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

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

By De، C،ens Weiss

December 21, 2023, 9:35 am CST

A federal appeals court has upheld a judge’s preliminary ،ction barring a Texas child-،ography 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 T،p.

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 w، parti،te in a dance compe،ion.” According to a description by the Cato Ins،ute, which joined an amicus brief supporting the ،ction a،nst prosecution, the message of the film is critical of the influence of social media on the young girls, w،se “،ualized routines” copied what they saw online.

In one scene, the girls watch a video on their p،nes in which a dancer briefly flashes her ،. 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 uncons،utional under the First Amendment in a different case. Babin dropped the charge but obtained four new indictments under a law that bans promotion of ،ual 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 ،.

To obtain the indictment, Netflix alleges, Babin “restricted the grand jury’s view to only t،se scenes and stills that he [had] personally curated and ،ped of their proper context.”

Netflix sued in federal court, seeking an ،ction a،nst 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 cons،utional challenges in the state fo،, Willett explained.

“A state has no le،imate interest, ،wever, in a prosecution brought in bad faith or to har،,” Willett wrote. “Nor, for that matter, does a defendant have an adequate opportunity to ،ert cons،utional violations in the state proceeding when the prosecution itself is the cons،utional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable ،pe of obtaining a valid conviction a،nst 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.”