Free Speech

Indictment of Netflix Under Texas Child Pornography Law Probably Won't Go Anywhere

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Netflix has apparently been indicted in Texas (see below) under the Texas child exploitation statute, based on the alleged "depict[ion of] the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age" in the controversial French-language film Cuties. A few thoughts on the legal issues here (I set aside any moral or aesthetic issues, on which I lack any special expertise).

[1.] I think Netflix should easily beat this indictment because Texas law expressly excludes material that has "serious literary, artistic, political, or scientific value":

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

(1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

(2) appeals to the prurient interest in sex;  and

(3) has no serious literary, artistic, political, or scientific value.

The judgment about serious value in such contexts is generally seen as being, in the first instance, a matter of law for the judge (and for appellate judges); it's to be judged under a national reasonable person standard, and not under a community standard. (See Pope v. Illinois (1987).) And of course a work can have serious artistic value regardless of its moral message; and serious value is not a particularly high bar.

From all I hear about Cuties (I haven't watched it myself), it does have serious artistic value, and it seems unlikely that a court would conclude that a film that won a Best Director prize (in the international film category) at Sundance lacks such value. To be sure, in Castillo v. State (Tex. Ct. App. 2002), the court was a bit cavalier as to the serious value inquiry when it came to a comic book, and left the matter to the jury's discretion. But given the Pope precedent, coupled with the film's awards and nominations (and perhaps, rightly or wrongly, the sense that broadly exhibited films are more "artistic[ally]" "serious" than comic books), I don't think Netflix has much to worry about here.

It may well be that Cuties also lacks the lewd exhibition of genitals required by prong (1), and doesn't appeal to the prurient interest in sex (generally defined as a "shameful or morbid" interest in sex) required by prong (2). But the serious value prong should stop the prosecution most clearly.

[2.] Now it appears that a state probably could ban child pornography without regard to whether it has serious value: In the words of the Supreme Court in Ashcroft v. Free Speech Coalition (2002),

Where the images are themselves the product of child sexual abuse, the State ha[s] an interest in stamping it out without regard to any judgment about its content…. The fact that a work contained serious literary, artistic, or other value [does] not excuse the harm it caused to its child participants.

Indeed, the federal child pornography statute doesn't require a showing of lack of value. But states can have statutes that are narrower than the child pornography exception allows them to be, and Texas seems to be one such state.

[3.] And the child pornography exception also apparently extends to lewd (or "lascivious") exhibition of clothed genitals, see U.S. v. Knox (3d Cir. 1994):

We hold that the federal child pornography statute, on its face, contains no nudity or discernibility requirement, that non-nude visual depictions, such as the ones contained in this record, can qualify as lascivious exhibitions, and that this construction does not render the statute unconstitutionally overbroad.

That of course requires complicated judgments about what is a "lewd exhibition" of clothed genitals (and of course there are also complicated judgments about what is a "lewd exhibition" of naked genitals, since not all nude photos of children are treated as child pornography). Opining on that would also require me to watch the movie, which I'm not inclined to spend my time doing. But, again, this particular prosecution seems to be a lost cause regardless of what counts as lewd exhibition.

[4.] I've heard was some talk about whether a girl's breasts in Cuties were exposed enough to call for prosecution; but this particular indictment doesn't mention breasts.

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  1. “And of course a work can have serious artistic value regardless of its moral message; and serious value is not a particularly high bar.”

    It seems you could drive a truck through that loophole.

    “…states can have statutes that are narrower than the child pornography exception allows them to be, and Texas seems to be one such state.”

    Probably something to do with the Religious Right.

    1. “Probably something to do with the Religious Right.”

      Or wanting to protect children. Suppose that’s just a conservative belief.

      1. Or wanting to protect children.

        By… not criminalizing child pornography as expansively as they could?

        1. I suppose I should have specified that my “Religious Right” reference was sarcastic.

      2. It’s not pedo porn, AL. No one is saying Netflix goes to jail. That’s a tell of the agenda being more performative culture war nonsense than anything about protecting children.

        And if it’s not child porn, then we aren’t going to censor it. That’s what our Constitution says.

        You don’t like it, don’t watch it. I’m not going to. This is America.

        1. It doesn’t strictly have to be porn to be wrong Sarcastro…

          1. According to the 1A it does for it to be actionably wrong. Which, again, points to this being performative.

            But more than that, there is the culture of free speech people love to invoke when talking about campuses or social media platforms.

