Fifth Circuit Rejects Younger Abstention Claim by Prosecutor Seeking to Prosecute Netflix for Airing "Cuties"

A rare federal court decision denying Younger abstention.

Netflix's decision to release of "Cuties" prompted a swirl of controversy. It also led to litigation. Specifically, some prosectors filed suit against Netflix alleging the film constituted child pornography. Last year, a federal court in Texas enjoined prosecution of Netflix, noting that the film was almost certainly protected by the First Amendment, but the efforts to score culture war points in court continued, leading ultimately to the U.S. Court of Appeals for the Fifth Circuit.

On December 18, the Fifth Circuit rejected the prosecutor's appeal of the district court's injunction in Netflix v. Babin. Among other things, he sought refuge under Younger abstention (a favorite of FedCourts students everywhere) to claim the federal courts should stay their hand, but to no avail.

Here's Judge WIllett's summary of the decision:

Younger abstention is one of a handful of federalism-flavored carveouts to a federal court's "virtually unflagging obligation" to exercise congressionally conferred jurisdiction. Out of respect for the legitimate interest of the state, and to avoid needless friction, federal courts may not interfere with an ongoing state criminal proceeding, so long as the defendant being prosecuted has an adequate opportunity to raise constitutional challenges in the underlying state forum.

A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass. 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.

In this case, a Texas state prosecutor, Lucas Babin, criminally charged Netflix for advertising and promoting child pornography based on its streaming of Cuties, a controversial film starring preteen girls who participate in a dance competition. Soon after Netflix asserted its First Amendment right to stream and promote Cuties, Babin multiplied the first indictment into four, selectively presented evidence to the grand jury, and inexplicably charged Netflix for a scene that involved a verifiably adult actress. Based on these and other allegations of bad faith, Netflix sought and successfully obtained a preliminary injunction against Babin and his prosecution. Babin now appeals, arguing that the district court clearly erred in finding bad faith and abused its discretion by declining to abstain under Younger.

At this preliminary stage, and on the fact-intensive record before us, we cannot conclude that the district court erred. With the benefit of a seven hour evidentiary hearing, including Babin's own testimony, the district court was best positioned to make the largely credibility-based determination of bad faith. The findings underlying that determination, along with the inferences drawn from them, are not clearly erroneous, and they likely warranted injunctive relief under what we have historically understood to be—and continue to recognize as—a narrow exception to Younger abstention. We accordingly AFFIRM.