State v. Watts , 2021 UT 38 ( 2021 )

2021 UT 60IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
JOSEPH ANDREW WATTS,
Appellant.
No. 20180976
Heard November 17, 2020
Filed September 28, 2021
On Direct Appeal
Fourth District Court, Provo
The Honorable Christine S. Johnson
No. 161402531
Attorneys:
Sean D. Reyes, Att‘y Gen., John J. Nielsen, Asst. Solic. Gen.,
Salt Lake City, Christine G. Scott, Provo, for appellee
Douglas J. Thompson, Provo, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court
in which JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN
joined.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in the
judgment.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 As part of a sexually explicit online chat, Joseph Watts sent
photographs of women with exposed breasts to someone he thought
STATE V. WATTS
Opinion of the Court
was a thirteen-year-old girl. For this conduct, Mr. Watts was
convicted by a jury of dealing in material harmful to a minor—a
third degree felony under Utah Code section 76-10-1206. He appeals
his conviction, arguing that this charge should have been dismissed
on First Amendment grounds. Mr. Watts argues that although the
photographs he sent showed nude breasts, they did not depict
sexual activity1 and so could not qualify as obscenity. Therefore, he
asserts, they are protected speech under the First Amendment. We
disagree. The United States Supreme Court has held that nudity on
its own may be unprotected speech for minors depending on the
context in which it is presented.
¶2 Mr. Watts also argues that the district court erred in
considering the surrounding text messages when conducting the
obscenity analysis on the photographs. But because the Supreme
Court has held that it is appropriate to consider the relevant context
in determining obscenity, we disagree.
¶3 Because nudity may be obscene as to minors without
depicting sexual conduct, and the district court correctly considered
the context of the nude photographs, Mr. Watts‘s argument that
Utah Code section 76-10-1206 is unconstitutional as applied to his
conduct fails, and we affirm his conviction.
Background
¶4 For several weeks, Mr. Watts chatted online with a person
he believed to be a thirteen-year-old girl named Taylor. During this
time, he offered to ―teach‖ Taylor different sex acts, such as oral sex,
sex with toys, and vaginal sex. Mr. Watts encouraged Taylor to
masturbate and to watch videos to learn how to do so. He sent her
an audio file of the sound of a female experiencing an orgasm. He
made plans to meet up with Taylor to have sex with her. Mr. Watts
also asked her if she wanted a woman to join them ―so we could
both teach you stuff?‖ He then sent the first nude picture, a photo of
his ―stripper friend‖ with her breasts exposed.
¶5 In all, Mr. Watts sent Taylor eight nude photographs of
women with their breasts exposed. The women were posed in
various positions, such as lying back, or placing a hand on a naked
breast. After sending the photographs, he asked Taylor which of the
women in the photographs had breasts ―most like‖ hers and
1Because the United States Supreme Court has held that nudity
may be obscene as to minors, we do not address Mr. Watts‘s
argument that the photographs do not depict sexual activity.
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promised to try and get one of the women in the photographs to join
them for sex.
¶6 But ―Taylor‖ was really an undercover federal agent. Based
on Mr. Watts‘s conduct, the State charged him with four counts of
enticing a minor and one count of dealing in material harmful to a
minor. Specifically, the harmful material charge was based on
Mr. Watts‘s act of sending the eight photographs and asking which
picture most resembled Taylor‘s breasts.
¶7 Mr. Watts filed a motion to dismiss the harmful material
count, arguing that photographs of nude breasts cannot qualify as
obscene and so were protected by the First Amendment. The district
court denied the motion, and a jury subsequently found Mr. Watts
guilty on all five counts. Mr. Watts appealed the harmful material
conviction to the court of appeals, claiming the district court erred in
denying his motion to dismiss.
¶8 The court of appeals certified the case to us, including the
question of ―whether, and to what degree, the obscenity-as-to-
minors standard articulated in Ginsberg v. New York2 applies to the
second prong of the obscenity inquiry set forth in Miller v.
California.3‖ We note, however, that we treat a certified question
from the court of appeals as we would a direct appeal. In other
words, the court of appeals‘ framing of the case in its certification
does not confine our analysis in any way.
¶9 We have jurisdiction to hear this case pursuant to Utah
Code section 78A-3-102(3)(b).
Standard of Review
¶10 Mr. Watts asks us to review the district court‘s denial of the
First Amendment arguments in his motion to dismiss. In reviewing
an obscenity case, we ―conduct an independent review of the record
to judge the merits of a First Amendment defense . . . yielding no
deference . . . to the district court‘s conclusions.‖4
2 390 U.S. 629 (1968).
3 413 U.S. 15 (1973).
4 Butt v. State, 2017 UT 33, ¶ 29, 398 P.3d 1024. In this case, both
parties have assumed an appellate court should apply the same
standard as the district court in deciding a motion to dismiss an
obscenity charge. Under this standard of review, a determination
regarding the constitutionality of an obscenity charge is a legal
matter to be resolved by the courts. But even though both parties
(Continued)
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Opinion of the Court
Analysis
¶11 The First Amendment‘s Free Speech Clause ―prohibits any
law ‗abridging the freedom of speech.‘‖5 This protection extends to
preserve the right to express ―[a]ll ideas having even the slightest
redeeming social importance,‖ including ―unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of
opinion . . . unless excludable because they encroach upon the
limited area of more important interests.‖6 One important interest
limiting First Amendment protection is society‘s interest in
prohibiting obscenity. In other words, the First Amendment does not
prohibit laws abridging obscene speech. So, under the First
Amendment, a law may criminalize speech that is obscene.
¶12 Mr. Watts was found guilty by a jury of violation of Utah
Code section 76-10-1206, which criminalizes the provision of
―material harmful‖ to a minor. The statute includes within its
definition of material ―[h]armful to minors‖ representations or
depictions of nudity.7 Mr. Watts argues that the material at issue
here, nude photographs, are not obscene and therefore protected by
the First Amendment of the United States Constitution. He further
argues that because the photographs were not obscene, his act of
sending them constituted protected speech, and on this basis he
appeals the district court‘s refusal to dismiss the charges against
him.
agree that this is the appropriate standard of review, we note that the
obscenity analysis requires the application of a community
standard—a factor that complicates the question of whether the
determination is legal or factual. It may be that jurors are better
suited to determine community standards than a judge because
jurors represent a more complete cross-section of the community. So
the jury‘s superior position as a fact finder may warrant some
deference on this issue, especially where the case comes to us after a
jury verdict rather than a denial of a motion to dismiss. But, because
our previous cases have treated an obscenity determination as a
matter of law, and because neither party challenges that standard
here, we examine the case under our traditional standard.
