Cutie Indictment: Netflix Charged in Texas For Promoting “Lewd Visual Material”

Tyler County District Attorney Lucas Babin has secured a grand jury indictment of Netflix for promoting “lewd visual material” of a child in its controversial film “Cuties.” As discussed earlier, I found images from the film to be deeply disturbing.  However, the criminal charge in Texas is in my view a violation of the First Amendment and a dangerous return to a period of film censorship and criminalization.

The French movie depicts the life an 11-year-old Senegalese girl as she discovers herself while living in a highly religious family. She befriends a group of young girl dancers and some scenes show highly sexualized dancing and exhibitions.

The criminal complaint charges Netflix with “knowingly” promoting visual material which “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 at the time the visual material was created, which appeals to the prurient interest in sex, and has no serious, literary, artistic, political, or scientific value.”

The charge is based on Texas Penal Code Section 43.23:

(a) A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.

(b) Except as provided by Subsection (h), an offense under Subsection (a) is a state jail felony.

(c) A person commits an offense if, knowing its content and character, he:

(1) promotes or possesses with intent to promote any obscene material or obscene device;  or

(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.

Obscenity is defined under Texas Penal Code Section 43.21:

(1) “Obscene” means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and

(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.

That definition is based on Supreme Court cases like Miller v. California, 413 U.S. 15 (1973). The standard has caused endless confusion, including on the Court itself which has struggled with line drawing. That led to one of the most moronic statements of any justice at any time when Associate Justice Potter Stewart defended his test for obscenity in Jacobellis v. Ohio:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

The statement reflected the abandonment of a bright line test under the First Amendment in favor of this ill-defined and often subjective standard.

The Court has rejected obscenity claims in prior cases like Ashcroft v. Free Speech Coalition where the Court specifically raised the concern that these laws could effectively criminalize a wide array of art and literature from Romeo and Juliet to films like American Beauty: 

“If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.”

That fear seems realized in this Texas prosecution. One does not have to like or support the film to see the obvious danger to such vague standards to free or artistic expression.

Babin declared that “[t]he 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?”  Indeed, it is not the distribution but the definition that is the problem.  The highly subjective standard of what constitutes “literary or artistic value” is dangerously undefined.  Moreover, many of us have criticized the use of “community standards” because it effectively forces the world to adhere to the standard of artistic expression in Tyler County, Texas. Since films are now available on the Internet and stream services. writers and producers can be criminally charged by any community that finds their work to be obscene.

The only good thing about this prosecution is that it might succeed in bringing this case back before the Supreme Court where it might clear the morass that it has created and adopt a bright-line rule protecting free and artistic speech.

Of course, even bots have a hard time with the obscenity determination, as shown this week when Canadian onions were flagged as “overly sexualized” by Facebook. (This is why I never let the kids go near Canadian produce of any kind. God-fearing, morally correct Vidalia onions take the allure out of the Allium genus).

32 thoughts on “Cutie Indictment: Netflix Charged in Texas For Promoting “Lewd Visual Material””

    1. it is the age of the girls that is the disturbing content
      grown adult women can consent to whtever crotch wiggling they want

  1. Freedom of speech, in 1789, meant one could not only freely and openly converse and debate but expose and insult the King and subsequent authorities with impunity.

    The right to keep and bear arms does not make murder legal.

    Freedom of speech does not make verbal assault, defamation or perjury legal.

  2. “Congress shall make no law … abridging the freedom of speech,”

    The Courts have gone overboard in “their” interpretation of the 1st Amendment, acting more like legislators. Freedom of speech does NOT mean freedom of expression. If someone wants to change the Constitution, then amend it as provided therein.

    President Jefferson stated that the greatest danger to our freedoms was judicial tyranny.

  3. JT:

    “Moreover, many of us have criticized the use of “community standards” because it effectively forces the world to adhere to the standard of artistic expression in Tyler County, Texas. (…) (This is why I never let the kids go near Canadian produce of any kind. God-fearing, morally correct Vidalia onions take the allure out of the Allium genus).”

    SCOTUS gave us the community standards rule in the Miller case and everyone knows about it. If you wanna sell kiddie porn in Tyler County, Texas you takes your chances that the good citizens there might find it obscene. Would you prefer the decency “standards” of the modern Left? Not me. They have enough pedophiles to start a whole new Hollywood and make Roman Polanski their king.

    The great rule of commerce still stands: If you wanna sell bananas in the jungle, you have to figure some monkey somewhere won’t like ’em.

    Oh and Vidalia Onions are from nowhere near Canada unless you mean Quebec, Georgia:

    The Vidalia Onion Act says as much.

  4. I would know it when I see it. But I can’t see it unless I watch it in a free First Amendment state. Turley can not put it on the internet.

  5. While this court action could indicate a return to government censorship, what is also apparent isthe concept that our founding fathers signed on to this amendment with the belief that this nation would also be guided by a citizenry with a sane and sound moral core.

