Future Tense

Texas Grand Jury Indicts Netflix Over Cuties, Doesn’t Understand First Amendment

Four tween girls stand around, as one puts her finger in her mouth and another puts her hands on her chest.
Cuties. Netflix

On Wednesday, Oct. 28, at noon Eastern, the Free Speech Project will host an hourlong online event titled Do We Need a First Amendment 2.0? For more information and to RSVP, visit the New America website.

When I was finishing up law school in 1990 at the University of Texas, there was nothing I wanted more than to clerk for Judge Marvin Odell Teague. As a member of the Texas Court of Criminal Appeals, Teague produced more than 1,000 of the best-written, funniest opinions I’ve ever read. His barbed dissents had the flash of the late Justice Antonin Scalia’s: “Today, we witness the bastard child that two judges of this Court gave birth to in Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1982), reaching puberty,” he remarked in one 1984 case. “It will be most interesting to see what the bastard child looks like when it reaches full manhood.” He was dissenting in that case, he explained, because “I am unable to agree that this Court should buy the damaged and unrepairable merchandise the State is selling in this cause, namely, appellant’s confession.” Which is to say, Teague was more spiritually generous than Scalia—and almost always more pro-defendant. I won an interview with him, which was vastly entertaining in itself, but didn’t get the spot. He died less than a year later, at the far-too-young age of 57.

In an alternate universe, Teague—born just a few months after Ruth Bader Ginsburg in 1933—might have lived long enough to hear an appeal of Texas’ prosecution, announced just this week, of Netflix for its streaming of the French film Mignonnes (Cuties in the U.S.). Netflix was charged with “promotion of lewd visual material depicting a child” by a grand jury at the direction of Tyler County District Attorney Lucas Babin. Babin’s biggest previous claim to fame is his portrayal of the invariably bare-chested guitarist “Spider” in fellow Texan Richard Linklater’s The School of Rock. In the Linklater film, child actors playing precocious prep-school student musicians—who regularly upstage star Jack Black—share more than a few traits with the entrepreneurially competitive 11-year-old protagonists of Cuties.

This case reminds me of Teague because it certainly would have tickled his funny bone. More importantly, had the Cuties case somehow magically reached his court, he would have pointed out that the key constitutional distinctions among federal obscenity law, federal child pornography law, and Texas’s localized attempt at a child pornography statute had been settled for years. He would almost certainly have concluded it should be dismissed. That’s because the legal reasoning behind this indictment is so tenuous that even in today’s Texas, the Cuties prosecution is likely to be dismissed.

To understand why, let’s start with a quick lesson on the First Amendment and obscenity. Through much of the 20th century, there was little coherent First Amendment theory to explain why it was appropriate to criminalize the possession, creation, or sale of “obscene” content. These days we think of “obscene” as meaning something like “pornographic,” intended to be arousing, but comedian Lenny Bruce (among others) was prosecuted for his sexually frank and profane language in his stand-up performances. Yet while Bruce’s jokes may have offended many people, they weren’t pornographic. There’s no doubt at all that Bruce’s work would be understood by all First Amendment lawyers today as entirely constitutionally protected.

What’s more, even pornography itself is understood to be presumptively protected under the First Amendment, thanks to the Supreme Court’s decision in Miller v. California (1973). In Miller, the Supreme Court outlined a three-part test for what kind of expressive work qualifies as prosecutable obscenity:

1) Would the average person, applying contemporary “community standards” find that the work, taken as a whole, appeals to the “prurient interest”? (That last term is code for unhealthy sexual arousal—prurient comes from the Latin word for itch.)

2) Does the work present “in a patently offensive way” any “sexual” or “excretory” behavior that is specifically defined as potentially obscene by applicable state law?

3) Does the work, taken as a whole, lack any “serious” artistic, literary, social, or scientific value?

If the answer to all three is “yes,” then it can be classified as obscenity—a category of content that’s expressly not protected by the First Amendment or other free-expression protections. After Miller, a stand-up comedian who told the same kinds of boundary-testing jokes as Lenny Bruce mostly didn’t have to worry about prosecution for obscenity. This opened the door for transgressive comedians from George Carlin to Dave Chappelle, not to mention Sarah Silverman and Amy Schumer. After the Miller case, the test for obscenity centered on sexual acts. Or, uh, excretory ones.

More important, the Miller test says that works are protected by the First Amendment if they have what could be characterized as “serious literary, artistic, political, or scientific value” when the works were each “taken as a whole.” Those two phrases are key, and the second phrase is so important that it appears in two different parts of the Miller three-part test.

What Miller didn’t squarely address is the problem of child pornography. Federal law defining that kind of unprotected content developed along a path different from state and federal obscenity law. For one thing, children can’t consent to participate in the making of visual pornographic content. The law also understands that the government has a heightened interest in protecting children and, accordingly, has heightened powers to do so. Because the governmental interest in protecting minors is so compelling, child pornography (defined as visual depictions of actual children’s sexual or “lascivious” behavior using actual children to produce the images) is illegal under U.S. law—and unprotected by the First Amendment—even if there might be some kind of “serious” value to the depiction “taken as a whole.”

Material doesn’t have to be visual to be considered “obscene”—it could be a sound recording or textual, for example, although most efforts to prosecute obscenity in the modern era tend to focus on visual works. But to qualify as child pornography, the content in question has to be visual, has to have been produced using an actual child, and can’t be saved by virtue of having some kind of “serious” value.