5 Butt v. State, 2017 UT 33, ¶ 17, 398 P.3d 1024 (citation omitted).
6 Miller v. California, 413 U.S. 15, 20 (1973) (quoting Roth v. United
States, 354 U.S. 476, 484 (1957)).
7 UTAH CODE § 76-10-1201(5)(a).
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¶13 In making this argument, Mr. Watts raises two issues. First,
he argues categorically that nudity by itself cannot qualify as
obscene. In his view, a material is not obscene, even for minors,
unless it depicts ―sexual conduct.‖ We disagree. The United States
Supreme Court has held and reaffirmed that sexual conduct is
unnecessary in obscenity cases dealing with minors so long as the
allegedly obscene material depicts sexually explicit or erotic nudity.8
We therefore conclude that the inclusion of such nudity as material
―harmful to minors‖ under section 76-10-1206 is constitutional.9
¶14 Second, Mr. Watts argues the district court erred in
considering his sexually explicit chats as part of the obscenity
analysis for the nude photographs. He contends the analysis should
be limited to the photographs themselves. So, in other words, he
claims that courts must confine their obscenity analysis to the
content of the allegedly obscene material without considering the
context in which those materials appear. Again, we disagree. The
Supreme Court has repeatedly held that determining whether
materials qualify as obscene requires looking to the context in which
the materials are presented.
¶15 Third, Mr. Watts argues that Utah Code section 76-10-1206
is unconstitutional as applied to the photographs he sent. Because
the Miller ―sexual conduct‖ requirement does not apply to minors
and context is appropriately considered in obscenity analysis, Mr.
Watts‘s argument that the images he sent were not obscene fails. We
affirm Mr. Watts‘s conviction.
I. Because the United States Supreme Court Has Held That Nudity
May Be Obscene for Minors Depending on the Context, the Inclusion
8 See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213–14, 213 n.10
(1975).
9 See UTAH CODE § 76-10-1201 (defining material harmful to a
minor). We note that Mr. Watts does not directly challenge section
76-10-1201. But because the statute criminalizes the distribution of
nude materials to minors under certain circumstances and because
Mr. Watts argues that the constitution protects all speech involving
nudity—even for minors—this argument is best viewed as a
constitutional challenge to the nudity element of the statute. But
because Mr. Watts also makes arguments addressing the context and
nature of the images at issue, we address these arguments as an as-
applied challenge. See infra Section III.
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Opinion of the Court
of Nudity as Material ―Harmful to Minors‖ Under Utah Code
76-10-1201 Is Constitutional
¶16 Mr. Watts argues that the district court should have
dismissed the charge of dealing in material harmful to a minor under
Utah Code section 76-10-1206 because under the First Amendment of
the United States Constitution, nudity alone is not obscene, even for
minors. But the United States Supreme Court has reaffirmed that
explicit or erotic nudity by itself may be obscene for minors. So we
uphold the inclusion of ―nudity‖ in section 76-10-1201 as
constitutional.
¶17 Utah Code section 76-10-1201(5)(a) defines ―[h]armful to
minors‖ as ―that quality of any description or representation, in
whatsoever form, of nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse when it:‖(1) ―taken as a whole, appeals to the
prurient interest in sex of minors;‖ (2) ―is patently offensive to
prevailing standards in the adult community as a whole with respect
to what is suitable material for minors; and‖ (3) ―taken as a whole,
does not have serious value for minors.‖ ―Serious value includes
only serious literary, artistic, political or scientific value for
minors.‖10
¶18 Mr. Watts asserts that nudity may not qualify as harmful—
or obscene—because the United States Supreme Court‘s holding in
Miller v. California, which limits obscenity to material containing
―sexual conduct,‖11 applies not only to adults but to minors as well.
But Mr. Watts misreads the Supreme Court‘s obscenity caselaw.
Miller is an adult obscenity case. In Ginsberg v. New York, a case
decided before Miller, the Court established that the First
Amendment does not require the same obscenity standard for
minors as it does for adults.12 When the Miller Court inserted a
―sexual conduct‖ requirement into the adult obscenity standard in
Miller, it did not intend that requirement to apply to minors. This is
confirmed by subsequent Supreme Court caselaw clarifying that
material may be obscene for minors where it depicts sexually explicit
or erotic nudity.13
10 UTAH CODE § 76-10-1201(5)(b).
11 413 U.S. 15, 24 (1973).
12 390 U.S. 629, 638–40 (1968).
13 Erznoznik v. City of Jacksonville, 422 U.S. 205, 213–14, 213 n.10
(1975).
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¶19 The Supreme Court‘s obscenity jurisprudence presents a
somewhat ―tortured history.‖14 For decades, the Court struggled to
articulate quantifiable standards under which allegedly obscene
material could be analyzed, leading some to conclude the Court may
be trying to ―define what may be indefinable.‖15
¶20 One of the Supreme Court‘s first attempts at defining
obscenity occurred in Roth v. United States.16 In that opinion, the
Court explained that ―[a]ll ideas having even the slightest redeeming
social importance‖ are entitled to First Amendment protection. 17 But
the Court also noted that ―implicit in the history of the First
Amendment is the rejection of obscenity as utterly without
redeeming social importance.‖18 So, according to the Roth Court,
obscene material lacked social value and was, therefore, not
protected by the First Amendment.
¶21 To determine whether material qualified as obscene, the
Roth Court discussed various obscenity tests used by other courts.
Summarizing these tests, the Court explained that, in making an
obscenity determination, courts typically ―appl[ied] contemporary
community standards‖ to determine whether ―the dominant theme
of the material taken as a whole appeals to prurient interest.‖19 Based
on the principles identified in this discussion, the Court upheld the
constitutionality of the statute at issue.
¶22 Following this decision, the Court relied on the principles
identified in the Roth case to develop a three-element test.20 Under
this test, material is obscene if ―(a) the dominant theme of the
material taken as a whole appeals to a prurient interest in sex; (b) the
14 Butt v. State, 2017 UT 33, ¶ 16, 398 P.3d 1024 (quoting Miller, 413
U.S. at 20).
15 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring).
16 354 U.S. 476 (1957).
17 Id. at 484.
18 Id.19 Id. at 489.
20 Miller, 413 U.S. at 21 (―[U]nder the Roth definition ‗as
elaborated in subsequent cases, three elements must coalesce . . . .‘‖
(quoting Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966) (plurality
opinion)).
