In an excoriating opinion issued Monday, the 5th Circuit Court of Appeals has ruled against a Texas district attorney’s attempt to prosecute Netflix on child pornography charges over the company’s 2020 film “Cuties.”
Tyler County D.A. Lucas Babin subjected Netflix “to a bad-faith prosecution,” the court said in its unanimous 3-0 opinion. This constituted “an injury we have already deemed ‘irreparable.’”
The court also cited First Amendment concerns, saying in part that “the state has no legitimate interest in a bad-faith prosecution. Our precedent similarly establishes that injunctions protecting First Amendment rights ‘are always in the public interest.’ Netflix has therefore shown that it is entitled to preliminary injunctive relief.”
“We end with what we expressed at the beginning,” the decision concludes. “We do not take accusations of prosecutorial bad faith or harassment lightly. Nor, absent extraordinary circumstances, are we inclined to exercise our jurisdiction in a way that interferes with ongoing state-court proceedings. But the injunction is preliminary, our review is deferential, and existing Supreme Court precedent has calibrated the principles of equity and federalism in a way that authorized the district court’s intervention. For these reasons, the judgment below must be AFFIRMED.”
“Cuties,” a drama from French-Senegal director Maimouna Doucouré, is about 11-year-old girls who join a children’s dance troupe and serves, according to the filmmaker and Netflix, as a “social commentary about the negative influence of social media and the hyper-sexualization of young girls.”
The film contains no nudity or sex, but upon its release in 2020, Netflix promoted the film with a poster showing the film’s protagonists in revealing dance attire and striking suggestive poses. Netflix retracted this poster and apologized, admitting it didn’t reflect the actual film’s content. But a loose consortium of right wing extremist elements, including QAnon-linked groups, stoked a backlash over false accusations that the film was a work of child pornography.
Babin filed charges against Netflix in late 2020; in 2022 the company successfully won a federal injunction against them in federal court on the grounds that Babin was acting in bad faith, as he knowingly filed charges he knew were not supported by any evidence. Babin appealed this ruling, resulting in this second, unanimous defeat.
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