Netflix, Inc. v. Babin

Cuties is a coming-of-age film, intended to criticize the hypersexualization of pre-adolescent girls. Some have praised the film. But others have lambasted it, accusing the film of showing minors in sexually suggestive situations. And when Neflix decided to stream the divisive film, it felt the brunt of the backlash. 

That backlash included the ire of a Texas district attorney, Lucas Babin. But Babin didn’t just criticize Netflix. He sought a criminal indictment against Netflix under a 2017 Texas law criminalizing “lewd exhibition” of a minor. The Texas courts struck down that law in short order. 

But when Netlifx challenged the constitutionality of Babin’s prosecution under that law, he didn’t relent. Instead, he sought four more indictments against Netflix under Texas’s child pornography law. And he sought at least one of those indictments claiming Cuties contained nudity–even though he knew the only nudity in Cuties is the fleeting glance of an adult woman’s breast. 

No other prosecutor in the United States tried to indict Netflix for child pornography– after all, no reasonable prosecutor would believe that Cuties comes close to child pornography. 

When prosecutors abuse their power and prosecute protected speech for political or personal reasons, that’s bad faith. So it is imperative that federal courts exercise their jurisdiction to stop those bad-faith prosecutions in their tracks and uphold the First Amendment. That’s exactly what a federal district court did to Babin’s indictments, granting an injunction to stop Babin’s bad-faith prosecutions of Netflix. The district court looked at several facts to find bad-faith, including Babin being the only prosecutor nationwide to target Cuties and filing for more indictment after Netflix exercised its constitutional right to challenge Babin’s original indictment. 

But now, Babin has appealed the injunction to the U.S. Court of Appeals for the Fifth Circuit. FIRE filed a “friend-of-the-court” brief urging the Fifth Circuit to uphold the injunction and confirm that federal courts should consider a wide range of facts that can reveal a bad-faith state prosecution. When state prosecutors abuse their power to prosecute protected speech for political ends, a speaker like Netflix shouldn’t have to find a “smoking gun” of bad faith to ask a federal court to uphold the Constitution.