This raised some issues for director Adrian Lyne, whose 1997 adaptation of Lolita seemed to run some risk of technically meeting at least some of the elements of child-pornography offenses. (The film’s distributors released Lolita in Europe first, and then, when it seemed clear that the film didn’t drive even its worst critics to fits, dared to release it in the U.S.)

Fast-forward to the present day and to Netflix’s streaming of Cuties. I hadn’t seen the film before the controversy about it erupted, but I had caught wind of some of the manic rage about the film (whipped up by, among others, Sen. Ted Cruz, who has never met a moral panic he couldn’t promiscuously embrace). Many commentators (few if any of whom had seen the actual film “taken as a whole”) had been needlessly triggered by Netflix’s own publicity for Cuties, which many saw as exploitatively “sexualizing” the five girls at the center of the film’s narrative.

At this point, it’s worth underscoring a couple of important points. First, the critics were right to condemn Netflix’s Cuties publicity material as exploitative—it’s hard to describe it any other way. The most generous explanation for that lousy set of publicity choices would be to suppose that the people crafting the posters, etc., thought the images would be more disturbing than (sorry!) “prurient.” To me, however, they come across as both.

The second point, lost in the shuffle, is that Netflix quickly wised up and recognized it had blundered. It apologized for its dumb posters and publicity. Still, nothing bad ever gets to happen in 2020 without being made a bit worse by this fraught American moment. Netflix’s apology not only couldn’t halt the already galloping moral panic about Cuties; it couldn’t even slow it to a canter. Legislators and other public officials started signing group letters demanding that U.S. Attorney General William Barr prosecute Netflix for child pornography. In a rare but nonetheless respectable show of restraint, the A.G. has forborne—so far—to indict the streaming juggernaut.

Barr may reasonably believe his hands are too full, given the demands of his primary client, to take on the kind of speculative prosecution of Netflix that Cruz demands. And such a prosecution under the federal statute absolutely would be speculative, even with the full force of the Department of Justice behind it. That’s because, whatever you may think of Cuties, it doesn’t meet the elements of child pornography as defined by federal statutory and case law. That law prohibits the use of minors to create visual depictions of “sexually explicit conduct.” The statute goes to great lengths to define “sexually explicit conduct” so completely that the definitions are themselves … well, explicit.

If you watch Cuties, you won’t see even the teeniest tiniest glimpse of any of the stuff on that list of definitions.

So how is it that District Attorney Lucas “The Artist Formerly Known as Spider” Babin thinks he can prosecute Netflix in Tyler County, Texas (population roughly 22,000)?

The answer, as Judge Teague would tell you if he were still with us, is the Texas Penal Code, which has its own child-pornography statute. In a press release announcing the grand-jury indictment of Netflix in Tyler County, Babin expressly refers to TPC Section 43.262, which prohibits “Possession or promotion of lewd visual material depicting child.” Like many state statutes that state legislatures crafted to provide their law enforcement agencies with state-law equivalents of federal criminal laws, Section 43.262 sounds a few notes that we’ve seen in the federal child-porn law. The content has to be visual, for example. More importantly, the Texas law specifies that prohibited “visual material” meet other requirements. To wit, such material is illegal if it:

1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created; [Hey, this sounds like child-porn law all right!]

2) appeals to the prurient interest in sex;  [Wait, “prurient interest,” isn’t that a term from obscenity law?] and

3) has no serious literary, artistic, political, or scientific value. [Texas has imported the “serious value” escape clause of the Miller test!]

Three strikes and you’re out, Spider. Cuties doesn’t include “lewd exhibition of the genitals” even of a clothed child, so far as I can tell. What’s more, the film doesn’t appeal to the prurient, “itchy” interest in sex specified by the Miller test. Instead, the viewer’s dominant feeling is not sexual arousal but a combination of discomfort at seeing these young girls be pushed (or pushing themselves) into mock-sexual poses as they dance—together with sadness and sympathy that the cultures they’re embedded in (a combination of immigrant Senegalese Islamic culture for the film’s protagonist, Amy, and the sex-drenched secular media culture of modern Paris) aren’t recognizing their needs and protecting them.

Even if the elements of “lewd exhibition” and “prurient interest” could be found somewhere in Cuties, the hard fact, as Teague surely would have pointed out, is that the film is the very definition of a work that, taken as a whole, has serious artistic and political value. (It’s definitely a better film than Lyne’s version of Lolita.)

That, at least, was my takeaway when I sat down Wednesday morning and screened Cuties in my home office in preparation for researching and writing this piece. I’m not yet sure whether I think it’s a great film, but, if I had to bet on how it will be regarded decades from now, I’d place my money on the greatness square. I’m still haunted by the beginning of the film—a closeup of Amy frozen and crying on stage, an image that recurs near the very end of the film. By the end we understand that she has been betrayed by both of the cultures that should have cared for her as the child she is as well as for the woman she’s becoming. But we also see, finally, a moment Amy seizes to hold on to her happiness in childhood for just a little while longer, a beautiful sequence in which she jumps rope with other immigrants in a Paris street, jumping higher and higher and smiling. We see that despite the tangled difficulties of the Cuties narrative, there’s something in Amy herself that refuses to be confined by that narrative and that still holds on to the possibility of joy in her present as a child and her future as a woman.

In short, Cuties does what the best movies do, which is show us something most of us have never seen before, helping all of us understand what we are seeing better.

Well, almost all of us. As Judge Teague might have put it, the jury’s still out on “Spider” Babin.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.