ST. GEORGE, Utah—Many AVN readers may not be aware of this, but pretty much from the invention of photography until about the 1970s, a common societal meme was the idea that it was really cute to photograph a baby crawling around on a bearskin rug. Of course, it could be argued that some who enjoyed this photography might not be on the up-and-up—that is, such photographs might be valued by pedophiles—but most were just images to post in the family photo album, to be pulled out when the kid was a teen and of an age to be embarrassed by them.
But consider the situation of Eric Leon Butt, Jr., formerly an inmate in a local Utah jail, having been convicted of theft in 2008. Butt was a family man who wrote daily to his wife and young son and daughter, and in one of his letters to that five-year-old girl, he wrote, "Well I know you want me to draw my whole body, but I can’t draw very good, so this will have to work." He enclosed a drawing, and as Chief Justice Lee of the Utah Supreme Court put it, "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."
Not sure whether his family had received his first letter and enclosure, Butt tried again three days later, this time writing, "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." Again, according to Chief Justice Lee, "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.'"
Of course, anyone who's been exposed to a lot of sexually explicit material, not to mention anyone who's been molested as a child, might very well look askance at Butt's notes and drawings, but we're talking about Middle America here, where a lot of people do stuff like that without giving it a second thought. They consider it playful, and even believe it helps bond them to their families.
Not so much the jail officials who intercepted and copied Butts's notes and drawings before sending them on. In fact, a few days after Butt sent that last letter, jail officials busted him for "Dealing in Harmful Material to a Minor," a third-degree felony. The definition of "harmful to minors" pretty much follows the Miller v. California definition of "obscenity," though as applied to minors: that the material "taken as a whole, appeals to the prurient interest in sex of minors"; that it is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors"; and that "taken as a whole, [it] does not have serious value for minors."
In order to be convicted under that statute, Butt's letters and drawings would have to fulfill all three "prongs" of that test, but convicted he was, and even the Utah Supreme Court affirmed the conviction when it first saw the case, apparently giving no weight to the argument that the drawings did not appeal to a "prurient interest in sex of minors."
After that ruling, Butt retained the services of three other attorneys, including Eugene Volokh, who runs the First Amendment Clinic at the UCLA Law School. Butt's new counsel filed a state post-conviction challenge, arguing that Butt's trial counsel failed to make a First Amendment argument that the material Butt sent was protected speech, and asked the Utah Supremes to consider the question, "Should this Court provide lower courts with a benchmark precedent about what material is 'obscene as to minors' or 'harmful to minors,' by deciding whether roughly drawn pictures, lacking in sexual content, sent by a father to his wife to be shown to his young child are properly viewed as 'obscene as to minors'?"
On reconsideration, the Supreme Court decided that the first drawing was clearly protected by the First Amendment, as the simple nudity of a father crudely drawn would not appeal to anyone's "prurient interest," not even that of a five-year-old, if a child that young could be considered to have any "prurient interest" at all. Besides, Butt's attorneys had explained to the court that, "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."' Butt likewise testified, without contradiction, that his daughter had asked him to draw a picture of himself 'naked like on the cave walls.'"
Of the second drawing, Volokh wrote on his blog, the Volokh Conspiracy, that, "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."
However, accompanying its decision, the Utah Supreme Court did add a footnote to its ruling, stating, "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."
A more complete account of the Butt case can be found here.
