Why Netflix May Not Be Concerned About an Indictment Over 'Cuties'

Courtesy of BIEN-PRODUCTIONS/Netflix

Forget the First Amendment. The reason Netflix isn't likely sweating an indictment by a Tyler County, Texas, grand jury for its Cuties film is Texas Penal Code§ 12.51.

That would be the punishment for Netflix if the local prosecutor actually moves ahead and obtains a conviction against the corporation for promoting alleged child porn. It's $20,000, or at most, double that amount for whatever Netflix gained from streaming the Sundance-winning French documentary about an 11-year-old immigrant who joins a dance troupe.

In short, Tyler County D.A. Lucas Babin (aka "Spider") is sending a judicially stamped press release, legally meaningless as it may be, on par with Rep. Doug Collins' demand that the FCC stop Netflix from allowing any "public broadcast" of Cuties (never mind the sheer improbability that would ever happen).

Babin hasn't indicted Netflix executives. Conservative politicians aren't bothering to push FCC chairman Ajit Pai to clarify indecency standards as the Supreme Court once said it must in order to punish

The indictment amounts to theater in the culture wars, timed for election season.

As for First Amendment arguments, Prof. Eugene Volokh has covered those issues here. If Babin does go forward, Netflix may push back (and spend more than $40,000 on lawyers). Volokh tells THR, "I think it would be important for Netflix’s reputation to fight; a plea deal would be an admission of guilt."