Constitutional Law Criminal Law

Texas Indictment of Netflix Over “Cuties” Violates First Amendment, Denigrates Art

There is much wrong with a Texas County deciding to indict Netflix for its distribution of the French film Cuties.

First about the movie – Netflix released “Cuties,” originally titled “Mignonnes,” last month to strong national reaction. The French-language film centers on 11-year-old Amy, a Senegalese immigrant, who becomes a member of a dance group dubbed the “Cuties.” The film highlights what lots of girls (and indeed boys) struggle with during their tween years: Trying to fit in with the cool clique by copying their interests, clothes, and music.

That tried and true storyline has played out on the screen time and time again practically since there has been cinema. Every next generation filmmaker then adapts it to the current time and place. Well in case you haven’t noticed, the current time and place happens to involve the ready availability of pornography on cellphones; the hyper-sexualization of children on TV sitcoms and fashion ads; and the number 1 dance track sweeping the zeitgeist is WAP (standing for Wet Ass Pussy) by Cardi B and Megan Thee Stallion. Now I am no fuddy-duddy and happen to be a big fan of my Dominican/Bronx homegirl Cardi B, but it is a fair discussion to have about the impact all this may have on our young kids.

Other pieces of art have examined this phenomena going back to Larry Clark’s film “Kids”(1995) and most recently HBO’s series “Euphoria.” Both of these works had to confront the issue of dealing with the subject matter while not overly exploiting the subject matter for purely prurient purposes. “Cuties” is no different. It contains two or three potentially exploitative scenes of the dance group doing their routines. But the film’s message is abundantly clear: Young girls are getting sexualized earlier than ever by the current social media content and music and because of that some girls will be pressured into becoming sexualized by their peer group. SPOILER ALERT: In the end the protagonist has an awakening in the middle of their big contest routine, spurred on likely by the audience’s negative reaction to the girls’ performance. She runs offstage and back into the arms of her mother; the film ends with her in age-appropriate attire and hair, jumping rope with a huge smile on her face. Frankly, if a viewer watches this movie and believes it is sexually arousing, they have serious issues and should get into therapy immediately. I agree with many of the movie’s critics that the movie’s use of the actors is in some ways exploitative and the way Netflix marketed it certainly was unwise. The movie overall dealt far more with other issues than with the dance routines, showing the girl Amy’s strict upbringing, her mother’s struggles with an absentee father, returning from Africa with a second, younger wife, an immigrant’s struggles to fit in with a new community, etc. But this article (despite this lengthy intro) is not a film review. Its about whether Netflix should face criminal charges.

There are two types of pornography that receive no First Amendment protection — obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories — at least for adult viewers. (Sometimes, material is classified as “harmful to minors” even though adults can have access to the same material.) After grappling with the obscenity problem in many cases during the late 1950s and early 1960s, the Supreme Court laid out “basic guidelines” for jurors in obscenity cases in its 1973 decision Miller v. California. These include:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” This means that many materials dealing with sex, including pornographic magazines, books, and movies, simply do not qualify as legally obscene. As for “child pornography” the federal child pornography statute doesn’t require a showing of lack of value. And states can have statutes that are narrower than the child pornography exception allows them to be, and Texas seems to be one such state. But it would be a real reach to dub Cuties child pornography and if a court or jury were to do so, many commercially released films depicting children in sexual roles such as Martin Scorcese’s classic Taxi Driver or Louis Malle’s Pretty Baby would also be criminally impermissible.

A Tyler County, Texas, grand jury indicted Netflix two weeks ago for promoting “lewd” visual material “against the peace and dignity of the state.” The one-page indictment states that Netflix promoted, distributed and exhibited material that “depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age” for the “prurient interest in sex.” The document also states that the film held no serious “literary, artistic, political, or scientific value.”

Never to be outdone in phony righteousness, Texas Senator Ted Cruz called on the US Dept of Justice to consider bringing Federal charges, writing to Attorney General Bill Barr that

“The film routinely fetishizes and sexualizes these pre-adolescent girls as they perform dances simulating sexual conduct in revealing clothing, including at least one scene with partial child nudity [a girl is quickly topless while she changes]. These scenes in and of themselves are harmful. And it is likely that the filming of this movie created even more explicit and abusive scenes, and that pedophiles across the world in the future will manipulate and imitate this film in abusive ways.

I really don’t understand the last part. A company should face criminal charges because future criminals may manipulate non-criminal content? Is he speculating that more salacious material that ended up on the cutting room floor will be distributed somehow? Cruz is in fact a Constitutional scholar so he wisely added this caveat:

“Although the First Amendment provides vigorous protection for artistic expression, it does not allow individuals or for-profit corporations to produce or distribute child pornography.

As I stated previously, calling Cuties child pornography or even comparing it to child pornography is a serious stretch even for “Lyin’ Ted” as the President of the United States likes to call him.

This whole indictment reminds me of when Southern states burned Beatles’ albums because of John Lennon’s accurate comment that for some kids they had become more important than Jesus. Politicians like to sow contempt for art by rousing their constituents into thinking the Devil is behind it and that the sanctity of their community is harmed by exposure to it.

But the fact is the Texas indictment is dead on arrival by virtue of language in the statute meant to protect the law from being voided by the First Amendment. The three elements the State must prove to convict someone under the statute follow the guidance from Miller v. California:

(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;

(2) appeals to the prurient interest in sex;  and

(3) has no serious literary, artistic, political, or scientific value.

While Netflix will have a strong defense even as to the first two elements, the State will not be able to get around the last element. The Supreme Court in Pope v. Illinois (1987) has stated that as to this element in a similar statute, that a film’s artistic value is to be judged on a national standard not by the value a local community may place on it. While Cuties has attracted many negative reviews and comments, it has also garnered acclaim, winning the coveted Best Director Award in the international film category at the Sundance Film Festival this year. That fact alone may defeat the indictment under this element.

Indicting this commercially released film under this statute also exposes the State to charges that it should focus on actual child pornography which is still prevalent in Texas. According to the Dept of Justice, Texas ranks 11th in the nation in the number of child pornography offenses. See, DOJ’s Juvenile Justice Bulletin “Child Pornography Patterns” (available at The indictment also stands to act as a potential “chilling effect” on filmmakers and artists who want to encourage a dialogue about these issue by creating art that brings attention to it by copying it or mimicking the subject matter.

The right way to address Cuties is the marketplace (I’m old enough to remember when the GOP wanted to leave everything to the glorious marketplace). Netflix has purportedly lost millions of subscribers due to its distribution of Cuties. Netflix is a private, subscriber-based, paid service. If enough of its subscribers believe it is involved in disseminating immoral or improper material, their cancellations will send the message.

But trying to criminalize the distribution of this film is pandering and does great harm to the First Amendment’s protections of art and dialogue about pressing social issues. It serves to suppress the free expression of ideas and to try and limit how creative people decide to address and portray current important social dilemmas.

Follow me on Twitter @oscarmichelen

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