and a potentially suggestive scenario involving his daughter.
• Butt’s trial defense did not include an independent First Amendment free-speech defense or a parent-child communication defense.
• The district court vacated the first-drawing conviction and denied post-conviction relief on the remaining drawing, finding no prejudice from trial counsel’s performance.
• On appeal, the Utah Supreme Court reversed, holding trial counsel’s performance was deficient for not raising a First Amendment defense and that defense would likely have succeeded; the court then vacated the second conviction and declined to reach other claims.
• The opinion concludes the drawings did not appeal to the minor’s prurient interest as a matter of independent review, but nonetheless vacates the conviction based on the First Amendment defense.

Issues

Key Cases Cited

• Miller v. California, 413 U.S. 15 (U.S. (1973)) (establishes the prurient-interest framework for obscenity as to adults (and its application to minors))
• Roth v. United States, 354 U.S. 476 (U.S. (1957)) (obscenity outside First Amendment protection; concept of prurient interest)
• Ginsberg v. New York, 390 U.S. 629 (U.S. (1968)) (allows state adjustment of obscenity as to minors based on minors’ interests)
• Erznoznik v. City of Jacksonville, 422 U.S. 205 (U.S. (1975)) (clarifies minor-focused obsenity standards and capacity for arousal)
• Mishkin v. New York, 383 U.S. 502 (U.S. (1966)) (identifies intended/recipient-based assessment of prurient interest)
• Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (U.S. (1985)) (defines prurient interest as shameful or morbid)
• City of St. George v. Turner, 860 P.2d 929 (Utah 1993) (supports independent review of First Amendment defenses in obscenity cases)