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).