Attorneys Discuss Netflix’s ‘Cuties' & Why It Matters for Adult

TYLER COUNTY, Tex.—Religious conservatives have been chomping at the bit for the Justice Department to restart prosecutions against creators of sexually explicit content, and they'd hoped they'd found their champion in Donald Trump, who in April of 2016, as he was campaigning for the presidency, signed anti-porn group Enough Is Enough's "Children's Internet Safety Presidential Pledge," wherein he promised to "aggressively enforce existing federal laws to prevent the sexual exploitation of children online, including the federal obscenity laws, child pornography laws, sexual predation laws and the sex trafficking laws." The result? Zero. Zip. Nada. So one can only imagine how happy those censor types are that Texas has indicted Netflix for allowing the world to see the awarded French film Cuties. Actually, no imagination is necessary. Just yesterday, the pro-censorship Parents Television Council sent an email lauding the Texas action, stating, "As you know, the PTC has been engaged in a fierce battle to hold Netflix publicly and legally accountable for its grotesque corporate practice of sexualizing children for the purposes of entertainment. This is a HUGE step forward in that fight. And PROOF that we are having an impact!" And they're hardly the only ones. For instance, Texas Sen. Ted Cruz wrote a letter to Attorney General William Barr, claiming that Cuties "routinely fetishizes and sexualizes these pre-adolescent girls as they perform dances simulating sexual conduct in revealing clothing including at least one scene with partial child nudity. These scenes in and of themselves are harmful." Fact is, though, Cuties hardly deserves the attention that's being paid to it, plus it's clear that most of the people who've commented on it haven't seen it—unlike the judges at the 2020 Sundance Film Festival, which awarded its director Maïmouna Doucouré Sundance's Directing Award, not to mention those at the 2020 Berlin International Film Festival, which nominated Cuties in three categories. What's particularly worrisome for the adult industry is that if the Religious Right, which has been more than a little upset that it hasn't seen an obscenity prosecution for 12 years, can target a movie that's basically as benign as Cuties, there's little—make that no—doubt that if Trump is reelected and keeps William Barr as his Attorney General, the industry can expect obscenity indictments to come down "fast and furious." Basically, Cuties (French title Mignonnes) is the story of an 11-year-old girl, Amy (pronounced "Ahmi"), who's immigrated with her famly from her home in Senegal to France, where she makes friends at school with a few other 11-year-olds who've formed an amateur dance troupe called (you guessed it) "Cuties." The main action for the first hour of Cuties has the girls practicing their dance routines, dressed in shorts and halter tops and moving in ways that wouldn't earn them any plaudits from the local pastor, but also, for most people who aren't religious nutbars, wouldn't be seen as out of place for 11-year-old girls just beginning to express themselves physically in the most general terms through dance. "Our girls see that the more a woman is overly sexualized on social media, the more she is successful. Children just imitate what they see, trying to achieve the same result without understanding the meaning,” Doucouré said, explaining why she was inspired to make this movie, though cautioning about such imitation, "It is dangerous." Netflix itself has a slightly different view. "It’s an award-winning film and a powerful story about the pressure young girls face on social media and from society more generally growing up—and we’d encourage anyone who cares about these important issues to watch the movie," a Netflix spokesperson said in a statement about the controversy that's arisen. However, that's not to say there aren't a couple of problems with the movie. For one thing, early on, as Amy is watching a video of other 11-year-olds dancing, one of them flashes a breast by lifting her halter for a split second—not unlike Janet Jackson's 9/16th-of-a-second SuperBowl breast exposure in 2004—and that's what Cruz is calling "partial child nudity." She also very briefly accesses a video of strippers in a club, but no nudity can be seen there. Also, there's a point where Amy's dad catches her with the cellphone she stole from him at the beginning of the movie—interestingly, he doesn't seem to have missed it for the several months she's had it, and it apparently has never needed to be recharged—and on which she's been recording images of the girls and videos of them dancing, but rather than giving the phone back, she locks herself in her bedroom, appears to pull down her pants—not to worry, absolutely nothing of her genitals is visible—and takes a picture of her privates which, we later learn, she's posted online. And for this, Tyler County's DA Lucas Babin (the congressman's son, don'tcha know) has had Netflix and its "high managerial agents" Wilmot Reed Hastings Jr. and/or Theodore