State v. Watts, 20180976

CourtSupreme Court of Utah
Writing for the CourtDurrant, Chief Justice
PartiesState of Utah, Appellee, v. Joseph Andrew Watts, Appellant.
Decision Date28 September 2021
Docket Number20180976

2021 UT 60

State of Utah, Appellee,
v.

Joseph Andrew Watts, Appellant.

No. 20180976

Supreme Court of Utah

September 28, 2021


Heard November 17, 2020

On Direct Appeal

Fourth District Court, Provo The Honorable Christine S. Johnson No. 161402531

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.

OPINION

Durrant, Chief Justice

Introduction

¶1 As part of a sexually explicit online chat, Joseph Watts sent photographs of women with exposed breasts to someone he thought 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 activity[1] 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 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 York[2] 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]

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.

¶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 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]

¶19 The Supreme Court's obscenity...

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1 practice notes
  • Utah Law Developments, 0222 UTBJ, Vol. 35, No. 1. 27
    • United States
    • Utah Bar Journal Nbr. 35-1, January 2022
    • February 1, 2022
    ...have been prepared by the authoring attorneys listed above, who are solely responsible for their content. UTAH SUPREME COURT State v. Watts 2021 UT 60 (Nov. 17, The appellant challenged his conviction for dealing in materials harmful to a minor on First Amendment grounds. Affirming, the sup......
1 books & journal articles
  • Utah Law Developments, 0222 UTBJ, Vol. 35, No. 1. 27
    • United States
    • Utah Bar Journal Nbr. 35-1, January 2022
    • February 1, 2022
    ...have been prepared by the authoring attorneys listed above, who are solely responsible for their content. UTAH SUPREME COURT State v. Watts 2021 UT 60 (Nov. 17, The appellant challenged his conviction for dealing in materials harmful to a minor on First Amendment grounds. Affirming, the sup......

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