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STATE V. WATTS
Opinion of the Court
material is patently offensive because it affronts contemporary
community standards relating to the description or representation of
sexual matters; and (c) the material is utterly without redeeming
social value.‖21
¶23 About ten years after Roth was decided, in Ginsberg v. New
York, the Court considered the constitutionality of a New York
obscenity statute that defined material to be obscene to minors ―on
the basis of its appeal to [minors] whether or not it would be obscene
to adults.‖22 In other words, the Court had to determine whether
material that did not qualify as obscene under the Roth obscenity test
for adults could nevertheless be considered obscene when presented
to minors. The Court held that it could.23
¶24 In Ginsberg, the allegedly obscene material consisted of nude
female images inside ―‗girlie‘ picture magazines.‖24 Although the
Court noted that the images at issue—which depicted either ―female
buttocks with less than a full opaque covering‖ or a ―female breast
with less than a fully opaque covering of any portion thereof below
the top of the nipple‖—were ―not obscene for adults,‖25 it held that
New York could criminalize the distribution of nude images to
minors.26
¶25 In so holding, the Court relied on the state‘s constitutionally
recognized interest in protecting children. Specifically, the Court
noted that ―the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults.‖ 27 So the
Court‘s decision in Ginsberg demonstrated that a broader obscenity
standard may be applied where a state‘s interest in protecting
minors is implicated. And, under this broader standard, the Court
affirmed that nude images may be considered obscene for minors
even though they would not be considered obscene under the Roth
obscenity standard for adults.
21 Memoirs, 383 U.S. at 418.
22 390 U.S. at 631.
23 Id. at 637.
24 Id. at 634.
25 Id. at 632–34.
26 Id. at 636–37.
27 Id. at 638.
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¶26 Five years after the Court decided Ginsberg, in Miller v.
California, the Court reevaluated the adult obscenity standard it had
established in Roth. In Miller, the Court considered whether ―pictures
and drawings very explicitly depicting men and women in groups of
two or more engaging in a variety of sexual activities, with genitals
often prominently displayed,‖ could be considered obscene.28 In
deciding this issue, the Court sought ―to formulate standards more
concrete than‖ the standard it had established in Roth.29
¶27 Because the Court recognized that the Roth test was
unworkable in practice, and because of ―the inherent dangers of
undertaking to regulate any form of expression,‖ the Court confined
the permissible scope of obscenity ―to works which depict or
describe sexual conduct.‖30 The Court then incorporated this
limitation into a modified version of the Roth test.31
¶28 Mr. Watts relies on this aspect of the Miller decision to argue
that the nude images he sent fall within the First Amendment‘s
protection. In Mr. Watts‘s view, because material is not obscene
under the modified Miller standard unless it depicts sexual conduct,
the nude images he sent are not obscene.32 But Miller was an adult
obscenity case. And its inclusion of a ―sexual conduct‖ requirement
does not impose the same requirement on materials for minors. This
is clear from the text of the Miller opinion, subsequent Supreme
Court caselaw, and the policies the Court identified in Ginsberg.
28 413 U.S. at 18.
29Id. at 20. This was necessary, according to the Court in Miller,
because subsequent cases had ―drastically altered [the Roth] test‖
even as they ―repeated the words of Roth.‖ Id. at 22.
30 Id. at 23–24.
31 So, under the Court‘s decision in Miller, material is obscene
where (1) ―the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest‖; (2) ―the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law‖; and (3) ―the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.‖ Id. at 24 (citation omitted)
(internal quotation marks omitted).
32As we noted above, we need not determine in this case whether
the nude images Mr. Watts sent depict ―sexual conduct.‖
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Opinion of the Court
¶29 For example, not only did the facts of Miller implicate just
the adult obscenity standard, but in the course of the opinion, the
Court reaffirmed the Ginsberg holding. At several places throughout
the opinion, the Court cited Ginsberg favorably.33 And in a
concluding footnote, the Court reiterated that, ―because of its strong
and abiding interest in youth,‖ a state could regulate ―the
dissemination‖ of materials to minors even when the state ―clearly
could not regulate [the same materials] as to adults.‖34 So the Court‘s
decision in Miller makes clear that different laws may be applied by
states to material disseminated to children. And subsequent caselaw
confirms that nudity may still be considered obscene for minors.
¶30 Shortly after the Miller case was decided, the Court
reaffirmed that nudity may be obscene for minors in Erznoznik v. City
of Jacksonville.35 In Erznoznik, the Court considered the
constitutionality of a city ordinance criminalizing the showing of
nudity at drive-in movie theaters, in part, to protect minors. 36
Significantly, the ordinance at issue defined the criminal conduct
broadly so that it encompassed ―any nudity, however innocent or
even educational.‖37 Based on the ordinance‘s broad definition of
criminal nudity, the Court noted that the ordinance was not
specifically directed at ―sexually explicit nudity.‖38 Rather, the
ordinance‘s definition of criminal nudity was broad enough to ―bar a
film containing a picture of a baby‘s buttocks, the nude body of a
war victim, or scenes from a culture in which nudity is
indigenous.‖39 Because these instances of nudity could not ―be
deemed obscene even as to minors,‖ the Court ruled the ordinance
was unconstitutionally overbroad.40
¶31 But even though the Court ultimately struck down the
ordinance, it nevertheless indicated that the Miller ―sexual conduct‖
33 See, e.g., id. at 19, 27.
34 Id. at 36 n.17 (citation omitted).
35 422 U.S. 205 (1975).
36Id. at 206, 212. The movie at issue depicted ―female buttocks
and bare breasts.‖ Id. at 206.
37 Id. at 211.
38 Id. at 213.
39 Id.40 Id. at 213–14.
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requirement did not apply to the obscenity analysis for minors. It did
this in two ways. First, it noted that ―[i]t is well settled that a State or
municipality can adopt more stringent controls on communicative
materials available to youths than on those available to adults.‖41
And second, it distinguished between ―sexually explicit [or erotic]
nudity‖ and ―innocent or even educational‖ nudity without any
reference to a ―sexual conduct‖ requirement.42 The Court even went
so far as to expressly note that while it had ―not had occasion to
decide what effect Miller will have on the Ginsberg formulation,‖ it
was clear that the minimum constitutional protection offered under
a child obscenity standard is not the same as the minimum
constitutional protection under the adult standard.43 To that point,
the Erznoznik Court clarified that nudity may be obscene as to
minors if it is ―in some significant way, ‗erotic.‘‖44
¶32 Accordingly, the incorporation of a sexual conduct
requirement into the obscenity standard for minors would be
inconsistent with principles articulated in the Supreme Court‘s
obscenity caselaw. As we have noted, in Ginsberg, the Court upheld
the conviction of a shop owner who sold magazines containing
nudity to a minor. In so doing, it acknowledged the magazines were
not obscene for adults. But it recognized the need to protect children
from exposure to harmful materials.45 The Court noted that parents
and others who hold the primary responsibility for minors‘ well-
being ―are entitled to the support of laws designed to aid discharge
of that responsibility.‖46 The Court also recognized that the state has
an independent interest ―to protect the welfare of children and to see
that they are safeguarded from abuses which might prevent their
growth into free and independent well-developed . . . citizens.‖47
¶33 In passing Utah Code section 76-10-1206, the legislature
sought to safeguard the state and parental interests in protecting the
welfare of children. In so doing, it included no ―sexual conduct‖
41 Id. at 212 (citing Ginsberg, 390 U.S. 629).
42 Id. at 211, 213.
43 Id. at 212, 213 n.10.
44 Id. (citation omitted).
45 Ginsberg, 390 U.S. at 639.
46 Id.47 Id. at 640–41 (citation omitted) (internal quotation marks
omitted).
