A grand jury in Texas has indicted Netflix on child pornography charges due to the film "Cuties". The Federalist. The film, described as a coming of age film, was harshly criticized due to the way it portrayed young children in an extremely sexualized way. The charges say that Netflix "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.” If convicted the CEO's of Netflix, Wilmot Reed Hastings and Theodore Anthony Sarandos could face between 180 days and 2 years in jail.
Netflix, Inc. indicted by grand jury in Tyler Co., Tx for promoting material in Cuties film which depicts lewd exhibition of pubic area of a clothed or partially clothed child who was younger than 18 yrs of age which appeals to the prurient interest in sex #Cuties #txlege pic.twitter.com/UJ1hY8XJ2l
— Matt Schaefer (@RepMattSchaefer) October 6, 2020
My Comment:
When I first covered the backlash against Cuties I refused to post any pictures or clips from it and it seems like that is a good decision. I had argued that even if courts were to rule that the film was not in fact child pornography the clips and photos from the movie could be considered that. But it turns out that a grand jury found that the film itself was as well.
Do I support this indictment? I think so. It's pretty clear what the makers and distributers were trying to do with this film. It reminds me of the old Hays code movies that used faux outrage over graphic material to include the material. Even if the director wasn't planning for this to be a soft core child porn movie, that is certainly the way that Netflix advertised and promoted it.
However, it's going to be an extremely hard case to prove. Here's the law in Texas that Netflix is charged under:
(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:
(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.
Section 1 is going to be very easy to prove. It's pretty obvious from the clips and pictures I have seen that they were indeed showing the genitals or pubic area of children under the age of 18. I don't think anyone is seriously arguing that didn't happen.
But sections 2 and 3 are going to be much more difficult to prove. 2 has a better case as it seems clear to me at least that the film was shot in a way to "appeal to the prurient interest in sex". It was filmed like a rap video at best and that seems to me to be a very sexualized environment. And I don't think it's arguable that you could have made the same basic film without the most graphic scenes. But will a jury agree?
Section 3 is the big sticking point though and it's where I think that the prosecution will fall flat. Netflix will obviously argue that Cuties does in fact have artistic value. Though the movie itself, by all accounts, isn't very good even excising the most graphic scenes, it's still a movie. And they will argue that the movie was speaking out about the very thing that it is promoting, the sexualization of children. Given that the Hays Code exploitation films were protected this way and that other films with underage nudity have been protected this way as well, I can't see this case being a win for the prosecution. Even if a conviction happens it will almost certainly be overturned on appeal.
Still, even if the prosecution fails, which is very likely, this is going to hurt Netflix. Not only will they have to pay for their own defense, it's always going to be out there that Netflix was indicted on child pornography charges. That is going to hurt their image, hurt their subscriber numbers and may even lead to filmmakers looking for a different way to distribute their products. And it may encourage other streaming companies to avoid these kinds of films in the future.
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