            We live in a pluralistic society. That means a culture wherein personally wrong needn’t mean it’s time to insist it not exist.

            1. Having read a couple of reviews of Cuties, it sounds like an interesting movie about a difficult subject, and it’s likely to get a lot of people upset. According to the reviews, it’s about the sexualization of young girls. It depicts an 11 year old girl who, to gain the approval of older girls she admires, starts dressing like them and (after they dare her) performs provocative moves in a dance contest. Although the movie’s message is apparently critical of the sexualization of girls at this young age, I would think that pedophiles might enjoy watching it. I agree with Eugene that such movies should not be censored, but I can see why some people are unhappy.

              1. Not my cup of tea but vastly more than Bring it On for 11-year-olds.

                1. Vastly more? Even groundbreaking maybe. Todays Lady Chatterly’s Lover.

              2. We abhor the wanton murder of puppies so we are depicting puppy murder to bring it to people’s attention.

                Regardless of the supposed moral message it’s soft kiddie porn. It probably doesn’t warrant government censorship but it does warrant canceling Neflix, which we have done.

                1. This is how it should work – well done. Judging and making a decision for yourself, not trying to make it a decision for everyone.

        2. Sarcastr0, it may not be ‘pedo porn’ but it sure in hell isn’t right. Sexualizing pre-pubescent girls is wrong. Period.

          The only appropriate way I can think of to respond, constitutionally, is to cancel one’s subscription, and persuade others to do the same. This case smacks of legal harassment. I am not in favor of that. That is being done all too often now.

          1. On that we agree. I think this is a reflection, not a cause of that sexualization. From what I’ve seen, it’s not really shot in a titillating manner. Not going to watch it myself, but I think this whole child porn thing is trumped up right-wing red meat nonsense.

            But yeah, making the personal choice to opt-out/boycott is exactly the right action to take.

            This started via QAnon, naturally. I see an edging closer to a mainstream GOP tactic to be calling Dems out-and-out pedophiles. Great way to delegitimize the other side, if that’s all you care about.

            1. Callouts, smearing and boycotting on a large scale started with QAnon? What are you on about? I hate to break it to you, but the conservatives were late to that party. Sadly, they seem to be making up for lost time.

              1. “Callouts, smearing and boycotting on a large scale started with QAnon?”

                In general? No. In the specific case of “Cuties”? Yes.

              2. “Callouts, smearing and boycotting on a large scale started with QAnon? What are you on about? I hate to break it to you, but the conservatives were late to that party”

                I hate to break it to you, but no they absolutely were NOT late to that party.

      3. Considering how much the Left reveres 10 year old drag queens and sexualizing pre-teens, I think you’re right.

        Protecting children is only a conservative thing now.

        1. Careful, you’re about 2 steps from yelling that the Dems are all satanic pedophiles harvesting adrenochrome.

          1. I’d give even money he believes it.

          2. By acknowledging the Left’s reverence of Desmond is Amazing and the horrifically graphic PP sex-ed curriculum being taught in Democrat controlled government schools I’m some sort of conspiracy nut?

            Who put Desmond is Amazing on a billboard in New York Square? Was that QAnon? Or sick pedo-leftists?

            1. And who puts walnut sauce on pizza, eh?

              1. I have no idea what you’re talking about.

                Was Desmond is Amazing dancing in that gay strip club before or after he was put on the billboard?

                I hear he is starting a new dating site. Probably to compete with Grindr.

                1. I have no idea what you’re talking about, so there!

                  1. Never doubt Sam’s knowledge of all matters pedophilia again.

                2. “Was Desmond is Amazing dancing in that gay strip club”

                  You seem to know who’s dancing in gay strip clubs better than I do.

          3. You’re late and pointing the finger the wrong direction. Wachenfeldt, Smaadahl and Lundgren still claim a group of men at all levels of Sweden’s government and society belong to a secret satanic pedophile ring whom ritually abuse and impregnate girls then ritually sacrifice and eat the newborn children. They’ve been making these claims since the early 1990s. Smaadahl is fairly prominent in the Labour Party. There are others, but those are the three I could recall off the top of my head.

            1. In America, it wasn’t leftists claiming powerful men at all levels of government were secret pedophiles. But it was a powerful man wishing luck to the alleged procurer.