    There in lies our dilemma. With the progressive’s push to destroy what was American culture and replace it with the useless and failed concept of multiculturalism; we have found ourselves without the shared underlying agreement of appropriate behavior. We must now resort to moral reasoning via government fiat and its worst ecpression so far has been the “PC” culture and the constitutionally questionable legislation of hate speech.

    Review the downfall of any great culture and you will see multiculturalism and a loss of a common agreed upon system of core moral principles as the main cause.

    1. It goes both ways. In the early 2000’s, the Bush Administration and GOP controlled Congress overturned more than 200 years of American history by adopting torture techniques from the Spanish Inquisition. For the very first time, the United States was condemned for human rights abuses by the International Red Cross [a Christian organization], Amnesty International and other human rights organizations. Bush doctors betrayed their Hippocrates oath (to do no harm) and participated in torture. Bush DOJ attorneys intentionally committed legal malpractice by green-lighting torture. Bush and the GOP Congress even tortured U.S. born citizens on U.S. soil. Since then, more than 90% of Gitmo detainees have been released without charges of any kind, sold to the American voters as the “worst-of-the-worst”.

      Maybe the worst abuses, being uncovered now, is likely hundreds of thousands of innocent Americans blacklisted and harassed by DHS officials, exceeding 6900 consecutive days of abuses – worse torture of innocent Americans than the Bush years.

      Authoritarianism – that violates the U.S. Constitution and betrays America’s oath of office – is perpetrated by some (not all) officials on both sides. Be honest.

      1. While I oppose the use of Torture, contra your diatribe there was nothing unusual with respect to the Bush administration – except the publicity.

      2. It is unclear from your rant. but I am presuming that those you are claiming are currently being tortured by the US are illegal immigrants ?

        Every single one of those is free to exit detention and return home to the country they came from at anytime.

      3. yes and Gina Haskell current head of CIA helped cover it up.

        And it turns out she’s part of the Anti-Trump coalition too. Imagine that.

        Trump was stupid for nominating her for her office.

    2. So let me get this straight, according to you political correctness is bad but you want one agreed upon “system of core moral principles”? That IS political correctness. You are demanding others to abide by your standards, if political correctness means anything at all it is those who demand that everyone abide by YOUR standards.

  6. When this story hit the fan I actually watched the movie.

    Turley leaves out some important points in his description of the film. The little girl is extremely upset because her father has announced he is taking a second wife and her mother will have to provide the wedding reception,. That is what caused her to get involved with the dance group called the Cuties.

    The dance scene lasts for a few minutes at the end of the film. The audience is seen reacting negatively and when the girl realizes what she is doing, she runs off the stage and goes home. In the last scene of the movie, she is seen jumping rope with her friends.

    But if any of you want to blame someone blame Beyonce. That is who the girls are imitating.

    1. This movie could have made that point without sexually exploiting children, although Netflix would probably not have bought it were that the case.

      1. The moralistic framing gloss they put on their disgusting movie was lipstick on a pig

        it’s an old trick of porn producers before the case of Stanley v. Georgia, 394 U.S. 557 (1969) in which the SCOTUS invented a “right of privacy” to possess obscenity– they would put a “scientific” or “social studies” preface to their smut in order to hedge against the timid forms of censorship powers which existed in the states up until that time

        again the most reprehensible reality here is that Silicon Valley makes tens of billions on porn and obscene productions which are protected with the current overblown state of “First Amendment law” and yet a humble sex worker can hardly earn her bread without fear of jail, just for doing sex in private with another consenting adult

        mass media obscenity is a thousand times the threat to public morals that private sex work between adults ever was. and yet the one runs amuck and the other leads to jail

        we need to understand the effect that technology has on our existence. if we continue to misunderstand it then everything will get more and more out of whack and inhuman as we slide along into AI, robotics, and ceaseless digital penetration of our most intimate experiences.

        The churches in America are also at fault because they consistently pick weak targets instead of the Lords of Vice., Stop picking on the neighborhood prostitute and aim your guns at Hollwierd, for once, if you want to have any relevance to the fast slide into oblivion at all!

  7. Censorship – which is illegal in the United States – makes no sense from a “Law & Order” view or from a parental view. Censorship makes all of us less safe and weakens our Bill of Rights.

    Law enforcement can protect children better without censorship. It’s easier to monitor dangerous individuals operating in the broad daylight instead those operating underground. Would you want dangerous hate groups operating in daylight (legally under the First Amendment) or operating in the dark? Are Americans safer by violating the First Amendment?

    21st Century technology on TV’s, cable, internet, etc. grants censoring authority to parents instead of government officials. Parents can decide if their children can view certain things.

    Laws, like the ones in the above article, are so subjective it could be interpreted to ban shows on the Bible or Clint Eastwood Westerns. Authoritarian officials can decide what offends them, not what offends us.

