Texas D.A. Appeals Order Blocking Him From Bringing Child Porn Case Against Netflix
A federal judge issued an injunction last month that blocks a Texas prosecutor from bringing child pornography charges against Netflix for distributing the French film “Cuties.”
But the prosecutor, Tyler County District Attorney Lucas Babin, is not giving up.
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In a notice filed on Monday, Babin indicated that he will appeal the ruling to the 5th Circuit Court of Appeals.
The fight over “Cuties” began more than two years ago, when Netflix began streaming the film in the U.S. The film tells the story of a 11-year-old Senegalese immigrant girl who joins a dance troupe that performs provocative routines. The film sparked an outcry in the U.S., with some politicians charging that the child actors had been sexually exploited.
Babin, a former soap opera actor and the son of a local congressman, obtained a grand jury indictment against Netflix for allegedly promoting lewd visual material of children. The indictment raised the prospect that Netflix could be forced to defend itself at a criminal trial in tiny Woodville, Texas (population 2,403).
Babin brought the indictment under a 2017 Texas statute that criminalized the lewd exhibition of “the genitals or pubic area of an unclothed, partially clothed or clothed child.” That law went beyond the state’s child pornography statute, which applied only to unclothed children.
In October 2021, a Texas appeals court struck down the statute. In that case, a defendant argued that the statute would criminalize teenage Instagram influencers who post “provocative, but clothed, pictures of themselves online for their millions of followers.” The First Court of Appeals agreed that the statute was unconstitutional and overly broad. The Harris County D.A.’s Office has since appealed that ruling to the Texas Court of Criminal Appeals.
In response to the ruling, Netflix filed a habeas corpus petition in November 2021, arguing that the Tyler County indictment should be thrown out. On the eve of a hearing on the petition in March, Babin dropped the indictment and obtained four new indictments for alleged violations of the child pornography statute.
Netflix then asked a federal court to intervene to halt the prosecution, arguing that Babin was acting in bad faith and was violating the First Amendment.
At a hearing in September, U.S. District Judge Michael Truncale had a discussion with Babin about whether an image from the film actually qualified under the child pornography statute as a depiction of a child’s genitals.
“Maybe my eyes aren’t as good as they used to be, but isn’t that a panty as opposed to a genital that we see, or am I missing something?” the judge asked.
Babin responded, “No, your Honor. That’s — she is wearing — it looks like these shorts.” But, Babin argued, it should be up to jurors to decide whether that was a violation of the child pornography law.
On Nov. 14, Truncale granted a preliminary injunction, finding that Netflix was likely to prevail on the merits of its argument at trial. In the ruling, Truncale found that Babin had brought the child pornography charge “with no hope of a valid conviction, and in retaliation for Netflix exercising its constitutional rights.”
Netflix had argued that Babin brought the child pornography charge in retaliation for Netflix exercising its right to file a habeas petition on the prior charge.
On Monday, Babin filed a notice of appeal to the 5th Circuit and also asked to stay the district court proceedings pending the appeal. Truncale granted the stay and canceled a Jan. 30 date for a bench trial in the case.
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