    2. I think you misunderstood the post. Texas could ban more things but doesn’t. That’s surely not because of the Religious Right.

      1. ” Texas could ban more things but doesn’t. That’s surely not because of the Religious Right.”

        They probably did, and saw the statute tossed for being incompatible with the first amendment.

  2. Are the film people who keep giving awards to each other the same people who sign petitions for Roman Polanski? Is there any overlap?

    1. I’d guess pretty close to 100%.

      1. In your mind, I’m sure it’s at least 100%. Meanwhile, in the real world…

  3. Tyler County, Texas, pop. 21,766 . . . conscience of a knuckle-dragging nation.

    The major “city” is Woodville, pop. 2,586.

    The “major” roadway is Highway 69.

    1. The district attorney is a 2014 law graduate whose father is the United States House member from this particular part of the sticks.

      His official portrait is something to see.

      Carry on, clingers.

      1. Appears that he was elected (running unopposed) after his predecessor and former boss was removed for “incompetency and official misconduct”.

        12newsnow.com/article/news/local/tyler-county-da-removed-from-office/502-587254455

        I think Netflix is going to be okay.

        1. “I think Netflix is going to be okay.”

          It’s Tyler that people should be worried about.

          Or, on second though, not. Its decline is no great loss. Its disappearance might improve America.

          1. Tyler, TX is not in Tyler County, it’s in Smith County, but not the Deaf one. Smith, TX is in neither Smith County nor Deaf Smith County. Terrell, TX is not in Terrell County, Austin’s not in Austin County, Hockley’s not in Hockley County, etc. The Republicans who run Texas seem to be neglecting the order part of law and order as well as the law part. One would think they would have straightened this out by now.

            1. They draw the lines for partisan advantage. If there’s no gain to be made, they won’t bother.

    2. So now you’re the voice of pro pedophilia.

      Good to know.

      1. No, he’s for the opposite position of whatever “clingers” believe.

        If Trump tweeted in favor of bathing, Arthur would stop bathing (if he ever started).

        1. What do you guys figure the over-under on legitimate college degrees in Tyler County, Texas should be?

          Thirteen?

          Eleven?

          How about advanced degrees?

          Five?

          Four?

          1. If only we had some way to figure this out?

            Tyler County:
            HS or better 84%. Better than TX as a whole.
            Dropout rate 16%. Better than TX.
            Bachelors Degree or Better 13%. TX 29%
            STEM (or something) 35% of degrees. TX, 44%
            Ed degrees 26%, greater than TX as a whole. This makes sense as it’s likely that in small county Texas the school systems likely have more degree holders per capita than in Dallas, Fort Worth, Austin, Houston, or San Antonio.

            1. Legitimate degrees. Ouachita Baptist degrees don’t count.

              1. Jesus Artie, I don’t believe you have me doing this crap. I’m not sure I’ve ever heard of Ouachita Baptist before, but it appears to be a legitimate school not unlike a whole bunch of small colleges. Other than its religious affiliation, and the fact that at least two generations of a certain family have attended, what is the reason for sneering?

          2. Bigotry is cool, so long as it’s pointed at stupid people, amirite!?

            1. You use the criminal justice system to make a paltry, partisan, political point, you should expect your ignorance and backwardness to become fair game.

              Maybe these yahoos should try to get an education rather than complaining about being considered and called yahoos?

              1. Perhaps they realized that the praise of those who dislike them because where they were born, or where they live, is of little concern.

                1. I dislike stains and drains on our society, such as the prudish, stale-thinking authoritarians of half-educated, can’t-keep-up communities such as Tyler County, Texas.

                  1. I’n not much of a Nietzsche fan, but even a blind hog and all that.

  4. So what percentage of people among a set(In this case national) qualifies as the reasonable person standard. 10%, 20%? Cause you might hit the former, but you ain’t hitting the latter.

  5. “Sterling Gray Van Wagenen (born in Utah, United States, July 2, 1947) is an American film and stage producer, writer, director, and convicted sex offender. He is a co-founder of the Sundance Film Festival, and, in association with Robert Redford, he was the founding executive director of the Sundance Institute.[1][2][3][4][5]

    In 2019, Van Wagenen was convicted of child sexual abuse and sentenced to six years to life in prison.”