Anthony Sarandos indicted for "Promotion of Lewd Visual Material Depicting Child" under Texas Penal Code Sec. 43.262. Specifically, the defendants are being charged that on roughly September 15, the day Cuties debuted on Netflix, the defendants did "knowingly promote 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, to wit: by issuing or selling or providing or delivering or distributing or disseminating or transmitting or publishing or exhibiting or presenting or advertising the film titled Cuties, also known as Mignonnes, or offering or agreeing to issue, sell, provide, deliver, distribute, disseminate, transmit, publish, exhibit, present, or advertise said film, and the promotion of said film was authorized or recklessly tolerated by a high managerial agent of Netflix." And that's where Texas runs into a couple of problems. First of all, the term "prurient interest in sex" has a specific meaning in the law: It means a "shameful or morbid interest in sex, nudity, or excretion," and Cuties quite obviously has none of that; it's about young girls putting together a dance troupe so they can win a local dance contest, and the fact that they occasionally twerk and the camera sometimes moves in to focus on the area between the top of their halter tops and the hems of their shorts is hardly "shameful" or "morbid" any more than the slightly older dancers in the 1984 movie Footloose would fit that description. At no point is anyone's "genitals" exposed—or any private anatomy outside of that split-second breast shot. Moreover, the term "lewd," as in Section 43.262's prohibition of "lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child," according to Law.com, is defined as "entertainment which aims at arousing the libido or primarily sexual sensation," which again hardly describes Cuties. However, although the indictment claims that Cuties lacks "serious literary, artistic, political, or scientific value," that's not really an issue in the case, since child pornography, unlike obscenity, cannot legally be vindicated by showing that the work, considered as a whole (as works charged with obscenity must be), had such value. "As a constitutional matter, in Miller [v. California], we have the three-part test for obscenity, which requires, among other things, that the material lacks serious artistic, scientific, political or literary value," attorney and constitutional scholar Reed Lee told AVN. "As a constitutional matter, the child pornography category does not require that. In other words, Texas could criminalize depictions of children involved in sexual activity without regard to whether the depiction has serious value. It appears from the indictment that Texas does not do that." But except perhaps to dyed-in-the-wool evangelical Christians, orthodox Jews or Sunni Islamists, the dancing actions of the 11-year-olds in Cuties would seem entirely non-comment-worthy to an ordinary adult. Not to mention, as attorney Jeffrey Douglas told AVN, "The charge under Texas law requires no serious literary, artistic value! Ha! Dead bang loser for Texas. How can anyone argue that a Sundance Festival Best Director award winner and Berlin nominee has no artistic value?" Even Tim Henning, chair of Adult Sites Advocating Child Protection (ASACP), isn't about to condemn the film outright. "I have been following this with interest," he told AVN. "The controversy is not unexpected given the current political climate, cancel culture and the current tendency to politicize and rush to judgment on anything controversial. On top of this, the sexualization of our children is very much a hot button political topic, especially with the religious right, and this is at the heart of this controversy. "From strictly a legal perspective, U.S. federal law defines 'child pornography' as 'visual depictions of sexually explicit conduct involving a minor.' It does not matter if the minor is clothed, partially clothed or nude. What the court is most concerned with is if the minor has experienced physical or psychological harm in producing the content. There are no exceptions in the law that allows for artistic, literary, political or scientific value. The law does not allow for evaluating the work as a whole. It is possible that this film can fall under scrutiny here if prosecutors can successfully argue harm to the child actors." Lee agreed, noting that "the [New York v.] Ferber analysis from the Supreme Court is that the child pornography exception to the First Amendment is on a different footing altogether than the obscenity exception. They're not two slightly different flavors of the same thing. The dissemination of child pornography can be criminalized in order to suppress its creation, and the reason is that its creation involves sexual abuse of children"—something of which there is no evidence in Cuties. "It is interesting to note, however, that TikTok is full of imagery that could meet these same definitions," Henning added. Hmmm ... perhaps that's why Trump has tried to ban the app from American websites—he's fulfilling his long-ago, long-forgotten anti-porn pledge!