After bringing criminal charges again Netflix, DA winds up with federal court bad-faith finding
Maïmouna Doucouré, the director of the film Cuties, is interviewed in 2020 at the Sundance Film Festival. (Photo by Matt Sayles/Invision for Netflix/AP Images)
Cuties, a 2020 Netflix film, tells the story of an 11-year old Senegalese girl in France who comes from a devout Muslim family navigating the sometimes provocative culture of modern dance while having a devout Muslim family.
Directed by Maïmouna Doucouré, a French filmmaker who like the main character, Amy, is Senegalese, the film was not without controversy. Cuties stars children from the ages of approximately 9 to 14. There are numerous depictions of scantily clad children and, in at least one instance, only underwear and a tank top. There are various discussions about genitalia and sex, which seem quite vulgar considering the actresses’ ages.
Furthermore, the children’s dancing is extremely suggestive and sexually charged. The choice of camera angles used to capture certain zoomed-in shots of the children’s bodies while dancing is questionable. And in one scene, dancer flashes her breast. According to the opinion, the dancer was played by an adult.
In a worst-case scenario, Cuties is a potentially exploitative endeavor that could cause quite a bit of regret and trauma for the children who will forever have their names and images associated with it. In a best-case scenario, it provides a thought-provoking exercise for parents of young girls navigating our complex modern society.
At least three members of Congress expressed scorn for the film, and one of them took the additional step of referring the film to the Department of Justice via X, the platform formerly known as Twitter, according to a recent 5th U.S. Circuit Court of Appeals opinion. The court barred a Texas child-pornography prosecution of Netflix for streaming the film and affirmed a lower court bad faith finding involving the prosecutor who brought the charges.
“As Netflix frames it, ‘Cuties’ public reception was not entirely positive.’ Indeed, some were downright repulsed by what they saw,” the December 2023 opinion notes.
Grand jury indictment
Two weeks after the film started streaming, Lucas Babin, the district attorney of Tyler County, Texas, and a former actor himself, according to the opinion, sought and obtained the grand jury indictment criminally charging Netflix with promoting lewd visual material depicting a child. Babin’s films include the 2003 comedy School of Rock, staring Jack Black. Babin played Spider, the guitarist who replaced Black’s character, Dewey Finn, in the rock band No Vacancy.
The opinion notes that Netflix did not “run to federal court for protection” and prepared to defend itself in state court. That included a meeting between Netflix, Babin and his first assistant, Pat “Hawk” Hardy, to discuss the indictment. Netflix asked what prompted it, and offered to show proof that the actress who showed her breast in the film was an adult.
“Babin and Hardy declined, expressing no need to look at the proof and instead emphasizing that the ‘gravamen’ of the indictment was the ‘suggestive way’ in which the younger girls danced,” the opinion states.
Weeks later, Netflix pleaded not guilty to the charges in state court. For the next year the case sat idle, according to the opinion. In October 2021, a Texas appellate court in an unrelated case struck down the law Babin used to prosecute Netflix on the basis it was unconstitutional. Netflix presented Babin with a copy of the opinion and asked that he drop the charges.
He refused, according to the opinion, and Netflix scheduled a pretrial habeas corpus hearing. According to Netflix, Babin used the time before the hearing to empanel another grand jury, which issued four new indictments. Babin dismissed the earlier indictment without prejudice.
Netflix then made its federal court filing. The streaming service argued that Babin did not show the grand jury the entire film, only scenes and stills he “personally curated” without context. Babin denied that, according to the opinion, and used prosecutorial discretion as a defense.
The court is “never eager” to find bad faith, particularly with public servants, the 5th Circuit wrote. However, moving from one indictment to four, not showing the grand jury the entire film and not being interested in proof that the breast-baring actress was an adult was persuasive.
In upholding the lower court’s injunction, the 5th Circuit noted that the grand jury found probable cause that Cuties violated the applicable Texas state obscenity law. One might think that would sufficiently satisfy the first prong of what’s known as the Miller test, which focuses on determining if materials are obscene, including consideration of community standards. The test gets its name from the 1973 landmark U.S. Supreme Court opinion Miller v. California.
However, as the 5th Circuit opinion makes clear, the grand jury was shown only “curated clips and images of Cuties, singling out some of the most provocative scenes” that were “stripped of their proper context.”
When dealing with simulated or even animated child pornography previously, matters that weren’t even considered “obscene” pursuant to Miller were still outlawed under New York v. Ferber, a 1982 landmark opinion that upheld a New York law prohibiting people from knowingly promoting and distributing materials that included sexual performances by children under the age of 16.
The restrictions initially contemplated by Ferber and the Child Pornography Prevention Act of 1996 were trimmed back to a certain degree in 2002, when the Supreme Court decided Ashcroft v. Free Speech Coalition. The majority found that parts of the Child Pornography Prevention Act of 1996 targeting expression that did not involve actual minors was unconstitutional.
Allegations of obscenity were the only avenue for Babin to challenge Cuties’ First Amendment-protected status, as the movies does not depict actual child pornography contemplated by Ferber, nor simulated child pornography (without the use of actual minors). Even if it did, that speech would arguably be protected pursuant to Ashcroft.
Courts have struggled with the determinations. For example, here in Oklahoma, our judiciary caused quite a stir when Oklahoma County District Court Judge Richard Freeman ruled the 1979 film Tin Drum violated state obscenity laws due to its portrayal of child sexuality. His decision was based on one scene from the film. The German war drama is about a child who witnesses crimes by the Nazi Party and plays his toy drum loudly when he is upset. “Cowboy” Bob Macy, a notorious district attorney, went so far as to proclaim his intention to prosecute anyone caught with the movie after the court’s ruling.
Several years of legal battles involving the film followed. In 1998, U.S. District Court Judge Ralph Thompson ruled that Tin Drum, in fact, did not contain child pornography or any other material that would violate the Oklahoma state obscenity law. Instead, the film was a work of art protected under both the Oklahoma and United States Constitutions. There’s a 2004 documentary about the matter, titled Banned in Oklahoma.
Perhaps Babin should have watched it. He could have learned a valuable lesson regarding the crossroads between obscenity and morality. Do we need to protect our children? Yes. I firmly believe that. Still, as the attempted prosecution of Netflix illustrates, certain attorneys and various factions of the government will continue to attempt to police morality, even in the face of contrary caselaw.
Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.
The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.