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Opinion of the Court
requirement. Under Ginsberg, as reaffirmed by Erznoznik, the
legislature was constitutionally permitted to define obscenity for
minors in this way. Accordingly, what is not obscene for adults may
still be obscene for minors. Sexual conduct need not be required in a
statute defining obscenity for minors. Nudity alone may qualify as
obscenity for minors, provided it is ―sexually explicit‖ or ―erotic.‖48
Because the Supreme Court has held that nudity alone may be
obscene for minors, we hold that section 76-10-1206 is constitutional.
II. The Obscene Nature of Material Depends
on the Context in Which It Is Presented
¶34 Next, we turn to Mr. Watts‘s argument that the district court
erred in basing its obscenity conclusion on contextual evidence.
Below, the district court found that the images ―did not depict sex.‖
But the court nevertheless concluded that the images were sexual in
nature because the conversation surrounding the distribution of the
images described sexual acts. Mr. Watts argues this was error
because, under the governing standard, images can be considered
obscene only where ―the content of the images themselves‖ is
obscene. In other words, Mr. Watts asserts that courts cannot
consider a material‘s context as part of its obscenity analysis. We
disagree.49
¶35 The United States Supreme Court has long held that
whether material is obscene depends on the context in which it is
presented.50 For example, in Roth v. United States, the Court
48 See Erznoznik, 422 U.S. at 213 & n.10 (citation omitted).
49 We note that Mr. Watts builds this argument, in part, on the
assumption that the Miller ―sexual conduct‖ requirement applies to
obscenity cases involving minors. For example, he argues that the
use of contextual evidence would impermissibly ―imbue an
otherwise conductless image with content.‖ As we explain above,
Mr. Watts‘s assumption about the ―sexual conduct‖ requirement is
incorrect. Accordingly, we address Mr. Watts‘s context-related
argument only to the extent it does not rely on his assumption that a
finding of sexual conduct is required.
50 We note that the obscenity standard in Roth, the statute
approved of in Ginsberg, and the Miller criteria all use the ―taken as a
whole‖ language. Because this language remains consistent
throughout the line of cases and because there is a lack of cases
involving minors specifically, we look to the full body of the Court‘s
obscenity caselaw interpreting this language.
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described the obscenity test as ―whether to the average person,
applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest.‖51 And in
Miller v. California, the Court stated that the ―First Amendment
protects works which, taken as a whole, have serious literary, artistic,
political, or scientific value.‖52 For this reason, the Miller Court
explained that an obscenity analysis must be directed at identifying
―works which, taken as a whole, appeal to the prurient interest in sex
. . . and which, taken as a whole, do not have serious literary, artistic,
political, or scientific value.‖53 So, under Supreme Court caselaw, an
obscenity analysis must focus on the work ―taken as a whole.‖54
¶36 Although Mr. Watts does not dispute that, as part of an
obscenity analysis, courts must consider the work as a whole, he
claims that the relevant ―work‖ in this case should be limited to the
nude images he sent. In other words, the relevant ―work‖ does not
include the sexually explicit messages that accompanied those
images. But we do not read the ―taken as a whole‖ language so
narrowly. Rather, we construe it as an instruction to consider the
relevant contextual evidence.
¶37 This is clear from the Supreme Court caselaw introducing
the ―taken as a whole‖ language. For example, in Roth, the Court
warned against making an obscenity determination based on an
―isolated excerpt‖ of the material.55 And in Kois v. Wisconsin,56 the
Court quoted the ―taken as a whole‖ language before explaining that
this analysis, ―of necessity,‖ required courts to ―look at the context of
the material, as well as its content.‖57
¶38 In Kois, the Court considered whether a small image
depicting a nude man and woman embracing in a seated position
51 354 U.S. 476, 489 (1957) (emphasis added).
52 413 U.S. 15, 34 (1973) (emphasis added).
53 Id. at 24.
54 We also note that the Utah criminal code has adopted the
―taken as a whole‖ language into its obscenity analysis. See UTAH
CODE § 76-10-1201(5)(a).
55 Roth, 354 U.S. at 488–89.
56 408 U.S. 229, 230-31 (1972) (per curiam).
57 Id.13
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Opinion of the Court
and a poem describing sex were obscene.58 As part of its analysis, the
Court noted that the image appeared as part of a newspaper article
discussing the state‘s enforcement of an obscenity law.59 Because the
images were ―similar to the [image] seized‖ in the state obscenity
action discussed in the article, and because ―in the context in which
they appeared in the newspaper they were rationally related to an
article that itself was clearly entitled to [First Amendment
protection],‖ the Court determined that the images were not
obscene.60
¶39 Similarly, in analyzing the obscene nature of the poem, the
Court noted that the poem describing sex appeared in the
newspaper‘s ―two-page spread consisting of 11 poems.‖61 Based on
―the poem‘s content and its placement amid a selection of poems in
the interior of a newspaper,‖ the Court felt that the poem bore ―some
of the earmarks of an attempt at serious art.‖62 And for this reason,
the Court concluded that ―the dominant theme of [the] poem‖ did
not appeal to a prurient interest in sex.63 So, as the Supreme Court‘s
opinion in Kois demonstrates, a proper obscenity analysis necessarily
requires courts to consider the context in which the allegedly
obscene material appears.
¶40 We recently followed the Supreme Court‘s example, in Butt
v. State,64 by considering the context in which allegedly obscene
material appeared. In that case, a father sent two crudely drawn,
nude pictures of himself to his five-year-old daughter.65 In the
second drawing, the father drew himself holding his daughter up in
the air.66 In determining whether these pictures were obscene, we
considered testimony from the father as to why he sent the
drawings.67 In so doing, we acknowledged that, because ―not all
58 Id. at 230.
59 Id. at 230–31.
60 Id. at 231.
61 Id.62 Id.63 Id. at 232.
64 2017 UT 33, 387 P.3d 1024.
