Utah Inmate’s Drawing to Daughter Not Obscene

While Eric Butt was serving time for theft, he wrote a letter to his 5-year-old daughter. The letter included a drawing that showed him holding his daughter’s butt up to his mouth. A speech bubble from her mouth said, “Oouch! Daddy don’t Bite so hard Giggle giggle.” A speech bubble from his mouth said, “Oh your butt taste so good.” Above the drawing, he wrote, “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.” Butt was convicted of distributing harmful materials to a minor.

(Okay, before you wonder what would make a father mail these sorts of drawings to his daughter, apparently the two of them had a nightly tickle routine. Eric would buzz his lips on his daughter’s tummy, she’d be tickled, playfully roll over, and Eric would ‘bite’ his daughter on the rear end, something that she thought was funny.)

Messages Image(4254259893)Turns out that the First Amendment protects Butt’s butt drawing. Butt’s case involved the obscenity doctrine, which says that obscene speech doesn’t get First Amendment protection. The question is, of course, what is “obscene.” Justice Potter Stewart famously could provide no definition other than to say: “I know it when I see it.”

The court here found that Butt’s drawings was not obscene because it was not aimed at arousing his daughter’s interest in sex. (Remember: she’s 5 years old.) Butt’s uncontested testimony at trial was that his drawing was basically an inside joke about tickling—and so the court found that Butt’s daughter would not have perceived his drawing as sexually suggestive. As the court reminded us in a final footnote, in the law of obscenity, “context matters.”

Case: Butt v. State, No. 20141121 (Utah June 19, 2017) (opinion here)

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