Netflix, Inc. v. Babin

641 F.Supp.3d 319

NETFLIX, INC., Plaintiff, v. Lucas BABIN, Defendant.

CIVIL ACTION NO. 9:22-CV-00031

United States District Court, E.D. Texas, Lufkin Division

Signed November 14, 2022

Joshua James Bennett, Edgar Leon Carter, Eric B. Chen, Linda R. Stahl, Monica Litle Goff, Carter Arnett PLLC, Dallas, TX, David McDonald Prichard, Prichard Hawkins & Young, San Antonio, TX, for Plaintiff.

Christopher Lee Lindsey, Office of the Attorney General—Defense Division, Austin, TX, Jonathan F. Mitchell, Jonathan F. Mitchell Attorney at Law, Austin, TX, for Defendant.

PRELIMINARY INJUNCTION

Michael J. Truncale, United States District Judge

Before the Court is Plaintiff Netflix, Inc.'s Amended Motion for Preliminary Injunction [Dkt. 69], as well as supplemental briefing on jurisdictional issues, which the parties provided at the Court's request. [Dkts. 48, 49, 51, 52, 55, 56, 67]. Netflix asks the Court to enter a preliminary injunction enjoining Defendant Lucas Babin, his agents, servants, employees, and attorneys, and all others who are in active concert or participation with Mr. Babin (or with any of his agents, servants, employees, or attorneys) from: (1) continuing to prosecute Netflix under the currently pending charges in Tyler County, Texas under Section 43.25 of the Texas Penal Code, and (2) seeking to reindict Netflix or otherwise pursue charges against Netflix under Section 43.262 of the Texas Penal Code in connection with the motion picture Cuties. Netflix also requests that the Court waive the bond requirement for Netflix or set a minimal bond pending trial. On September 14, 2022, the Court held a hearing on Netflix's Amended Motion for Preliminary Injunction. For the reasons outlined below, Netflix's Amended Motion for Preliminary Injunction is hereby GRANTED.

I. BACKGROUND

"The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). With the advent and rise of social media, and the ever-increasing sexualization of society, this sentiment is even more pertinent now than when it was written forty years ago. Admirably, this case involves two parties that both seek to thwart the increasing sexualization of children. But they disagree on the means that should be used to reach this shared end.

Netflix began streaming Cuties on September 9, 2020. Cuties ("Mignonnes" in its native French) 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 presents an unflinching view of Amy and the Cuties as they prepare for and compete in that competition. The film also highlights how their unfettered and unmonitored access to social media and the internet influences their behavior. During its 96-minute runtime, Cuties depicts and explores various relationships (e.g., fraternal, maternal, paternal (or lack thereof), and platonic), while vividly revealing to viewers the dangers and consequences of leaving children unrestrained from—and at the mercy of—the highly sexualized and media-driven culture in which they are now immersed. The Cuties mimic this culture through provocative dance routines, often performed in public places while wearing cut-off tops and tight, short shorts.

Repulsed by the sexualization of the children in Cuties, Defendant Lucas Babin, the District Attorney for Tyler County, Texas, sought and received a grand jury indictment (the "First Indictment") against Netflix within a few weeks of Netflix releasing the film. [Dkt. 1-1]. This First Indictment was issued for the offense of "promotion of lewd visual material depicting child" under Texas Penal Code § 43.262. Shortly thereafter, Mr. Babin issued a press release where he expressed his motivation for seeking the charge:

After hearing about the movie Cuties and watching it, I knew there was probable cause to believe it was criminal under Section 43.262 of the Texas Penal Code. The legislators of this state believe promoting certain lewd material of children has destructive consequences. If such material is distributed on a grand scale, isn't the need to prosecute more, not less? A grand jury in Tyler [C]ounty found probable cause for this felony, and my job is to uphold the laws of this State and see that justice is done.

