I previously wrote a column opposing calls by GOP members for a federal investigation of Netflix and the movie “Cuties” (or Mignonnes). Now, federal Judge Michael Truncale (left) has issued a preliminary injunction in the Eastern District of Texas to stop the prosecution of the company. The move is relatively rare since the Younger abstention doctrine ordinarily shields state prosecutions from such interventions of federal courts. However, the court highlighted deep flaws in the prosecutorial case.

Judge Truncale gives a detailed account of how the prosecutors were “repulsed” by the sexualization of children in the movie, which began streaming Cuties on September 9, 2020.

Cuties is “the story of Amy, an eleven-year-old Senegalese immigrant caught between cultures: her devoutly Muslim family and the “Cuties”—a self-named dance group of Amy’s peers who have their hearts set on trying out for and performing at a big dance competition.” The film contains scenes that are jarring or offensive for many viewers as the Cuties perform provocative dance routines.

The case is interesting due to the Younger doctrine, which generally bars federal courts from enjoining ongoing proceedings in state courts. Congress codified this rule in the Anti-Injunction Act, 28 U.S.C. § 2283:

“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The court, however, notes that the rule is meant to prevent “freewheeling intrusions of state proceedings would offend the notions of comity and federalism.” It is not an absolute rule.

Under the Younger abstention doctrine, federal district courts are expected to decline jurisdiction when: “(1) the federal proceeding would interfere with an ‘ongoing state judicial proceeding’; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has ‘an adequate opportunity in the state proceedings to raise constitutional challenges.’” Bice v. La. Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).

However, the court noted that there are exceptions when (1) “the state-court proceeding was brought in bad faith or to harass the federal plaintiff”; (2) “the federal plaintiff seeks to challenge a state statute that is ‘flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and against whomever an effort might be made to apply it’”; or (3) “where other ‘extraordinary circumstances’ threaten ‘irreparable loss [that] is both great and immediate.’” Gates v. Strain, 885 F.3d 874, 880 (5th Cir. 2018) (quoting Younger, 401 U.S. at 45).

The court clearly views this prosecution as brought in bad faith, as claimed by Netflix:

Section 43.25 [under which Netflix is prosecuted] is a child pornography statute, but the Court is unconvinced that Cuties contains child pornography. In all of Cuties, there are no sex scenes and there is only one scene that contains nudity. In that one scene, the Cuties are watching a video on one of their phones when a dancer in the video flashes her breast for a fraction of a second. But that dancer (“Jane Doe”) was not a minor. Therefore, her nudity cannot constitute child pornography.

Mr. Babin received notice—well before he sought the New Indictments—that Jane Doe was over eighteen at the time of filming. On October 9, 2020, shortly after Netflix received service of the First Indictment, Netflix’s counsel met with Mr. Babin and Mr. Hardy to discuss the case and the indictment. Trying to determine what specifically prompted the indictment, Netflix’s counsel volunteered that “if the issue were the fleeting sight of a woman’s breast, that they should know that the woman was over eighteen and thus not a child when that scene was filmed.” Netflix’s counsel also offered to provide proof that Jane Doe was over eighteen when the scene was filmed, but Mr. Babin and Mr. Hardy denied that the indictment involved the exposed breast and expressed no need to see such proof. Despite Netflix volunteering this information, Mr. Babin later obtained the New Indictments under Section 43.25—one of which is for Jane Doe’s nudity.

The court expresses grave doubts that the charges were brought with “any hope of obtaining a valid conviction.” Indeed, Judge Truncate suggests that evidence may have been withheld from the grand jury:

The clips of this scene that were on Mr. Babin’s grand jury thumb drive reveal, however, that he did not provide this relevant information to the grand jury. Instead, at most they saw a young girl in underwear and a tank top, by herself, convulsing on the floor. Mr. Hardy’s deposition testimony regarding this scene is also enlightening. He referred to this scene as “a little girl . . . being sprayed and doing all kind of nasty stuff.” [Dkt. 70-12 at 21:22–25]. When asked, “What did you think was happening in the scene where she’s being sprayed?”, Mr. Hardy answered, “She looks like she was humping the ground to me.” Id. at 21:24–22:2. When asked if he thought anything else occurred in that scene, he simply responded, “No, sir.” Id. at 22:3–4. The Court is skeptical at best that the grand jury received all of the relevant information regarding that scene if Mr. Babin’s First Assistant District Attorney did not.

Thus, the Cuties are not too Younger but the prosecutors were too eager in this case.

Here is the opinion: Netflix, Inc. v. Babin