Netflix, Inc. v. Babin

88 F.4th 1080

NETFLIX, INCORPORATED, Plaintiff—Appellee, v. Lucas BABIN, Defendant—Appellant.

No. 22-40786

United States Court of Appeals, Fifth Circuit

FILED December 18, 2023

Appeal from the United States District Court for the Eastern District of Texas, USDC No. 9:22-CV-31, Michael Joseph Truncale, U.S. District Judge

Joshua J. Bennett (argued), Carter Arnett, P.L.L.C., Dallas, TX, David McDonald Prichard, Prichard Young, L.L.P., San Antonio, TX, for Plaintiff—Appellee.

Kathryn Cherry (argued), Office of the Attorney General, Office of the Solicitor General, Austin, TX, Jonathan F. Mitchell, Austin, TX, Christopher Lee Lindsey, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendant—Appellant.

JT Morris, Foundation for Individual Rights & Expression (FIRE), Washington, DC, for Amicus Curiae Foundation for Individual Rights and Expression.

Laura Lee Prather, Counsel, Haynes & Boone, L.L.P., Austin, TX, for Amici Curiae Texas Association of Broadcasters, Texas Press Association, Texas Tribune, Freedom of Information Foundation of Texas, American Booksellers for Free Expression, Association of American Publishers, Incorporated, Authors Guild, Cato Institute, Center for Investigative Reporting, First Amendment Foundation, Incorporated, Fox Television Stations, L.L.C., Freedom of the Press Foundation, Freedom to Read Foundation, Institute for Policy Innovation, International Center for Law & Economics, Media Coalition Foundation, Media Institute, Media Law Resource Center, National Coalition Against Censorship, National Press Photographers Association, News/Media Alliance, Penguin Random House, L.L.C., Reporters Committee for Freedom of the Press, Tully Center for Free Speech, Motion Picture Association, Incorporated.

Thomas S. Leatherbury, Esq., Thomas S. Leatherbury Law, P.L.L.C., Dallas, TX, Michael Lloyd Charlson, Attorney, Robert H. Wu, Vinson & Elkins, L.L.P., San Francisco, CA, Peter Steffensen, Southern Methodist University, Dedman School of Law, Dallas, TX, for Amicus Curiae First Amendment Scholars and Clinics.

Before Wiener, Willett, and Douglas, Circuit Judges.

Don R. Willett, Circuit Judge:

Younger abstention is one of a handful of federalism-flavored carveouts to a federal court's "virtually unflagging obligation"¹ to exercise congressionally conferred jurisdiction. Out of respect for the legitimate interest of the state, and to avoid needless friction, federal courts may not interfere with an ongoing state criminal proceeding, so long as the defendant being prosecuted has an adequate opportunity to raise constitutional challenges in the underlying state forum.

A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass. Nor, for that matter, does a defendant have an adequate opportunity to assert constitutional violations in the state proceeding when the prosecution itself is the constitutional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable hope of obtaining a valid conviction against the defendant, comity-infused deference gives way, and a federal court may exercise its equitable power to enjoin the prosecution.

In this case, a Texas state prosecutor, Lucas Babin, criminally charged Netflix for advertising and promoting child pornography based on its streaming of Cuties, a controversial film starring preteen girls who participate in a dance competition. Soon after Netflix asserted its First Amendment right to stream and promote Cuties, Babin multiplied the first indictment into four, selectively presented evidence to the grand jury, and inexplicably charged Netflix for a scene that involved a verifiably adult actress. Based on these and other allegations of bad faith, Netflix sought and successfully obtained a preliminary injunction against Babin and his prosecution. Babin now appeals, arguing that the district court clearly erred in finding bad faith and abused its discretion by declining to abstain under Younger.

At this preliminary stage, and on the fact-intensive record before us, we cannot conclude that the district court erred. With the benefit of a seven-hour evidentiary hearing, including Babin's own testimony, the district court was best positioned to make the largely credibility-based determination of bad faith. The findings underlying that determination, along with the inferences drawn from them, are not clearly erroneous, and they likely warranted injunctive relief under what we have historically understood to be—and continue to recognize as—a narrow exception to Younger abstention. We accordingly AFFIRM.