[Dkt. 1-2]. On October 23, 2020, Netflix entered a plea of not guilty. The case generally sat idle over the next year. On October 26, 2021, the First Court of Appeals of Texas held in Ex parte Lowry, that Section 43.262 violates the First Amendment because it is a content-based restriction of speech, is not an obscenity or a child pornography statute, and cannot otherwise satisfy strict scrutiny. 639 S.W.3d 151, 162-68 (Tex. App.—Houston [1st Dist.] 2021, pet. granted Mar. 2, 2022).¹ In response to Lowry, Netflix filed a Petition for a Pretrial Writ of Habeas Corpus (the "Habeas Petition") on November 15, 2021. In the Habeas Petition, Netflix argued that the First Indictment should be dismissed because Section 43.262 is "facially unconstitutional under the First, Fifth, and Fourteenth Amendments of the United States Constitution and Article I Section 8 of the Texas Constitution in several ways." [Dkt. 1-4 at 1]. Netflix requested a November 2021 hearing on the Habeas Petition, but for reasons the parties disagree on, the hearing was set for March 4, 2022.

On March 1, 2022, Mr. Babin sent an e-mail to Netflix's counsel stating:

Separate indictments will be served on the registered agent within the next few days. Wanted to give you a heads-up. I will dismiss cause number 13,731 (§ 43.262) and make sure you get a copy of the order by end of the day tomorrow. As a result, I do not see a need for the hearing scheduled for 3/3/22.

[Dkt. 70-14 at 20]. As promised, Mr. Babin dismissed the First Indictment the next day, albeit without prejudice. [Dkt. 1-9] He also issued four new indictments (the "New Indictments") under Texas Penal Code § 43.25(d), for intentionally and knowingly promoting a performance—Cuties—that included sexual conduct by a minor. [Dkts. 1-5, 1-6, 1-7, 1-8]. Each indictment involved a different actress. Netflix reacted to the New Indictments by filing this suit against Mr. Babin for injunctive relief the following day. Netflix contends that Section 43.262 is patently unconstitutional under the Fifth Amendment's vagueness doctrine and facially unconstitutional under the First Amendment because it is an impermissible content-and viewpoint-based restriction that is not narrowly tailored to serve a compelling state interest, is overbroad, and threatens to chill Netflix's speech. [Dkt. 97 at 25-27]. As to the New Indictments, Netflix contends: (1) that as applied to Netflix, Section 43.25 is unconstitutional under the First Amendment and threatens to chill Netflix's speech, and (2) that Mr. Babin brought the New Indictments in bad faith and without probable cause to retaliate against Netflix for exercising its rights to free speech and to petition the government for redress. Id. at 27-30. Netflix also contends that Mr. Babin has engaged in selective prosecution in violation of the Equal Protection Clause of the Fourteenth Amendment. Id. at 30-32.

On March 15, 2022—twelve days after Netflix filed this suit—Babin issued a policy ("the Policy Change") stating that the Tyler County Criminal District Attorney's Office "shall not prosecute any offense under Texas Penal Code Section 43.262 unless and until (1) The Texas Supreme Court has deemed Section 43.262 facially constitutional; (2) the Lowry decision has otherwise been abrogated in favor of Section 43.262; or (3) Section 43.262 has been amended by the Texas Legislature." [Dkt. 22-2 at 3] (emphasis added).

II. APPLICABLE LAW

Neither Congress, nor the States, may make laws abridging the freedom of speech. See U.S. Const. amend. I; see also Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (incorporating the First Amendment against the States through the Fourteenth Amendment). But this prohibition has never conferred an absolute right to speak. See, e.g., Gitlow, 268 U.S. at 666-67, 45 S.Ct. 625 (collecting cases); Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (same). "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Obscene speech is one such class. See, e.g., id.; Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ("We hold that obscenity is not within the area of constitutionally protected speech or press."). "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766. Speech that "depict[s] or describe[s] sexual conduct" and "which, taken as a whole, appeal[s] to the prurient interest in sex, which portray[s] sexual conduct in a patently offensive way, and which, taken as a whole, do[es] not have serious literary, artistic, political, or scientific value" may be regulated as obscene. Miller, 413 U.S. at 24, 93 S.Ct. 2607. But even so, the "conduct must be specifically defined by the applicable state law, as written or authoritatively construed." Id.

Child pornography is another class of speech that is not entitled constitutional protection. Ferber, 458 U.S. at 756-65, 102 S.Ct. 3348. Child pornography "consists of sexually explicit visual portrayals that feature children." United States v. Williams, 553 U.S. 285,...