65 Id. ¶ 4.
66 It was unclear if the daughter was naked.
67 Id. ¶¶ 34, 36.
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nudity has sexual appeal,‖ we had to consider ―the character of the
material in the context in which it is presented.‖68 Because we
accepted the undisputed testimony of the father that the images
were replicas of cave drawings from a documentary the two had
watched together, we concluded that the pictures were not
obscene.69 So our decision in Butt is consistent with the Supreme
Court‘s practice of considering relevant contextual evidence as part
of an obscenity analysis.
¶41 Mr. Watts does not dispute that we, and the United States
Supreme Court, have considered contextual evidence in the past.
Instead, he argues that the Supreme Court‘s decision in Kois is
distinguishable because, in that case, the relevant ―work‖ was the
entire newspaper, not just the nude image or the poem describing
sex. But this argument misconstrues the reasoning in the Kois
opinion. As part of its decision in Kois, the Court clearly identified
the relevant ―work‖ as the allegedly obscene poem, not the entire
newspaper issue in which the poem appeared.70 So by considering
the poem in the context of the other poems in the newspaper, the
Court‘s analysis included contextual evidence beyond the allegedly
obscene material.
¶42 And even were we to accept Mr. Watts‘s framing of the
relevant ―work‖ in Kois, we do not believe this framing supports his
position. As we noted above, Mr. Watts asserts that the relevant
work in Kois was the entire newspaper in which the allegedly
obscene material appeared. But we do not see a significant
distinction between a newspaper containing allegedly obscene
materials and Mr. Watts‘s online chat containing nude images and
explicit sexual communications.71 In other words, we see no
significant distinction between the Kois Court‘s consideration of
68 Id. ¶ 24.
69 Id. ¶ 36.
70 Kois, 408 U.S. at 232 (analyzing the ―dominant theme‖ of the
allegedly obscene ―poem,‖ rather than the dominant theme of the
newspaper issue).
71 When Kois was decided, the internet—and, consequently,
online chats—were not publicly available. And since that time the
Supreme Court has not updated the obscenity criteria to reflect
changing technology. But, in absence of this needed update, we
conclude that the analog communication of the time may be
analogized to the digital communication of the present day.
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STATE V. WATTS
Opinion of the Court
newspaper articles adjacent to the allegedly obscene materials and
our consideration of the explicit sexual messages Mr. Watts sent
together with the nude images at issue. So Mr. Watts‘s attempt to
distinguish the Court‘s decision in Kois from this case on the basis of
the scope of the relevant work fails.
¶43 Alternatively, Mr. Watts argues that the decisions in Kois
and Butt are distinguishable because, in those cases, the courts relied
on contextual evidence to conclude that the material at issue was not
obscene. In other words, he asserts that contextual evidence can be
used only to shield a criminal defendant from an obscenity finding—
it cannot be used by the prosecution as evidence that material is
obscene. This argument also fails.
¶44 Although we acknowledge that in many obscenity cases
contextual evidence has aided defendants, Mr. Watts cites no
authority to suggest that contextual evidence must be ignored where
it would be prejudicial to the defendant‘s case. To the contrary,
governing precedent indicates that contextual evidence must be
considered to properly ascertain the character of disputed material.
So even though contextual evidence may benefit defendants in
certain cases, the purpose of considering contextual evidence is to
aid the court in making an accurate obscenity analysis.72
¶45 In sum, we conclude that the Supreme Court‘s instruction to
consider the relevant ―work as a whole‖ while conducting an
obscenity analysis requires courts to consider relevant evidence. This
includes the content of the allegedly obscene material as well as the
context in which that work appears. Accordingly, in this case, the
district court did not err in considering the sexually explicit
messages as part of its analysis regarding the obscene nature of the
nude images Mr. Watts sent.
III. Utah Code Section 76-10-1206 Is Constitutional as Applied to
Mr. Watts
¶46 Mr. Watts argues that Utah Code section 76-10-1206 is
unconstitutional as applied to the photographs he sent. In making
72 Although, in Ginsberg, the Court did not discuss the importance
of considering contextual evidence, its reasoning suggests that the
Court‘s obscenity determination was based on the fact that the nude
images appeared in a ―‗girlie‘ picture magazine[].‖ See Ginsberg v.
New York, 390 U.S. 629, 634 (1968); see also id. at 672 (Fortas, J.,
dissenting) (describing the ―girlie‖ magazine as a ―vulgar,‖
―tasteless,‖ and ―tawdry‖ periodical).
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this argument, Mr. Watts claims that his conviction should be
reversed because none of the three Miller elements, even if modified
for minors, are satisfied in this case. But having determined that
Miller‘s sexual conduct requirement does not apply to minors, and
the district court properly considered the text messages surrounding
the nude photographs, Mr. Watts‘s remaining arguments fail.
¶47 It is true that the Supreme Court has ―stopped short of
establishing a standard for material directed to minors.‖ 73 However,
the Court has given us enough guidance to address the only
arguments presented by Mr. Watts. Mr. Watts‘s challenge to the
constitutionality of his conviction, framed in terms of the Miller
standard, boils down to three arguments: (1) the images he sent do
not appeal to a thirteen-year-old‘s prurient interest in sex; (2) ―[t]he
material does not portray sexual conduct in a way that is offensive,
even to a thirteen-year-old‖; and (3) the photographs were not
obscene because they had serious artistic value. Applying Supreme
Court precedent, these arguments fail.
¶48 First, Mr. Watts argues that the images he sent do not appeal
to a prurient interest in sex for a thirteen-year-old girl. Because the
district court properly considered the context in which Mr. Watts
sent the photographs, under Kois v. Wisconsin,74 the images at issue
in this case easily satisfy this requirement. ―A prurient interest in sex
is one that is [] shameful or morbid.‘‖75 We applied this element in
Butt v. State without resolving the differences between the obscenity
standards in Ginsberg v. New York and Miller v. California because the
element went unchanged from Roth to Miller.76 We noted in Butt that
material aimed at appealing to the interest in illegal sex is easily
deemed ―shameful or morbid.‖77 The district court concluded that
this requirement was met because the photographs and conversation
―all came up in the context of [a] highly sexualized conversation
where [Mr. Watts] is alleged to have been soliciting sex and trying to
73 Infra ¶ 53 (Lee, A.C.J., concurring in the judgment).
74 408 U.S. 229 (1972) (per curiam).
75Butt v. State, 2017 UT 33, ¶ 32, 398 P.3d 1024 (quoting Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)).
76 Id. ¶ 21 (―Fortunately, Roth and Miller identify roughly
equivalent standards on the question presented here. Both require
that ‗the material taken as a whole appeal to a prurient interest in
sex.‘‖ (citations omitted)).