    1. Does he have a lot to do with this lawsuit of Netflix? Then maybe quit with your guilt by association nonsense.

      1. It may be relevant in that the Sundance film festival (according to one of the prof’s links) gave the film a directing award, and the award supposedly indicates artistic value. I would imagine that if this were litigated, the prosecutors would question the value of getting an award from Sundance in these circumstances.

        1. If you’re going to argue that Sundance is pro-child porn, then you’re just buying into more guilt by association.

          1. “If you’re going to argue that Sundance is pro-child porn”

            It’s a tad more nuanced than that “summary” indicates.

            Suppose that a Ku Klux Klan leader cofounded Sundance, and Sundance later gave an award to *Birth of a Nation.* Is the founder’s Klan affiliation relevant or not?

            1. No, it’s not. If you don’t care about guilt by association.

              You look at the purpose it was made for, it’s culture, it’s procedures and voting members.
              That you’re not means you think they’re all pro child-porn.

              Which is unsupported nonsense.

              1. “No, it’s not. If you don’t care about guilt by association.”

                Fair enough, but I wouldn’t envy you if you tried to argue with a(nother) leftist about how the Klan affiliation was irrelevant.

                1. Oh, I piss of leftists just fine without bringing hypothetical klansmen.

            2. Suppose the co-founder of Earth Day murdered his girlfriend, shoved her into a freezer, then fled to France, who refuses to extradite him because he faces the death penalty.

              1. Ok, should I then pretend that this exercise in imagination has any purpose other than giving you naughty feelings in your pants?

        2. According to Sundance he has no current association with them and hasn’t in some time.

          1. Like 27 years.

            1. This secret conspiracy goes back more than 27 years?? That shows how strong and powerful it is!

              1. And that nobody has ever discovered any evidence of its existence proves how good of a conspiracy it is.

                1. That proves how powerful the people that are involved with it are.

      2. its not a lawsuit, its a criminal indictment.

        and its “associated” very clearly even in the prof’s post which relies in part on the artistic value as evidenced by the award granted to the movie by the org co-founded by the child molestor.

        1. I sit corrected.

          But it doesn’t look like this guy made the decision at Sundance.

          1. Well, he may have made staffing decisions, which could lead to another investigation.

            1. Getting quite attenuated here.

              Maybe this guy made some staffing decisions that influenced the voting at Sundance such that they called this movie artistic when it really has no actual cultural value.

              That’s your current argument.

              1. Yeah, that’s my current argument. Though I rather suspect the imputed cultural value is actually the work it does degrading people’s sensibilities.

                1. Ah yes, that’s the real goal of Sundance – degrading America’s sensibilities.

                  Soros probably fits in there somehow as well.

                  1. “The” goal? Probably not. “A” goal? Yes, I think so.

                    1. This is why it’s not possible to take your arguments seriously, Brett

  6. The larger issue is that this is all because of a concerted effort by the Christian right. They raise a great deal of money by manufacturing controversies.

    The Establishment Clause seems to be increasingly meaningless Further proof of that is available via Justice Thomas who doesn’t like the ruling in Obergefell.

    1. when did Tulsi Gabbard become part of that group?

      1. Which means what, exactly? Just because, for example, not every racist is a right wing crackpot conspiracy theorist doesn’t mean that racism is not common among that group.

      2. When did Tulsi Gabbard become part of what group, there, Reg?

    2. Nope, the think of the children movement is generally secular now. Looking at the main driving force against prostitution and sex in media it mostly comes from the left this day. In terms of specific handwring over stuff like cuties its pretty much bipartisan. The hysteria in this sector is so virulent and universal not many people on either side are brave enough to paint a target on their back by showing an ounce of common sense.

      1. Dunno where you get the idea this is bipartisan other than wishful thinking.

        These are your bedfellows. QAnon, evangelical scolds, and cynical grifters trying to gin up outrage against Decadent Hollywood.

        Enjoy.

        1. You’re not going to find many people who will oppose ‘think of the children’ creep be they on the right all the way to feminist soccer moms, holyweird whistleblowers, corporations etc.

          On the other hand the Left is clearly the ascendant force in terms of policing and repressing adult sex in society today. See ‘affirmative consent’ laws, college sex tribunals, female model billboard regulations, crusades against ‘sexist’ depictions of the female form in comics, video games, movies. ‘body positivity’ Scaremongering about prostitution and supposed sex trafficking. The rightwing puritan has been supplanted by the leftwing one.

