Netflix charged with promoting lewdness in ‘Cuties.’ So what happens next?

The culture war around “Cuties” went next level last week when a Texas grand jury brought criminal felony charges against Netflix.

Tyler County District Attorney Lucas Babin announced in a statement on Oct. 6 that the streaming giant had been indicted for “promotion of lewd visual material depicting a child.”

Texas Rangers served Netflix, Inc. with legal papers on Oct. 1 for streaming the French coming-of-age film, which centers around an 11-year-old French-Senegalese girl who joins a dance group known as “The Cuties.”

The case arising in a remote East Texas county (population: 21,766) has stirred sensational headlines, First Amendment issues and even more questions.

“I had to look up where Tyler County is,” says Thomas Leatherbury, director of the First Amendment Clinic at Southern Methodist University in Dallas, who calls the legal proceedings a “test case” and “very unusual.”

Let’s break down the burning questions around the “Cuties” case:

‘Cuties’ controversy: Why the Netflix film became a combatant in the culture war

Why is ‘Cuties’ controversial?

“Cuties” earned strong reviews and a director’s award at Sundance Film Festival. Director Maïmouna Doucouré told Time the film is a social commentary and part of the battle against “hypersexualization of children.”

Backlash kicked in around the movie in August, when Netflix released promotional material depicting the young cast in suggestive dance poses with bare midriffs and short shorts. Netflix pulled the image after outcry, saying it was “deeply sorry” for the “inappropriate” artwork.

Critics made #CancelNetflix a trending hashtag and launched a “Cancel Netflix” petition on Change.Org.

Predominately Republican politicians have expressed outrage. U.S. Rep. Brian Babin (R-Texas), whose son is the Tyler County district attorney, called “Cuties” “pornography,” and Sen. Ted Cruz (R-Texas) said it “sexualizes 11-year-old girls.’ ” Both urged U.S. Attorney General William Barr to investigate.

Netflix has stood its ground. ” ‘Cuties’ is a social commentary against the sexualization of young children,” the company told USA TODAY in a statement after the indictment. “This charge is without merit and we stand by the film.”

Why indict a corporation like Netflix?

Though Netflix co-CEOs Reed Hastings and Ted Sarandos are named in the Tyler County indictment for authorizing or “recklessly” tolerating “Cuties” promotion, the DA has filed the charge against the California-based corporation.

Duncan Levin, a former federal prosecutor and now managing partner at New York legal firm Tucker Levin, says charging a corporation is not uncommon and sends a message. “You’re basically saying the company is so imbued with this type of behavior that the entire company is responsible,” he says.

The charge is a state jail felony in Texas; a corporation convicted of a felony would not receive jail time but could face fines up to $20,000, according to Texas penal code. There could be more penalties if the court determines the company benefited financially from the film. But it’s a drop in the bucket for a $200 billion company like Netflix.

“Usually obscenity prosecutions are designed to make a point, they’re not usually about the level of punishment,” says Rusty Hardin, a former prosecutor and high-profile Houston defense attorney,

Who is the district attorney pursuing the case?

Babin, 41, is a lawyer, one-time model and actor who appeared as Spider in “School of Rock” and played Rocky on “The Young and the Restless” (2006 to 2007). He’s also seen as a fashion photographer in Paris Hilton’s 2006 “Stars Are Blind” video.

Babin, who was elected to the district attorney’s office in 2018, said in his statement that he had heard about “Cuties” and watched the movie, and felt it crossed the line.

“As a district attorney, I have to sift through countless cases and make calls every day on how to keep our communities safe,” DA Babin wrote in his statement. “The legislators of this state believe promoting certain lewd material of children has destructive consequences. If such material is distributed on a grand scale, isn’t the need to prosecute more, not less?”

How is the case likely to go down?

Babin, who noted in his statement that the DA’s office “will not comment on the merits of this case,” made clear he’s taking a principled stand.

“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,” he wrote.

Levin calls the case politically motivated and says it was a surprise to legal observers “because it’s so clearly not criminal behavior by Netflix.” He believes the film won’t be deemed obscene, and thus not protected by the First Amendment.

“Nothing about this film should trigger any criminal statutes in Texas or anywhere,” says Levin. “This is an award-winning expression of art – there’s just no straight-faced argument that this is somehow obscene material.”

Hardin says the district attorney is going to have a difficult task. “They are going to have to show the main purpose for this film was to appeal to a prurient interest in sex and that it has no literary or artistic value. And they are going to have to prove that beyond a reasonable doubt,” he says. “I just don’t see how you get there, quite frankly.”

But Leatherbury predicts this will move to a court case (no hearings have been set) that won’t end on a district level.

“The district attorney is obviously willing to prosecute and put resources into it. And there are great principles involved from Netflix’s standpoint as well, they will fight with good attorneys,” Leatherbury says. “It’s a case that certainly is not likely to end in the trial court either, as there will be constitutional issues raised. It’s going to be an interesting case to watch.”

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