I

A

This federal lawsuit, and the parallel state criminal prosecution, follows Netflix's decision to stream a French film called Cuties, a story about an eleven-year-old Senegalese girl named Amy who wants to perform at a dance competition with her friends. The film presents "an unflinching view" of Amy and her dance team (the "Cuties," or "Mignonnes" in its native French) preparing for the competition, and the underlying storyline is about Amy attempting to navigate between the conservative culture of her devoutly Muslim family and the provocative culture of modern dance. As the district court explained, "Cuties depicts and explores various relationships . . . 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." In conveying that message, the film shows Amy and the Cuties attempting to mimic modern dance culture by performing public dance routines "while wearing cut-off tops and tight, short shorts."

There are no sex scenes in Cuties, to be sure, but two scenes in the film, among others, have received heightened scrutiny in this litigation. The first involves the main character, Amy, who is shown partaking in a "religious cleansing" in one of the film's most dramatic moments—a "kind of baptism," as the district court understood it. "In context," Netflix emphasizes, "the scene symbolizes the inner conflict Amy is battling between her spiritual beliefs and societal influences," but stripped of the symbolism and viewed in isolation, it simply shows "a young girl in underwear and a tank top, by herself, convulsing on the floor," while her "mother and auntie administer water on her body." The second relevant scene is less significant but more explicit. "In [that] scene," the district court recounted, "the Cuties are watching a video on one of their phones when a dancer in the video flashes her breast for a fraction of a second." The district court determined that the briefly nude dancer in that scene, who the parties call "Jane Doe," was over the age of eighteen at the time Cuties was filmed.

Cuties, which was filmed in France in 2019, premiered a year later at the Sundance Film Festival in Utah, and Netflix began streaming Cuties to its subscribers nationwide in September 2020, during the throes of the COVID-19 pandemic. Perhaps predictably, the reviews of Cuties were mixed. As Netflix frames it, "Cuties' public reception was not entirely positive." Indeed, some were downright repulsed by what they saw. Criticism flared when at least three members of Congress expressed their senatorial scorn for the film, one of whom took the additional step of referring the film via [Image materials not available for display.] (formerly Twitter) to the Department of Justice.

Among the number displeased and disgusted by Cuties is the defendant in this case, Lucas Babin, a former actor himself but now the district attorney of Tyler County, Texas. Believing that some scenes in Cuties amounted to "obscenity," Babin sought, and a grand jury returned, an indictment charging Netflix with the "promotion of lewd visual material depicting [a] child" under § 43.262 of the Texas Penal Code. Babin obtained the indictments just two weeks after Cuties debuted on Netflix, becoming the first—and so far, the only—prosecutor in America to criminally charge Netflix for the film. Babin embraced the novelty, though, and candidly expressed his motivation for seeking the charge in a press release he later issued on his webpage:

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.

According to his press release (and later, his testimony), Babin watched the entire film before seeking criminal charges. But the same cannot be said of the grand jury. With the help of "screen-recording software," Babin admitted that he showed the grand jury only curated clips and images of Cuties, singling out some of the most provocative scenes, including the one of Amy undergoing her moment of partially clad "spiritual cleansing." Based on this selective presentation of the evidence, the grand jury found probable cause to charge Netflix under § 43.262 of the Texas Penal Code.

Netflix is quick to point out that, upon receipt of the indictment, it "did not run to federal court for protection," but instead prepared to defend itself in state court. To that end, Netflix arranged a meeting with Babin and his first assistant, Pat "Hawk" Hardy, to discuss the indictment. During that October 2020 meeting, Netflix asked Babin and Hardy what "specifically prompted the indictment," adding that if the problematic portion of the film was the exposed breast, Netflix would be willing to share proof that the actress was over eighteen years old. Babin and Hardy declined, expressing no need to look at the proof and instead emphasizing that...