77 Id. ¶ 32.
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STATE V. WATTS
Opinion of the Court
set up a sexual encounter with a minor child.‖ The evidence in this
case confirms that the photographs were explicitly aimed at enticing
a thirteen-year-old girl to have sex with an adult man and possibly
an adult woman. This satisfies the prurient interest requirement.
¶49 Second, Mr. Watts argues his conviction was
unconstitutional because the images ―do[] not portray sexual
conduct in a way that is offensive, even to a thirteen-year-old.‖ But
as we have explained, the Supreme Court has held that material may
be considered obscene for minors—even where it does not depict
sexual conduct—if it depicts ―sexually explicit‖ or ―erotic‖ nudity.78
And the nudity at issue here, considered in the context of the
surrounding text messages, was sexually explicit and erotic. Further,
we have no trouble concluding that any adult in the community
would find it patently offensive for an adult man to send a thirteen-
year-old girl multiple photographs of women posed with breasts
exposed, especially when those photographs are accompanied by a
request that the young girl identify which one of the women had
breasts most like hers and a promise to try and get one of the nude
women from the photographs to join the two of them in sex. In
context, it is clear that Mr. Watts sent these nude images to titillate:
he encouraged the girl to view pornography and to google ―girls
masturbate videos.‖ He also asked her if she wanted to ―see some
big‖ breasts along with a number of other explicit and ―sexually
charged‖ statements. With this context in mind, we conclude that the
district court did not err in its determination that the nude images
are patently offensive and unsuitable for a thirteen-year-old.
¶50 Mr. Watts‘s final argument is that, taken as a whole, the
material has serious value for minors. Specifically, Mr. Watts claims
the photographs had serious artistic value. But as the district court
noted, the images were not sent as part of a discussion about
―Renaissance [a]rt or physiology or anything that might appeal to
artistic or scientific value otherwise.‖ It cannot be seriously argued
that there is any value for minors in nude photographs of adult
females (who are posed in sexually suggestive ways), which are
distributed for the purpose of grooming a thirteen-year-old to have
sex with an adult man.
78 Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 & n.10 (1975)
(citation omitted).
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¶51 Because Mr. Watts‘s three arguments that the statute was
unconstitutional as applied to his conduct fail, we affirm his
conviction.
Conclusion
¶52 The United States Supreme Court held in Ginsberg v. New
York and again in Erznoznik v. City of Jacksonville that nudity may be
unprotected speech for minors depending on the context: Sexual
conduct is not required in the obscenity analysis for minors. We
affirm the district court‘s holding that the relevant context may be
constitutionally considered in the obscenity analysis and that the
nude photographs Mr. Watts sent, when viewed in context of his
sexually explicit messages, are unprotected obscene speech for
minors. Accordingly, we affirm Mr. Watts‘s conviction.
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STATE V. WATTS
LEE, A.C.J., concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶53 Joseph Watts contends that the State infringed his
constitutionally protected free speech rights in pursuing a criminal
charge arising out of sexually explicit interactions with a minor
online. Watts relies on a line of free speech cases handed down by
the United States Supreme Court many decades ago—principally, the
three-part test for obscenity prescribed in Miller v. California, 413 U.S.
15 (1973). Yet the Miller opinion sets an obscenity standard for
material provided to adults. And the Court has studiously stopped
short of establishing a standard for material directed to minors. See
Ginsberg v. New York, 390 U.S. 629, 631 n.1, 636–37 (1968) (declining to
define the precise scope of First Amendment protection for material
directed to minors); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–
14 & n.10 (1975) (stating that ―adult obscenity standards‖ do not
govern ―obscenity as to minors‖ and noting that the Court had ―not
had occasion‖ to decide how Miller would affect the standard for
material directed to minors).
¶54 Watts asks us to hold that the ―material‖ he directed to a
minor is protected speech under ―the correct test‖ of obscenity under
the First Amendment. He contends that the district court ―applied
the incorrect test‖ in ―compress[ing]‖ the three elements of the Miller
test ―into one prong‖ and ―then replac[ing] the content of the images
themselves with context unrelated to whether the material was
obscene.‖ And he asks us to uphold a First Amendment right to
distribute the images at issue to a minor under a standard rooted in
Miller but with a ―modification‖ based on Ginsberg—on the grounds
that the images he sent ―do not appeal to a prurient interest in sex
for‖ a minor, ―do not depict sexual conduct in a patently offensive
way,‖ and are ―not without societal value.‖79
79 In his opening brief, Watts asserted that ―[t]his Court should
conclude that the district court applied the wrong standard and
should apply the Miller test to the images in this case, including the
Ginsberg modification to minors for prong 1.‖ (Emphasis added.) He
also claimed that the images he distributed ―are not obscene and
therefore are protected by the First Amendment.‖ The State
responded by suggesting that Watts had asserted only a ―facial
challenge‖ to the constitutionality of the Utah statute. On reply,
Watts reiterated that he is asserting that ―his conduct is protected by
the constitution, regardless of what the statute purports to
criminalize.‖ (Emphasis added.)
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¶55 The majority affirms the denial of Watts‘s motion to dismiss
but stops short of identifying a legal basis for a governing
constitutional standard. Instead of so doing, the majority limits its
analysis to the rejection of two elements of Watts‘s position on the
governing First Amendment standard of obscenity for material
directed to minors. First, it holds that ―incorporation of a sexual
conduct requirement into the obscenity standard for minors‖ is
―inconsistent‖ with Supreme Court precedent. Supra ¶ 32. Second, it
interprets the governing case law to allow consideration of the
―context‖ in which an image is distributed ―as part of [the] obscenity
analysis.‖ Supra ¶ 34.
¶56 These threshold conclusions may be premised on a correct
reading of Supreme Court case law. But this analysis leaves
unanswered the question whether Watts‘s acts are protected activity
under the First Amendment.
¶57 I would resolve that question on the ground that Watts has
failed to carry the burden of persuasion he bears in establishing a
basis for his constitutional claim. I would hold that Watts has not
identified a basis for a standard of obscenity for material directed to
minors in either controlling Supreme Court precedent or in the
original meaning of the First Amendment. And I would affirm the
denial of his motion to dismiss on that ground.
I
¶58 Our laws are entitled to a ―strong presumption of
constitutionality.‖ Maxfield v. Herbert, 2012 UT 44, ¶ 15, 284 P.3d 647(citation and internal quotation marks omitted). The presumption is
of course rebuttable. But a party that asserts a constitutional claim
bears the burden of persuasion—in identifying a basis for a
governing constitutional standard, and demonstrating that the
standard is not met as applied in a given case. See Neese v. Utah Bd.
