An appeals court on Monday blocked a Texas district attorney from pursuing child pornography charges against Netflix for showing the French film “Cuties.”
In a 3-0 ruling, the 5th Circuit Court of Appeals upheld a lower court injunction that put the prosecution on an indefinite hold.
Netflix released the film in September 2020, sparking immediate controversy over its depiction of a teen dance troupe. Lucas Babin, the elected D.A. in Tyler County, Texas, indicted the streamer for “promotion of lewd visual material depicting a child.”
The film does not contain any sex scenes. The underage actors are shown doing provocative dance steps while clothed, and there is also a brief glimpse of an adult woman’s bare breast.
The streamer took the case to federal court, arguing that Babin was pursuing the case in bad faith and had no hope of obtaining a conviction. In November 2022, a federal judge granted Netflix’s request for an injunction, saying he was “unconvinced that ‘Cuties’ contains child pornography.”
Babin appealed to the 5th Circuit, which upheld the injunction on Monday.
“Netflix has shown at this stage that it has been subjected to a bad-faith prosecution, an injury we have already deemed ‘irreparable,'” wrote Judge Don R. Willett. “The balance of equities also favors Netflix. It has an obvious interest in the continued exercise of its First Amendment rights, and the State has no legitimate interest in a bad-faith prosecution.”
Babin’s office and Netflix did not immediately respond to requests for comment.
Babin dropped the initial “lewd material” charge in February 2022, nearly a year and a half after the grand jury indictment.
Netflix had filed a habeas corpus petition challenging the charge, after a ruling in a separate case found the Texas statute violated the First Amendment. Babin then brought four new indictments accusing Netflix of distributing child pornography — a more serious allegation.
The company’s only option in state court would have been to defend itself at trial. So instead, the streamer sought a federal injunction.
Babin was represented by the Texas attorney general’s office in the appeal. The office argued that Babin was exercising appropriate prosecutorial discretion in filing the charges, and that the federal injunction was an improper intrusion on state sovereignty.
The case drew the attention of First Amendment organizations and media outlets. A group including the Motion Picture Association, Penguin Random House, the News/Media Alliance, the Texas Tribune, and many others, filed an amicus brief in June in support of Netflix.
The group argued that the “Cuties” prosecution could chill reporting and advocacy around issues like rape and child sex trafficking. The brief cited the Hulu documentary, “Pretty Baby: Brooke Shields,” in which the actor discusses her objectification as a teen star, as the kind of expression that might be hindered if the “Cuties” prosecution were allowed to go forward.
“Judging the artistic merits of works should not be left to the whims of government officials,” the amici wrote. “Although a government official may personally disagree with the message promoted in an expressive work, this country has decided, as guided by its history and U.S. Supreme Court precedent, that the government — much less one government official — should not dictate what is allowed in the marketplace of ideas.”
“Cuties” tells the story of an 11-year-old Senegalese immigrant girl who is caught between her conservative traditional culture and the more permissive climate in France. The director, Maïmouna Doucouré, has said that she made the film in order to call attention to the sexualization of young girls on social media.
“Yeah, it’s dangerous,” she said in a Netflix promotional interview. “We are able to see oppression of women in other cultures. But my question is, isn’t the objectification of a woman’s body that we often see in our Western culture not another kind of oppression?”