          1. This ain’t about your man-o-sphere bitterness fiesta, we’re talking about a right-wing moral panic here.

            Sorry that’s outside of your safe space, ever pointing left.

            1. I’m correcting someone by pointing out things that factually exist unless you want to show me that I’m wrong and that the examples I listed are fictional. No bitterness or emotion needed just facts.

              1. Not gonna get into it with you on this off-topic MRA thing you have.

    3. Your supporting evidence is missing.

  7. “(I set aside any moral or aesthetic issues, on which I lack any special expertise)”

    Says a lot about the legal “profession.”

    1. Like what?

    2. You want the law to start making moral and aesthetic judgments, Jimmy?

      1. Your question says more about Sarcastro then anything else you have ever written.

        1. Please explain.

          1. You just answered it. Thanks.

          2. It’s all in his head. No need to let it out.

  8. I do not understand this indictment. I watched some of this series. I found the girls annoying, the opposite of sexually arousing. They were a turnoff, by their annoying talking.

    If the indictment is frivolous, the sovereign immunity of the prosecutor should be pierced. It should pay all legal costs from personal assets. It is not part of the job description to file frivolous allegations. The taxpayer should not be punished for prosecutorial misconduct. Let these unethical lawyers buy liability insurance. If the Supreme Court upholds its prior absolute immunization of the prosecution, it should all be impeached. To deter these self dealing, rent seeking, lawyer enemies of our nation.

    1. The only thing that stopped you from being sexually aroused by a group of 11 year old girls was the way they talked?

      1. The comment is about my interest in prosecutorial misconduct, and making lawyers pay. What is in your mind?

        1. “The comment is about my interest in prosecutorial misconduct”

          Then why did you include the part about not finding girls sexually attractive?

    2. That’s not how sovereign immunity works. If it is absolute, it can’t be pierced.

      1. We have a textualist on the Supreme Court. I want you and him to read the plain English of the Eleventh Amendment. Hans is a mere obsolete decision. The constitution has no sovereign immunity. Netflix has a presence in Texas, and is not the citizen of another state.

        Immunity grows an enterprise. Liability shrinks it. Those interested in smaller government should support tort litigation against all levels of government. Government does nothing well, and should be deterred. “Another” is a second grade vocabulary word.

        “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

        1. ” Those interested in smaller government should support tort litigation against all levels of government. ”

          Unless, of course, this causes the government to enlarge to incorporate defenses against tort litigation.

    3. Just turn the sound down if you want to get aroused and the talking induces flaccidity. Or, just close your eyes and fantasize about killing all the lawyers.

      1. I do not want to kill anyone. I want to deter the lawyer, Hon. The lawyer profession of the US is the biggest, richest, most powerful criminal enterprise in the world. They have infiltrated the three branches of government, and make 99% of the policy decisions, no matter the elected figureheads. Trump is making them angry, and they are really doing lawfare on him. I do not want to execute them. I want to return the lawfare on the lawyer profession.

        The average, normal male wants to put most preteens in time out, not to date them. They are not sexy in the least. When they speak, one wants to smash one’s head on the wall to lessen the pain.

        1. “The lawyer profession of the US is the biggest, richest, most powerful criminal enterprise in the world.”

          Someone is mad that the lawyers won’t let him into the clubhouse, it seems.

        2. “I do not want to kill anyone. I want to deter the lawyer, Hon.”

          Blow it out your ass, Baby Boy.

  9. I hope Netflix responds by refusing to provide service to Tyler County, Texas.

    It wouldn’t cost much. How many people in that county could afford full-rate Netflix?

    Twenty-five? Thirty?

    1. Most people that live in Tyler are black. So you are a raging bigot.

      1. I’ll admit that I’d never heard of this place before seeing this post, but according to Wikipedia:

        The racial makeup of the county was 84.0% White, 12.0% African American, 0.4% Native American, 0.2% Asian, 2.52% from other races, and 1.1% from two or more races. About 3.6% of the population was Hispanic or Latino of any race.

      2. “Most people that live in Tyler are black.”

        Are you referring to Tyler the city or Tyler the county? (Spoiler: It won’t matter.)

        Do you have any information — let alone persuasive information — that controverts the readily available published reports indicating that the relevant population is more than 80 percent White?

        Other that those points, though, great comment!

