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Child-porn prosecution of Netflix for ‘Cuties’ film looks like ‘mosaic’ of bad faith, 5th Circuit says

By Debra Cassens Weiss

December 21, 2023, 9:35 am CST

A federal appeals court has upheld a judge’s preliminary injunction barring a Texas child-pornography prosecution of Netflix for streaming the movie Cuties, agreeing with a Netflix lawyer that the case looks like a “mosaic” of bad faith.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled for Netflix in a Dec. 18 opinion by Judge Don R. Willett, an appointee of former President Donald Trump.

Law.com and Law360 have coverage, while How Appealing links to additional articles.

The appeals court described Cuties as “a controversial film starring preteen girls who participate in a dance competition.” According to a description by the Cato Institute, which joined an amicus brief supporting the injunction against prosecution, the message of the film is critical of the influence of social media on the young girls, whose “sexualized routines” copied what they saw online.

In one scene, the girls watch a video on their phones in which a dancer briefly flashes her breast. Netflix said it can verify that the dancer was older than age 18 at the time of filming.

Tyler County, Texas, District Attorney Lucas Babin at first obtained an indictment charging Netflix under an obscenity law that was later struck down as unconstitutional under the First Amendment in a different case. Babin dropped the charge but obtained four new indictments under a law that bans promotion of sexual conduct by a child younger than age 18.

Three of the indictments were based on three different clothed minor girls in the film, and the fourth was related to the actress with the exposed breast.

To obtain the indictment, Netflix alleges, Babin “restricted the grand jury’s view to only those scenes and stills that he [had] personally curated and stripped of their proper context.”

Netflix sued in federal court, seeking an injunction against Babin’s prosecution.

The Younger abstention doctrine, which is named after the U.S. Supreme Court’s 1971 decision in Younger v. Harris, is not an impediment, the 5th Circuit said. The doctrine bars federal court interference with state court proceedings, as long as the defendant has an adequate opportunity to raise constitutional challenges in the state forum, Willett explained.

“A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass,” Willett wrote. “Nor, for that matter, does a defendant have an adequate opportunity to assert constitutional violations in the state proceeding when the prosecution itself is the constitutional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable hope of obtaining a valid conviction against the defendant, comity-infused deference gives way, and a federal court may exercise its equitable power to enjoin the prosecution.”

The 5th Circuit said it can’t conclude that a district court erred in enjoining the prosecution “at this preliminary stage and on the fact-intensive record before us.”