June 7, 2023
Public Policy Organizations, Movie Studios, Texas Broadcasters, Newspapers, Reporters, Publishers, Authors, and Photographers File Amicus Brief in Netflix Case in Support of Free Speech
The Association of American Publishers (AAP) joined a broad coalition of representatives of public policy organizations, movie studios, Texas Broadcasters, newspapers, reporters, publishers, authors, and photographers in filing an amicus brief in support of free speech in the U.S. Court of Appeals for the Fifth Circuit on behalf of Plaintiff-Appellee Netflix in Netflix Inc. v. Babin.
The case addresses whether a criminal prosecution may proceed against Netflix for its distribution of the motion picture Cuties, a French film that tells the story of an 11-year-old Senegalese immigrant, Amy, torn between her family’s conservative culture and the more progressive French society. The award-winning film captures Amy and a dance troupe (called the “Cuties”) as they try out for and perform at a big dance competition, and it explores the challenges of childhood and the pressures of the rapidly rising influence of social media.
The district court observed that “[t]he Cuties mimic this culture through provocative dance routines, often performed in public places while wearing cut-off tops and tight, short shorts.”
Ultimately the district court found that federal intervention was permissible due to bad faith actions by the District Attorney and that there was a substantial likelihood that Netflix would prevail on its First Amendment claims, and accordingly it entered a preliminary injunction barring prosecution of Netflix for the film. The District Attorney appealed the decision.
The brief raises critical free speech issues implicated by this case, highlighting (1) the importance of addressing bad-faith prosecutions and vindicating First Amendment rights in federal court in a timely fashion; and (2) the unconstitutional chilling effects of such criminal prosecutions on all speakers. Excerpts from the amicus brief include:
- “This case is about a good law employed in bad faith to punish constitutionally protected speech. Netflix has faced two misguided prosecutions and five indictments under [criminal statutes] for its distribution of Cuties, an award-winning film that addresses important societal issues such as the influence of social media and cultural heritage. As shown by extensive delays, a lack of probable cause, dubious motives, and selective use of evidence, the District Attorney prosecuted Netflix in bad faith and deprived it of an immediate remedy in state court. Thus, this is the rare case where it is appropriate for federal courts to fulfill their duty to protect constitutional rights, including those under the First Amendment, and put an end to an unjustified state prosecution.”
- “[R]ather than foster the goal of protecting minors from harm, the continued criminal prosecution of Netflix would result not only in censorship of significant issues of public concern about children and uncomfortable truths that are discussed in the film, but also broader chilling effects on protected speech.”
- “[A]llowing the prosecution of Netflix to continue could unleash a flood of chilling effects on a broad spectrum of protected speech. If not enjoined, the prosecution could spur similarly abusive and harassing prosecutions against a wide range of speech under other statutes based on the personal tastes of government officials. Even the threat of such prosecutions would have a chilling effect on others who fear similar actions targeting disfavored speech. This flies in the face of our nation’s history and U.S. Supreme Court jurisprudence.”
The full brief can be found here.