      3. That was a given. Kirkland discriminates based on viewpoint, ‘class,’ ethnic background or group, creed, sex, sexual preference, geographic origin or residence. And, in true left-leaning authoritarian style, he seems a proponent for mass punishment inflicted on a population for an individual’s actions, case in point. This, as is always the case, disproves his ‘liberal-libertarian’ claims.

        1. You picked a bad thread to sound the ‘lefty authoritarian’ call, clinger.

  10. I’m not sure how a person could “set aside [] moral or aesthetic issues” when talking about what constitutes “lewd” exhibition of the genitals, a “prurient interest” in sex, and whether a visual depiction has “serious literary, artistic, political, or scientific value.” The entire legal standard requires making judgements about morality and values, even if the individual claims they are the judgements of a fictional “reasonable person” (the “reasonable person” being a creation of individual). Scalia’s concurrence in Pope points to this issue, recommending the Court adopt the maxim De gustibus non est disputandum.

    I think Volokh’s choice of words for the headline of this post displays a moral judgment on his part, whether intentional or not. The headline is: “Indictment of Netflix Under Texas Child Pornography Law Probably Won’t Go Anywhere”

    The statute Netflix is charged with violating (Sec. 43.262) is titled “Possession or Promotion of Lewd Visual Material Depicting a Child.” It does not appear that Netflix was charged with violating Sec. 43.26, which is titled “Possession or Promotion of Child Pornography.” Yet, Volokh has chosen to write in the headline that Netflix was indicted under the “Child Pornography Law.” He is of course free to make the moral judgment that “lewd visual material depicting a child” is the same as “child pornography.” But, it seems clear that the Texas legislature chose to draw a legal distinction between the two terms.

    1. Nitpicking is arguing in bad faith. Dismissed.

    2. QuantumBoxCat: 1. Our readers are all over the country, so I tend to use national legal definitions, rather than those peculiar to particular states. The child pornography exception was recognized by New York v. Ferber (1982), which defined it to include ” works which portray sexual acts or lewd exhibitions of genitalia by children.” That’s why I chose to describe the ban on material that “depicts the lewd exhibition of the genitals or pubic area” as a child pornography ban.

      2. I think one can conclude that the movie has serious artistic value — based on its awards and reviews — without having to exercise much independent aesthetic judgment (and certainly without having to exercise much independent moral judgment).

      1. I respectfully disagree. It might just as well be argued that he awards were given precisely because of the attempts to censure the film because many believe that it promotes sexual exploitation of children, etc. Sundance in particular, but most movie critics in general, have been known to be leftist of some level, while those on the right tend to be the ones complaining. In short, I would suggest that possibly the awards are more based on tribal identity than on Merit.

        Let me add that for decades, fairly explicitly sexual content has been justified as art, commentary, etc. Accompanied by the performers being called artists (as opposed to being called “strippers” or even “prostitutes”). A lot of winking and nodding going on then, with everyone knowing the game.

        Something else. A lot of high level claims of pedophilia involving powerful people going round right now. The photos, then pictures, in Tony Podesta’s house got out onto the Internet, and were shocking. Both Clintons apparently traveled to Epstein’s Pedo Island. Etc. Is the reason that Netflix, that has paid the Obamas so generously, made and ran his film is that they are attempting to mainstream pedophilia?

        1. ‘Let’s start a blog that will make the smart people who run strong law schools want to hire more movement conservatives for faculty positions . . . and make conservative ideas more popular and palatable among a broader audience.’

        2. The were no efforts to censor the film when it won at Sundance, because no one who wasn’t involved with Sundance or the films production was even aware of it. It **premiered** at Sundance.

        3. For decades completely explicit sexual content has also been readily available. More than you can ever consume is available right now, for free, on the very device you are using to read this comment.

          I really don’t understand who, in the 21st century, could possibly be watching the sexual content of mainstream entertainment because of prurient interest in the sex itself.

      2. ” Our readers are all over the country, so I tend to use national legal definitions, rather than those peculiar to particular states. ”

        There’s a definition of child pornography in the US Code. It covers a lot more stuff than people think.

  11. Its amazing how nuts everybody is going over this stupid film. Also, clothed children are now child pornography? Better arrest everyone who has every seen or taken a photo of a kid?

    1. There are people who are rather virulently anti-sex. It seems to be related to religious fervor. They’ll grasp at pretty much any straw.