  8. Issues with the film aside, I find myself endorsing the pushback by conservatives.

    The left is out of control and it seems that only a reminder that a sword cuts both ways will deter them from creating their left wing theocracy.

    Sad that the Bill of Rights must be defended by inappropriate measurea.

    1. There is a difference between saying Cuties is repugnant and criminalizing it.

      Don’t watch, boycott Netflix, dump their stock – I will join you.

      But we do not need efforts by the right to criminalize expression – the left is already engaged heavily in that nonsense.

  9. As written, Texas law would outlaw publishing parts of the King James Bible. The Old Testament would literally meet both the letter and spirit of the Texas statute. It would ban broadcasters from airing Biblical shows. Censorship harms everyone and is illegal in the United States.

    1. False, Ashcroft, not even close. The sexual stories in the OT– plenty of them– all have obvious literary and religious value. They do not even come close to the statute as written.

      We are tired of the fake ACLU slippery slope nonsense. The slippery slope argument against public display of religion has been rammed down our throats by the federal courts and ACLU. Meanwhile they have used it in another venue, protecting porn and obscenity, which actually was a slippery slope of its own. Let this camel head in the tent and it will overturn the whole thing. That’s where we are now. Obscenity abounds unchecked.

      And the irony of “cuties” is that they clearly identified the culprit: kids using cell phones to view porn, which sexualizes them.

      It’s the cell phone, a porn vending machine for kids, that needs to be corrected. The software filter systems do not work. There is a need for porn vendors to use age verification. It is totally constitutional and long overdue

      While I am at it, I object to the fact that the porn industry has a fake license to engage in massive prostitution because of the overblown First amendment– but poor sex workers who ply their trade in private acts between consensual adults, are persecuted for it. This is an outrage.

      I am completely serious when i say, a healthy society can and should both dial back the obscenity, and also allow sex workers to lawfully practice paid sex work between consenting adults.

      and we know why. Porn industry includes: google, apple, netflix, and amazon. They are every bit as much porn vendors as “Vivid” — and the biggest cap stocks in the world.
      This is why the poor sex worker faces jail but bezos is the richest man in the world.


      we need to either fix the First Amendment’s legal ridiculous and perverse case law interpretations, or take a look at amending the First amendment itself.

  10. The First Amendment was created to “restrain” government authority to censor obscene or offensive material. Obscenity laws are unconstitutional. Every Texas official from prosecutors to cops to judges, swears a supreme loyalty oath, under Article VI of the U.S. Constitution, to uphold the First Amendment and U.S. Constitution as “the supreme law of the land” – as a condition of employment and retaining governing authority.

    Nanny-state “authoritarianism” is when an official or state legislator perceives themselves as above “supreme law of the land”. If an authoritarian official can violate the First Amendment – that same official can violate gun rights, voting rights, property rights and equal protection rights – since they perceive themselves as above the law and above their oath of office. In this case, the state laws themselves are illegal under the U.S. Constitution and should be overturned. Government officials have no authority to censor First Amendment activity.

    1. The First amendment is now the primary sword that global mass media uses to cut down values, taste, religion, and democracy, anything that stands in their way, which is an effort of government to promote decency. The global mass media wants to subjugate us all into slaves of disordered passions.

      Their financial power means that they outgun small towns like Tyler then thousand to one. It’s almost a lock that Netflix will extract its teat from the wringer on this. But they should not!

      It is not only individuals who can exercise self discipline; social groups and states can exercise it too. Discipline which creates order and order which brings forth beauty and lfe and prosperity.

      Filth brings forth bad habits and bad habits bring ruin. It’s time to quit looking at this phenomenon from the perspective of a bunch of neutered and propagandized fools and approach it with common sense and decency.

  11. Let the state present its argument in court that the film “has no serious artistic value.”

  12. As a huge supporter of free speech I find myself conflicted in this case. If there are obscene scenes involving children, the film maker should pay the legal price.

    1. Din’t watch, boycott netflix, dump their stock

      You have plenty of ways to protest.

  13. Free speech vs Fire in the Theatre = free speech promoting Satan Worshipping Pedophiles, so your argument claims it seems to me. I suggest you try really hard again with your argument because I don’t think the Rednecks out of Jasper Texas are down with a bunch of Child Raping Pedophiles.

      1. Some people have difficulties recognising a single point on a page that is part of a much larger blue print of some one else’s master plan, but I see it clearly.

        BTW: Has your news sources been showing you all the Arrest the last 4 years of high level pedophiles & the rescue of 1000’s very young children? My sources have. One report last week claims 1300 kids were rescued in some sort of child sex slave crap.

        Trump has been arresting the crap out of those ahole Freaks that’s one reason why they hate his guts.

        BTW: CJ Roberts is looking like he has a problem & then there’s Trump.

        1. in case somebody wonders: No, there have not been hundreds or thousands of kids “rescued from child sex slave crap”. It just did not happen.

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