The Volokh Conspiracy

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Free Speech

Federal Court Blocks Texas Prosecution of Netflix Over Cuties


Judge Michael Truncale (E.D. Tex.) issued a preliminary injunction, including against pending prosecutions, concluding that the film is likely fully constitutionally protected, and that the prosecutor's theory that it contains child pornography is likely unsound. Federal courts generally abstain from blocking pending state prosecutions, under the so-called Younger abstention doctrine. But here the court concluded that the prosecutions fit within the exception to that doctrine for groundless prosecutions brought for the purpose of harassment and retaliation. An excerpt:

Section 43.25 [under which Netflix is prosecuted] is a child pornography statute, but the Court is unconvinced that Cuties contains child pornography. In all of Cuties, there are no sex scenes and there is only one scene that contains nudity. In that one scene, the Cuties are watching a video on one of their phones when a dancer in the video flashes her breast for a fraction of a second. But that dancer ("Jane Doe") was not a minor. Therefore, her nudity cannot constitute child pornography.

Mr. Babin received notice—well before he sought the New Indictments—that Jane Doe was over eighteen at the time of filming. On October 9, 2020, shortly after Netflix received service of the First Indictment, Netflix's counsel met with Mr. Babin and Mr. Hardy to discuss the case and the indictment. Trying to determine what specifically prompted the indictment, Netflix's counsel volunteered that "if the issue were the fleeting sight of a woman's breast, that they should know that the woman was over eighteen and thus not a child when that scene was filmed." Netflix's counsel also offered to provide proof that Jane Doe was over eighteen when the scene was filmed, but Mr. Babin and Mr. Hardy denied that the indictment involved the exposed breast and expressed no need to see such proof. Despite Netflix volunteering this information, Mr. Babin later obtained the New Indictments under Section 43.25—one of which is for Jane Doe's nudity.

For more, see the opinion (Netflix, Inc. v. Babin). Congratulations to E. Leon Carter, Linda R. Stahl, Joshua J. Bennett, and Monica Litle Goff (Carter Arnett PLLC) and David M. Prichard (Prichard Young, L.L.P.), who represent Netflix.