Pardons & Parole, 2017 UT 89, ¶ 164 n.47, 416 P.3d 663 (Lee, A.C.J.,
dissenting) (stating that ―[t]he burden of establishing the
unconstitutionality‖ of a law falls on the party raising the claim and
concluding that the burden had not been met where the party had
failed to identify a basis for its proposed disposition in the original
understanding of the Constitution).
¶59 A party may carry the burden of establishing a controlling
constitutional standard by identifying a basis for it in governing
precedent or in the original meaning of the text of the Constitution.
Steiner v. Utah State Tax Comm’n, 2019 UT 47, ¶ 63, 449 P.3d 189(rejecting a constitutional claim when the party could not anchor its
claim in ―text, history, or precedent‖). Where the standard is set forth
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STATE V. WATTS
LEE, A.C.J., concurring in the judgment
in controlling precedent from the United States Supreme Court, we
are of course bound to follow it. But there is no controlling precedent
on the ultimate question presented in this case—on the free speech
standard of obscenity for material provided by an adult to a minor.
That leaves Watts with the burden of identifying some other basis for
the controlling standard. And I would hold that he has failed to carry
the burden.
II
¶60 Watts has asked us to pick up where the U.S. Supreme Court
left off many decades ago—in revising and adapting a free speech
standard that lacks any express connection to the text or original
meaning of the First Amendment to the constitution, and is rooted
instead in an open attempt at common-law policymaking. I see no
basis for so doing.
¶61 Our recent case law has emphasized the difficulties that
lower courts face when we are asked to revise and extend U.S.
Supreme Court precedent of the sort presented here. See Steiner v.
Utah State Tax Comm’n, 2019 UT 47, ¶¶ 62–64, 449 P.3d 189; DIRECTV
v. Utah State Tax Comm’n, 2015 UT 93, ¶¶ 45–46, 364 P.3d 1036. Steiner
and DIRECTV involved constitutional challenges to state law under
the so-called Dormant Commerce Clause of the U.S. Constitution. In
that field, we lamented that ―the high court‘s rulings‖ had
―proceeded on an ad hoc basis lacking any ‗clear, overarching
theory‘‖ or ―mooring‖ in the original meaning of the text of the
Constitution. Steiner, 2019 UT 47, ¶¶ 3, 18 (citation omitted). We
acknowledged ―our duty to follow controlling precedent.‖ Id. ¶ 3.
But we also ―emphasized the difficulty of ‗anticipat[ing] expansions
of the law‘‖ in a field lacking a clear basis in theory or in the
constitutional text. Id. (alteration in original) (citation omitted). ―And
in the absence of clear direction (in text, history, or precedent), we
declined to make a guess about the direction the case law might take
in the next case that comes before the Supreme Court.‖ Id. (citation
omitted). We did so ―not out of any disrespect for the United States
Supreme Court, but in our best attempt at judicial humility in a
constitutional field marked more by haphazard policy judgments
than any unifying legal theory.‖ Id. ¶ 20.
¶62 ―In such a field,‖ we concluded that ―it would seem
presumptuous to make our own guess about the next move the high
court might make as it extends its precedent.‖ Id. And in a case in
which the party asserting a constitutional claim had identified no
basis for its position in the original meaning of the Constitution,
id. ¶ 64, and the U.S. Supreme Court itself had likened its case law to
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a ―quagmire,‖ id. ¶ 16, we ―le[ft] it to that court to mark the next
extension in this field,‖ id. ¶ 20.
¶63 The case before us today presents a similar set of problems.
The free speech standards set forth in Miller lack any overt
―mooring‖ in the text or original meaning of the Constitution. This is
―ad hoc‖ policymaking ―lacking a clear basis in theory or in the
constitutional text.‖ And it is every bit the ―quagmire‖ presented in
the dormant commerce sphere. See Jacobellis v. Ohio, 378 U.S. 184, 197
(1964) (Stewart, J., concurring) (suggesting that the Court might
―never succeed in intelligibly‖ stating a governing standard of
obscenity, and concluding only that ―I know it when I see it, and the
motion picture involved in this case is not that‖).
¶64 The Miller standard takes a legal form. It is presented as a
three-part test. Miller v. California, 413 U.S. 15, 24 (1975). But the test is
nowhere connected to a ―clear, overarching theory,‖ much less to the
text or original understanding of the First Amendment. And the
three parts of the test leave key questions unanswered, reserving ―I
know it when I see it‖ discretion for juries and judges in applying the
test, and defying courts to make a ―guess about the next move the
high court might make‖ when it ―extends its precedent‖ into new
spheres. Steiner, 2019 UT 47, ¶ 20.
¶65 Watts has invited us to make a range of guesses about how
Miller might be adapted to fit the context of material aimed at
minors. He implicitly acknowledges some important, unresolved
questions under Miller—as to (a) how to define the scope of the
relevant ―work‖;80 (b) what elements of a work‘s context should be
considered in assessing whether, ―taken as a whole,‖ it appeals to the
―prurient interest in sex‖ or has ―serious literary, artistic, political, or
80See City of St. George v. Turner, 860 P.2d 929, 931, 934 (Utah 1993)
(considering a First Amendment challenge raised by music shop
owner who pinned bed sheets to the walls and allowed patrons to
spray paint them—which they did with a range of potentially
offensive phrases and images; holding that ―it is problematic to
dignify the bed sheets by calling them a ‗work‘‖); Penthouse Int’l, Ltd.
v. McAuliffe, 610 F.2d 1353, 1370 (5th Cir. 1980) (stating that ―a
magazine usually is not as thematically integrated as a book or a
movie‖ but is ―more so than a newspaper‖); City of Urbana ex rel.
Newlin v. Downing, 539 N.E.2d 140, 148 (Ohio 1989) (suggesting that a
―magazine must be looked at as a whole and not as a series of
‗works‘ resulting in a ‗volume‘‖ (citation omitted)).
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STATE V. WATTS
LEE, A.C.J., concurring in the judgment
scientific value‖;81 (c) whether a jury‘s determination under these
standards merits deference by a reviewing trial judge or appellate
court;82 and (d) whether the appellate standard of review is dictated
by federal or state law.83 And he asks us to adopt a revised Miller test
81 See Turner, 860 P.2d at 931, 934 (noting the lack of any
―discernible unifying theme or organizational structure to the
drawings and statements‖ on bed sheets hung from walls on a music
shop; stating that there are ―two isolated sexual images‖ that were
―rendered by different individuals who were venting whatever
thoughts, however base, crude, or unconventional, that came into
their minds‖; and concluding that the ―isolated sexual images do not
make the four bed sheets plainly and unmistakably sexual in
nature‖); City of Cincinnati v. Contemp. Arts Ctr., 566 N.E.2d 214, 217
(Ohio Mun. Ct. 1990) (noting that ―the meaning of the phrase ‗taken
as a whole‘‖ has not been established by the Supreme Court;
concluding that a photograph in an art gallery, unlike a newspaper
or poem, ―stands alone within the four corners of its framework‖).
