State v. Watts
State v. Watts, 2021 UT 60 (Durrant, C.J.) (Lee, A.C.J. concurring)
Criminal
Defendant met someone he believed to be a 13-year-old girl online. He sexually propositioned her, offering to teach her various sex acts that involved other women. He sent her nude photos of topless women and sent her an audio file of a woman orgasming. He asked her which female’s breasts looked most like her own. The person posing as a 13-year-old girl was a federal agent, and Defendant was arrested and convicted of dealing in material harmful for a minor. On appeal, Defendant challenges the constitutionality of his convictions and of the Utah Code as applied to him on First Amendment grounds. On direct appeal, The Utah Supreme Court affirmed, holding:
- Under United States Supreme Court precedent, nudity may be obscene as to minors without depicting sexual conduct, constituting unprotected speech depending on the context. Here, the nude photographs Defendant sent to a minor, when viewed in the context of his sexually explicit messages, are unprotected speech. The section of the Utah Code Defendant was charged under is not unconstitutional as applied to him.
- The CONCURRENCE would resolve the threshold question above on the ground that Defendant has failed to carry the burden of persuasion he bears in establishing a basis for his constitutional claim.