WOODVILLE, Texas — A coalition of broadcasters, journalists and publishers this week told a Fifth Circuit appeals panel that Tyler County District Attorney Lucas Babin acted in bad faith and abused his powers by manipulating a Texas grand jury into indicting Netflix for promoting the award-winning film “Cuties.”
As XBIZ reported, the religious conservative Texas prosecutor — also a former fashion model and actor who appeared in movies like “School of Rock” and “Brick” — indicted California streaming company Netflix in October 2020. Babin alleged that “Cuties,” a French coming-of-age art house film about multicultural youth, “appeals to the prurient interest in sex and has no serious literary, artistic, political or scientific value.”
Supporting Netflix, the broadcasters, journalists and publishers told the Fifth Circuit panel that lifting the federal injunction currently stopping the Republican DA’s case against Netflix would “unleash a flood of chilling effects on protected speech,” legal news site Law 360 reported.
Earlier this year, Babin appealed to the Fifth Circuit to reject the injunction. The group defending the injunction, Law 360 reported, includes more than two dozen companies and organizations, among them Fox Television, Penguin Random House, the Center for Investigative Reporting, the Association of American Publishers, the Cato Institute, the News/Media Alliance and the Motion Picture Association.
The DA, the briefing noted, acted in bad faith by manipulating the grand jury in Tyler county — a “deep red” area outside of Houston, close to the Louisiana border — and then by “derailing the company’s attempt to get the prosecution thrown out by hitting it with tougher child porn charges in a second indictment,” Law 360 reported.
“Without the ability to seek redress for baseless prosecutions in federal court, critical constitutional rights would be curbed, and a vast array of speech would be chilled for fear of being similarly prosecuted,” the group argued.
The original October 2020 indictment appears politically motivated, with Texas State Representative Matt Schaefer (R) tweeting at the time that Netflix was being indicted “for promoting material in ‘Cuties’ film which depicts lewd exhibition of pubic area of a clothed or partially clothed child who was younger than 18 yrs of age which appeals to the prurient interest in sex.”
Babin released a statement noting, “After hearing about the movie ‘Cuties’ and watching it, I knew there was probable cause to believe it was criminal under Section 43.262 of the Texas Penal Code.
“The legislators of this state believe promoting certain lewd material of children has destructive consequences,” Babin argued. “If such material is distributed on a grand scale, isn’t the need to prosecute more, not less? A grand jury in Tyler County found probable cause for this felony, and my job is to uphold the laws of this state and see that justice is done.”
This week, the Foundation for Individual Rights and Expression (FIRE) also filed a brief supporting Netflix. J.T. Morris, senior attorney at FIRE, told Law360 that Babin was the only U.S. prosecutor to file a criminal case against Netflix for carrying ‘Cuties’ and that “federal courts have to step in to curb such abuse of power.”
“Cuties,” originally titled “Mignonnes,” is a 2020 French film written and directed by Maïmouna Doucouré, a Senegalese-French filmmaker. The movie is inspired by Doucouré’s youth and centers on a Senegalese-French girl from a strict Muslim family. Amy, who is the main character and 11 years old, becomes interested in her neighbor’s dance group, called Cuties.
The film is critically acclaimed, and — despite the assessment of DA Babin and the Tyler County grand jury — its artistic value has been attested to by nominations at the Berlin International Film Festival and the Sundance Film Festival, where Doucouré won a directing prize.