82 See Miller v. California, 413 U.S. 15, 24 (1973) (characterizing the
three parts of the test as articulating ―guidelines for the trier of fact‖);
id. at 26 (―In resolving the inevitably sensitive questions of fact and
law, we must continue to rely on the jury system, accompanied by
the safeguards that judges, rules of evidence, presumption of
innocence, and other protective features provide‖); Pope v. Illinois,
481 U.S. 497, 500 (1987) (treating ―the first and second prongs of the
Miller test‖ as ―issues of fact for the jury‖); Smith v. United States, 431
U.S. 291, 304–06 (1977) (stating that the reference to ―contemporary
community standards‖ ―does not mean‖ that obscenity
determinations ―will be virtually unreviewable‖; emphasizing that
―[t]he type of conduct depicted must fall within the substantive
limitations suggested in Miller‖ and holding that ―it is always
appropriate for the appellate court to review the sufficiency of the
evidence‖ (citation omitted)); United States v. Various Articles of
Obscene Merch., Schedule No. 2102, 709 F.2d 132, 136 (2d Cir. 1983)
(suggesting that ―appellate courts are required to exercise de novo
review as to the preliminary substantive requirement[s]‖ of Miller,
and ―the trier‘s finding that the material is non-obscene is virtually
shielded from appellate scrutiny, at least absent evidence that it is so
clearly unreasonable as to amount to abuse of discretion‖).
83See Sawyer v. Dep’t of Workforce Servs., 2015 UT 33, ¶¶ 9, 14, 345
P.3d 1253 (noting that state law standards of appellate review of
lower court determinations of mixed questions of law and fact are
based on ―an institutional policy determination‖ by the court; stating
(Continued)
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that accounts for some of the unique policy concerns that arise when
erotic material is aimed at minors, and that credits those concerns as
more weighty than the government‘s interests in prosecuting the
crimes charged in a case like this one. Watts‘s position, however,
finds no support in controlling precedent.
¶66 There is no precedent establishing a controlling standard of
obscenity for material directed to minors. The policy-based
formulation in Miller has been on the books for almost fifty years. Yet
the Court has never established a standard of obscenity as to minors,
see supra ¶ 53, and the indeterminacies in the Miller formulation have
largely been left to fester.
¶67 The Supreme Court acknowledged this problem just two
years after the Miller standard was first handed down. In Erznoznik v.
City of Jacksonville, the Court stated that ―adult obscenity standards‖
do not govern ―obscenity as to minors.‖ 422 U.S. 205, 213 n.10 (1975).
It also noted apologetically that the Court had ―not had occasion to
decide what effect Miller will have‖ in this setting. Id.¶68 We are still awaiting such occasion. All we have is the vague
notion in Erznoznik that ―not all nudity‖ may be ―proscribed,‖ and
that we review mixed determinations—which may encompass the
various inquiries under Miller—under a level of deference
―[d]epending on the nature of the legal question at issue,‖ with some
―mixed questions with constitutional dimensions‖ being reviewed
―de novo for policy reasons‖); Hanna v. Plumer, 380 U.S. 460, 471–72
(1965) (holding that ―neither Congress nor the federal courts can,
under the guise of formulating rules of decision for federal courts,
fashion rules‖ governing state courts ―which are not supported by a
grant of federal authority contained in Article I or some other section
of the Constitution‖; stating that ―in such areas state law must
govern because there can be no other law‖); Turner, 860 P.2d at 932–
33 (acknowledging that ―judges possess no special expertise that
qualifies them to supervise the private morals of the nation or to
decide whether a particular speech or communication is good or bad
for a local community,‖ but holding that ―judges are better equipped
by their training to appreciate and protect First Amendment values‖;
quoting plurality opinion in Jacobellis v. Ohio, 378 U.S. 184, 188 n.3
(1964), for the proposition that there is ―no group‖ other than
appellate judges that are ―better qualified‖ to make ―value
judgments of the type required by the constitutional standards for
obscenity‖).
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STATE V. WATTS
LEE, A.C.J., concurring in the judgment
that ―to be obscene, ‗such expression must be, in some significant
way, erotic.‘‖ Id. (quoting Cohen v. California, 403 U.S. 15, 20 (1971)).
¶69 This leaves lower courts ―largely in the dark‖ on how to
resolve the questions presented in a case like this one. See Steiner,
2019 UT 47, ¶ 17 (raising a parallel concern as to dormant commerce
case law). There is no ―clear, overarching theory‖ driving the
Supreme Court‘s standards of obscenity. See DIRECTV, 2015 UT 93,
¶ 45 (making that point regarding dormant commerce case law).
Miller is a matter of ―ad hoc‖ weighing of policy considerations. Cf.
Steiner, 2019 UT 47, ¶ 17–19.
III
¶70 Our 2021 understanding of the policy questions presented in
obscenity cases is surely different from that which informed the
Miller formulation in 1973. Miller v. California, 413 U.S. 15 (1973).
Miller was decided decades before the advent of the internet. And the
digital world of today introduces a range of difficulties for anyone
seeking to extend or refine Miller in the context of material directed
to minors. Among other things, the internet has made it easier for
pedophiles to groom children for sexual abuse—by providing a
seemingly anonymous platform for predators to encounter children,
engage them in sexually explicit conversations, and groom them for
abuse or other forms of lasting harm. See Helen C. Whittle, Catherine
Hamilton-Giachritsis, & Anthony R. Beech, Victims’ Voices: The Impact
of Online Grooming and Sexual Abuse, 1 UNIVERSAL. J. PSYCHOLOGY 59,
62–67 (2013) (documenting stories of children who experienced
online sexual abuse, which sometimes led to offline sexual abuse,
and detailing impacts of online sexual abuse and noting that ―online-
only‖ abuse did not differ in ―extent of the impact on the victim‖
from offline sexual abuse).
¶71 A legislative body may be in a position to account for these
and other policy considerations in establishing a standard of
obscenity for material directed to minors. Someday, perhaps the
Supreme Court will take up that task. But I see no basis for this court
to apply the standard proposed by Watts on the briefing presented to
us in this case.
¶72 Because Watts has failed to carry the burden of establishing
a basis for a constitutional standard that works in his favor, I would
end the analysis of Watts‘s as-applied challenge there. I would affirm
on the ground that Watts has fallen short of identifying a basis for his
position in the text or original meaning of the First Amendment or
controlling Supreme Court precedent.
26