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.