  12. To get their evidence they had to watch the film. Twice actually. To judge how unclothed those girls were, they had to rewind certain segments six or seven times, even.

    1. To create the film they had to coach innocent children to behave in this manner, and there were doubtless plenty of takes to accomplish it.

      1. It’s a movie about, among other things, dance culture being sexualized even when it’s young girls doing the dancing.

        So it’s worse than you say Brett, it’s about real life stuff where the girls aren’t even acting!

        1. Yes, I understand that was the excuse they came up with after the fact.

          1. Tik Tok: The Movie

            Shaking your ass in dances for videos to post is all the rage, and the naughty nature sucks in younger teens to do it, too. How dare a movie point this out?

            Seems like blaming the messenger.

          2. After the fact?! It’s the plot of the movie, Brett!

        2. You don’t abuse children in order to create a movie about child abuse, Sarcastro. And that’s what this is, a movie about child abuse created by abusing children. Only, as I understand it, per earlier reporting, the movie wasn’t originally promoted as a warning about child abuse, but rather a celebration. They switched to making it an expose’ after they got a hostile reception.

          1. No – the point is that you didn’t care until this culture war rabble-rousing came up.

          2. They switched to making it an expose’ after they got a hostile reception.

            What’s your basis for that claim?

            1. Same source as Brett’s usual, which is to say rectal extraction.

          3. How is photographing a child, any kind of abuse? Ow, those photons struck me before being absorbed by your camera!

  13. I have always thought there is a serious due process issue when a crime is defined with such vague language that no one can reasonably guess whether a crime has been committed and we have to await a jury verdict to find out the answer.

    1. So you have to pass a law to find out what it does after winding its way through courts?

  14. The State of Texas ought to be allowed to decide for itself the laws it would establish and the legal actions it may take regarding such material. The edicts of SCOTUS should not control, and no federal court should have any say in the matter, beyond interpreting Texas law.

    Just look at the inherently vague and subjective idea of artistic value. At least some film award committees would award films precisely because they contain some “edgy” material to offend those uptight traditional folks that don’t approve of exploiting 11 year old to create lewd films of them.

    1. “The State of Texas ought to be allowed to decide for itself the laws it would establish and the legal actions it may take regarding such material. The edicts of SCOTUS should not control, and no federal court should have any say in the matter, beyond interpreting Texas law.”

      So you think the first amendment shouldn’t apply in Texas, or just that the legislature there should be able to override it?

      1. First of all, if I understand EV’s analysis, it appears that Texas could probably outlaw this material without running afoul of the First Amendment. It’s just that Texas hasn’t done so under the current statute — at least, not as that statute will be understood with reference to federal constitutional law generally.

        Second, I think that first amendment principles should apply in Texas. And I think the State of Texas should be entitled to decide the precise contours of that law and the cases and controversies arising under it, and this power should not be wrested from them by the federal government. Basic federalism. Of course, I assume you are aware that the First Amendment to the US Constitution reads, “Congress shall make no law . . . ”

        Glancing at the Texas Constitution, it looks like its “first amendment” is quite strongly worded and disposes of some arguments that are advanced by the left in the cause of weakening the First Amendment, such as the idea that media institutions have more rights than individuals.

        1. “First of all, if I understand EV’s analysis, it appears that Texas could probably outlaw this material without running afoul of the First Amendment.”

          Quite certain. Texas’s problem comes from the 14th, which, unlike the 1st, applies to states.

    2. Coming out against the 14th Amendment.

      Bold move.

      1. Not the 14th amendment, but the reinterpretation of the 14th amendment 60-80 years after its passage.

        1. You want it repealed, get your 2/3 of each house of Congress and 3/4 of the state legislatures lined up.

  15. Netflix was convicted in the ‘court’ of public opinion by this juror previously when they associated with the Obamas, oh bummer. Who could not have foreseen further corruption? I remember back when the perpetrator charged $1/month and one could have three DVD in circulation.

    The good old days before Hillary’s ‘Devils’, Netflix’s Cuties, QAnon and #Pizzagate. Oh, and Epstein.

    1. Do we have a real live QAnon guy here? It was only a matter of time.

  16. Who uses the phrase “SEPTEMBER A.D. 2020” in a legal document?

    This came from Texas?

    Oh, nevermind. . . .

  17. Interesting note. Texas is the state that have this…

    https://www.universalroyalty.com/Baby-Pageants.html

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