Woodville is a small town in the forestland of East Texas. With a population of about 2,500, it is home to the Tyler County courthouse, where two circuit judges split their time with other counties.
Woodville is, in other words, an unlikely place for a culture war over a French movie.
But on Tuesday, Lucas Babin, Tyler County’s criminal district attorney, announced that he had indicted Netflix on a charge of distributing lewd content. He said that he had heard about the controversy over the provocative scenes in “Cuties.” The film, about an 11-year old girl who joins a Parisian dance troupe in rebellion against her traditional Senegalese family, premiered at the Sundance Film Festival in January, and began streaming on Netflix last month.
Babin watched it, and decided that it crossed a line, and that he had to act. In doing so, he touched off a high-stakes battle over obscenity in the streaming era, testing whether local standards can be applied to a global entertainment giant.
Babin runs a tiny office — himself, a deputy, and one other attorney. He was elected in March 2018, taking over an office in disarray with a large backlog of drug cases. At the time, Babin was 38 and had been a lawyer for just three years. He had returned home after a career as a fashion model and a soap opera actor in Hollywood and Brazil. He was also the son of Brian Babin, the local Republican congressman, and he easily defeated two more experienced challengers.
Some see the Netflix indictment as a sign that Lucas Babin is angling for higher office.
“This is a really good conservative poster child to say, ‘Look what I did to these evil California movie perverts,'” says Tom Roebuck, an attorney in Beaumont, Texas, who suggested that Babin may run for Congress when his father retires.
Roebuck also predicted that Babin would find himself inundated with paperwork from high-powered First Amendment lawyers, and that the case was unlikely to go anywhere.
“What relief do they plan on getting?” Roebuck asked. “Netflix is fixing to spend heaven knows how much money on this. I don’t know if they have the resources in that county to defend it.”
Netflix was charged under a Texas statute prohibiting distribution of lewd material of underage children that also “has no serious literary, artistic, political, or scientific value.” The maximum penalty for a corporation convicted of such a felony in Texas is a $20,000 fine — a pittance to a $200 billion company.
In theory, the prosecutor could also seek a penalty of twice the streamer’s profits from the film, if that figure could be determined.
If Netflix were to lose the case, it would effectively grant local prosecutors a veto over the streamer’s content offerings. That is far more significant than a small fine, and Netflix is thus unlikely to seek any sort of plea bargain.
Mark W. Bennett, a Houston attorney with extensive experience on free speech cases, predicted that the streamer will prevail.
“I think it’s going to cost them some money to defend, but I don’t think they get convicted of the charge,” Bennett said. “The Tyler County D.A. has to prove, in the face of whatever resistance Netflix puts up, that ‘Cuties,’ taken as whole, does not have serious artistic value. That’s a no brainer. He’s not going to be able to prove that. It won an award at Sundance.”
The key Supreme Court precedent is Miller v. California, a 1973 case that set the standards for obscenity. The determination of whether a work has “artistic value” is not tied to the community standards of rural Texas, but rather to the entire country.
“I think a jury watching the whole film and hearing from film experts is going to see it has serious artistic value,” Bennett said, adding that he believes that Babin is appealing to political sentiment. “He’s playing to the QAnon crowd.”
Other experts were not quite so confident that a jury would acquit, however. The feature directing debut of Maimouna Doucouré contains a few scenes that are deliberately uncomfortable, as the camera lingers over preteen girls gyrating and twerking. The girls are fully clothed, and the message of the film is clearly disapproving, but that may not matter to jurors.
“I don’t think it’s open and shut,” said Amanda Peters, a former prosecutor and a professor at the South Texas College of Law in Houston. “It’s always in the eye of fact-finder… We can’t deny that a lot of people feel this film takes it too far.”