Fifth Circuit slaps down “bad faith” obscenity prosecution

This is fascinating.

An appeals court on Monday blocked a Texas district attorney from pursuing child pornography charges against Netflix for showing the French film “Cuties.”

In a 3-0 ruling, the 5th Circuit Court of Appeals upheld a lower court injunction that put the prosecution on an indefinite hold.

Netflix released the film in September 2020, sparking immediate controversy over its depiction of a teen dance troupe. Lucas Babin, the elected D.A. in Tyler County, Texas, indicted the streamer for “promotion of lewd visual material depicting a child.”

The film does not contain any sex scenes. The underage actors are shown doing provocative dance steps while clothed, and there is also a brief glimpse of an adult woman’s bare breast.

The streamer took the case to federal court, arguing that Babin was pursuing the case in bad faith and had no hope of obtaining a conviction. In November 2022, a federal judge granted Netflix’s request for an injunction, saying he was “unconvinced that ‘Cuties’ contains child pornography.”

Babin appealed to the 5th Circuit, which upheld the injunction on Monday.

“Netflix has shown at this stage that it has been subjected to a bad-faith prosecution, an injury we have already deemed ‘irreparable,’” wrote Judge Don R. Willett. “The balance of equities also favors Netflix. It has an obvious interest in the continued exercise of its First Amendment rights, and the State has no legitimate interest in a bad-faith prosecution.”

Babin’s office and Netflix did not immediately respond to requests for comment.

Babin dropped the initial “lewd material” charge in February 2022, nearly a year and a half after the grand jury indictment.

Netflix had filed a habeas corpus petition challenging the charge, after a ruling in a separate case found the Texas statute violated the First Amendment. Babin then brought four new indictments accusing Netflix of distributing child pornography — a more serious allegation.

The company’s only option in state court would have been to defend itself at trial. So instead, the streamer sought a federal injunction.

Babin was represented by the Texas attorney general’s office in the appeal. The office argued that Babin was exercising appropriate prosecutorial discretion in filing the charges, and that the federal injunction was an improper intrusion on state sovereignty.

I was aware of the movie when it came out and the uproar over it, which mostly centered on some ill-advised marketing materials that were quickly pulled. I also remember that there was a criminal case against Netflix being pursued by the Smith County DA. That was all back in 2020 and I had long since forgotten about it. When I came across a headline about this the other day, I did a little Google news searching to learn more about what had happened since then. Texas Lawyer provided the goods.

Two weeks after the film’s debut on Netflix, DA Lucas Babin became the first, and to date, only prosecutor in the United States to criminally charge Netflix for the film.

In October 2022, counsel for Netflix met with Babin and his first assistant to discuss what “specifically prompted the indictment,” adding if it was the exposed breast scene, Netflix could share proof the actress was over 18 at the time of filming.

Babin declined to see the offered proof, emphasizing the “gravamen” of the indictment was the “suggestive way” the younger girls danced, the opinion states.

The Fifth Circuit took note of the fact that Babin then took the unusual step of allowing the case to languish for 400 days.

Nothing happened with the case in [Smith] County until after Netflix brought to the DA’s attention a new decision from the First District Court of Appeals, Ex parte Lowry (2021), which ruled the criminal statute Babin used was facially unconstitutional, and urged Babin to drop the charge.

Babin refused, and only then did Netflix file a pretrial writ of habeas corpus, arguing the indictment should be dismissed. After months of back and forth communications, Babin agreed to a hearing in March 2022.

Netflix argues, however, that Babin used the delay to empanel a second grand jury and seek four new indictments under a more severe criminal statute.

As occurred in the first grand jury, Babin restricted the grand jury’s view of the film to “only those scenes and stills that he had personally curated and stripped of their proper context,” Willett noted.

“Babin, for his part, denies that he ever had such a ‘plan’ or that he even has the power to ‘convene’ a grand jury,” Willett wrote.

Two days before the habeas corpus hearing, Babin informed Netflix he was dropping the original charge and the hearing was no longer necessary, but he added that separate indictments were pending.


The federal district court issued a detailed, 24-page order finding that Babin had acted in bad faith and that Younger v. Harris (1971)—a precedent case ruling federal courts cannot intervene in ongoing state criminal prosecutions—therefore did not apply.

Babin appealed to the Fifth Circuit.

Netflix alleged Babin acted in bad faith because he retaliated by seeking four new indictments only because Netflix filed a pretrial writ of habeas corpus motion, and because he had no hope of obtaining a valid conviction under the applied statutes of the Texas Penal Code.

The Fifth Circuit found compelling the timing of Babin’s actions. The case sat idle for over a year, and only after the Netflix petition was there “a burst of prosecutorial alacrity.”

“The inflection point—Netflix’s assertion of its First Amendment rights—is difficult to overlook,” Willett wrote.

Willett then noted that Babin claimed the First District’s Lowry opinion had no influence on his decision to drop the indictment, yet admits he was faced with a “constitutional flaw.”

In addition, Babin’s use of multiple indictments on more severe charges is a “hallmark of bad faith under Younger,” Willett said, “a practice we have called ‘upping the ante.’”

Willett cited numerous times how Babin did not show the two grand juries the entire 96-minute film but rather cherry picked parts he considered most compelling.

Many of Babin’s counterarguments relied on his prosecutorial discretion, an argument that courts generally will react to with deference. Such appeals did not help Babin in this case, Willett said.

Willett then cited what the court considered the most compelling evidence of bad faith, the “Jane Doe indictment,” a reference to the adult actress whose breast was exposed.

“Babin expressed no interest in seeing proof that the actress was of age,” Willett wrote. “Nevertheless, Babin sought and obtained an indictment against Netflix for the Jane Doe scene more than 400 days later. … Whatever precipitated the Jane Doe indictment, Babin does not attempt to defend that indictment on the merits—presumably because, as far as we can tell, there are none.”

Ouch. The opinion is here if you want to read it and you have PACER access. The Fifth Circuit remains an irredeemable trash fire, but it’s good to know that even it has its limits. The Wrap has more.

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2 Responses to Fifth Circuit slaps down “bad faith” obscenity prosecution

  1. Charley Hoarse says:

    Had to look but yes, Lucas Babin is the son of Brian Babin, who has infested the Texas 36th Congressional District since 2015 (when Steve Stockman vacated the seat to run for the Senate but ended-up in prison.) It appears that this nut didn’t fall far from the tree, but he’s not nuts, he’s pandering.

  2. Thomas says:

    How much did this puritanical witch hunt cost Tyler County taxpayers?

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