Petitions to Watch

I’m pleased to see that the Butt v. Utah petition, which I filed with the Supreme Court in September — and which will be considered by the Justices on January 4 — has made it to SCOTUSblog’s Petitions to Watch list. Now if only it can make it from there to SCOTUS’s Petitions to Grant list ….

If you’re curious about the case, you can find all the briefs here; I like to think that our petition isn’t terribly heavy on the legalese, so I think it ought to be accessible even to our nonlawyer readers, and the topic — the First Amendment and restrictions on supposedly sexual expression distributed to minors — should be pretty interesting. As I mentioned in the earlier post, the petition seeks review of the Utah Supreme Court decision I discussed in this June 15 post, and includes a nicely formatted copy of that decision. Here is a summary of our arguments:

1. Under the Ginsberg v. New York decision, speech may indeed be punished on the grounds that it’s “obscene as to minors,” even if it’s not obscene as to adults. But this First Amendment exception is limited to speech that “appeals to the prurient interest in sex of minors,” which is to say (given the Court’s precedents) speech that appeals to the shameful or morbid interest in sex of minors. And the Utah statute under which petitioner was convicted is limited in precisely the same way.

Whether or not one thinks the rough drawings in the case sent by a father to his wife to be shown to his five-year-old daughter were inappropriate, there was no evidence that they appealed to any interest in sex of a five-year-old girl, much less a shameful or morbid interest. (The drawings are included in the Appendix to our petition.) Moreover, “It is clear … that under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene ‘such expression must be, in some significant way, erotic.’” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 n.10 (1975) (citation omitted). And Erznoznik involved a restriction on the usually highly realistic nudity shown on drive-in theater screens — not a restriction on rough and unrealistic drawings, in a context in which there was nothing at all “erotic” about them.

2. There is an at least 11 to 4 to 1 split among lower courts (both state courts of last resort and the U.S. Courts of Appeals) on whether jury decisions that speech is obscene (for adults or just for minors) should be reviewed using “independent appellate review” or with great deference to the jury. The Supreme Court’s precedents call for independent appellate review (for reasons the petition covers in some detail), and courts of last resort in Alabama, Georgia, Illinois, Louisiana, Minnesota, Missouri, Texas, Washington, and the District of Columbia, as well as the U.S. Courts of Appeals for the Fifth and Seventh Circuits, have faithfully read this Court’s precedents as requiring independent appellate review in obscenity cases.

But state supreme courts in Delaware, Iowa, Nebraska, and Wisconsin — as well as the Utah Supreme Court in this case — have refused to apply such review to the “prurient interest” and “patent offensiveness” prong of the obscenity test. And the U.S. Court of Appeals for the Third Circuit takes a third view, splitting the difference between the first two views; if applies such review to the “patent offensiveness” prong but not the “prurient interest” prong.

We’re asking the Court to take the case to resolve this split. Part of the problem in this case, we argue, is precisely that the Utah Supreme Court didn’t independently decide whether or not the material really qualifies as appealing to the “prurient interest in sex of minors” (see item 1 above).

3. Even beyond the split, the Court has recognized the importance of setting benchmark precedents that lower courts can use for comparison in applying fact-sensitive tests, especially in the First Amendment context. Many of the Court’s obscenity, incitement, libel, and commercial speech cases, for instance, involved the setting of such benchmarks, even in the absence of a split on a legal question among lower courts.

And such benchmarks are especially important here, because the Court has never set any such benchmark in an obscene-as-to-minors case. All of the Court’s (few) cases involving obscenity-as-to-minors, starting with Ginsberg, have involved facial challenges to statutes. None has decided whether particular material was indeed obscene as to minors; all the Court has provided so far is the general and quite vague Ginsberg formulation. This is a good case to set such a precedent, and provide guidance to judges, prosecutors, and citizens about what might be treated as “obscene as to minors” and what might not be.

And here’s a short summary of the facts, from the petition:

In November 2008, Butt was in a Utah county jail serving a sentence for theft-related charges. To stay in touch with his wife, his eight-year-old son, and his five-year-old daughter, Butt wrote to them nearly every day, and spoke with them by phone a few times a week. Several times, his family visited him in prison.

This case is about two letters that Butt placed in the jail mailbox to be sent to his wife, so that she could read them to his daughter. Each letter contained a hand-drawn [and very rough rather than realistic] picture.

The first picture stemmed from a conversation between Butt and his daughter, and from a Discovery Channel documentary that they had watched together before he went to jail. Butt testified at trial — without contradiction by any prosecution evidence — that the documentary was about prehistoric cave paintings, in which some people were depicted as naked stick figures. “She was laughing about it, this and that, and there was little people naked, big people naked, and she says, ‘Why are they naked?’ I said, ‘That’s just how they do it back then.’” Trial Tr. 108, App. B, at 27a.

Butt likewise testified, without contradiction, that his daughter had asked him to draw a picture of himself “naked like on the cave walls”:

Q. Did [the five-year-old daughter] make any other requests about the picture?

A. Well, it — as it says right here [referring to a note in the letter to Butt’s wife], “I have no idea why she wanted me to draw my wiener, but she insisted.” She wanted me to draw a picture of myself, and she namely said — particularly said, “And draw yourself naked like on the cave walls.” We happened to watch this documentary on cave dwellings and stuff, and that’s where she was coming from with it.

Trial Tr. 107, App. B, at 27a. Based on this request — and apparently judging that no harm would come of it to the daughter — Butt sent a letter to his wife (reproduced in App. C, at 31a), to be shown and read to the daughter.

Three days later, Butt sent his wife another letter, reproduced in App. C, at 32a. Half the page was addressed to his son, mostly admonishing him to play basketball, and the other half was addressed to his daughter. Both this letter and the first letter alluded to a running joke between Butt and his daughter; as he testified, without contradiction, he would tickle his daughter before bed, “and she’ll roll over [laughing and giggling]. I’ll say, ‘Roll back over or I’m going to bite your butt cheek,’ so she’ll roll back over. That’s all that has ever been said about it, done about it, and it’s nothing more than that.” Trial Tr. 110, App. B, at 27a.

The jail had a policy of randomly inspecting outgoing prisoner mail. The prison guards in charge of this inspection read the letters, and concluded that the letters were illegal. Several days later, Butt was charged with two counts of Dealing in Harmful Material to a Minor, a third degree felony in violation of Utah Code Ann. § 76-10-1206(1) (West 2009).

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