Indictment Netflix Under Texas Child Pornography Law Probably Won’t Go Anywhere
Netflix has apparently been indicted in Texas (see below) under the Texas child exploitation statute, based on the alleged “depict[ion of] the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age” in the controversial French-language film Cuties. A few thoughts on the legal issues here (I set aside any moral or aesthetic issues, on which I lack any special expertise).
[1.] I think Netflix should easily beat this indictment because Texas law expressly excludes material that has “serious literary, artistic, political, or scientific value”:
(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.
The judgment about serious value in such contexts is generally seen as being, in the first instance, a matter of law for the judge (and for appellate judges); it’s to be judged under a national reasonable person standard, and not under a community standard. (See Pope v. Illinois (1987).) And of course a work can have serious artistic value regardless of its moral message; and serious value is not a particularly high bar.
From all I hear about Cuties (I haven’t watched it myself), it does have serious artistic value, and it seems unlikely that a court would conclude that a film that won a Best D
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