On October 7 2020, posts claiming that a Texas grand jury had “indicted Netflix” over its distribution of the film Cuties began circulating on social media:
Netflix’s Indictment in the News
Readers searching to validate the story might be led to believe the claim was validated by a “fact-check,” thanks to Facebook’s labeling of content on the topic of Netflix’s purported indictment:
But the article by USA Today did not appear to be an actual fact-check — instead, it linked to a standard October 6 2020 news story, which reported:
Netflix is now facing felony charges for “Cuties,” as backlash against the controversial French film heads to the legal arena.
A Tyler County, Texas, grand jury indicted the streaming giant on Sept. 23  for promoting the “lewd” visual material “against the peace and dignity of the state.”
The one-page indictment, received by USA TODAY, states that Netflix promoted, distributed and exhibited material that “depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age” for the “prurient interest in sex.” The document also states that the film held no serious “literary, artistic, political, or scientific value.”
Netflix released “Cuties,” originally titled “Mignonnes,” [in September 2002] to strong national reaction. The French-language film centers on 11-year-old Amy, who becomes a member of a dance group dubbed the “Cuties.”
Two analytics companies that track Netflix subscribers reported in September  that the streaming service saw an uptick in cancellations amid the controversy over the coming-of-age film, which some critics say sexualizes young girls.
The subsequent reporting consisted of commentary by Tyler County District Attorney Lucas Babin and contextual information about the film. The article contained no information about how an indictment against a large company such as Netflix might or might not progress was included; nor did elements of a fact-check appear at any point — the content was not assessed and authenticated, and it carried no rating.
On October 6 2020, the Tyler County District Attorney’s Office shared a press release on Facebook:
Typically, reporting by news organizations such as Reuters repeated statements from the Tyler County District Attorney’s Office without any contextual information or legal analysis.
On Reddit’s r/law, a discussion of the indictment against Netflix was shared alongside a scan of the indictment itself:
That document bore a date (September 23 2020), a Cause Number (13731), a title (The State of Texas vs. Netflix, Inc.), and it read as follows:
CHARGE: PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD PC 43.262
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY for Tyler County, Texas duly selected, impaneled, sworn, charged, and organized as such at the JANUARY term A.D. 2020 of the 1 .A District Court for said County, upon their oaths present in and to said court at ‘ said term that NETFLIX, INC, hereinafter styled Defendant, on or about the 15TH day of SEPTEMBER A.D. 2020, and before the presentment of this indictment, in the County and State aforesaid, DID THEN AND THERE knowingly promote visual material which depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age at the time the visual material was created, which appeals to the prurient interest in sex, and has no serious literary, artistic, political, or scientific value, to wit: by issuing or selling or providing or delivering or distributing or disseminating or transmitting or publishing or exhibiting or presenting or advertising the film titled Cuties, also known as Mignonnes, or offering or agreeing to issue, sell, provide, deliver, distribute, disseminate, transmit, publish, exhibit, present, or advertise said film, and the promotion of said film was authorized or recklessly tolerated by a high managerial agent of Netflix, Inc., namely, Wilmot Reed Hastings Jr. or Theodore Anthony Sarandos Jr., acting in behalf of Netflix, Inc. and within the scope of the agent’s office or employment at Netflix, Inc. AGAINST THE PEACE AND DIGNITY OF THE STATE.
The indictment maintained that Netflix’s distribution of Cuties (original title Mignonnes) constituted promotion of “lewd visual material depicting [a] child,” and that the film otherwise had “no serious literary, artistic, political, or scientific value.”
‘Netflix is a Ham Sandwich’
A legal axiom holds that indictments are easy to obtain; it is often said a prosecutor could “indict a ham sandwich” if they so chose, phrasing referenced on social media after the indictment began making the rounds:
In 22 states, the prosecutor must obtain an indictment before he can proceed with a felony prosecution, and while it sounds like a fancy legal term, don’t be fooled — indictments are easy to obtain.
They can come pre- or post-arrest. Pre-arrest indictments (rare in New York) are generally based on weeks or even months of investigation, material discovered through search warrants, phone taps, and snitch information — more akin to what’s traditionally done in a federal, rather than a state, case. (Reminder: If you or a loved one ever is the subject of such an investigation, do not cooperate without an attorney present. Even as a witness subpoened to a grand jury, you have the right to an attorney.)
As New York Judge Sol Wachtler said in 1985, “If a district attorney wanted, a grand jury would indict a ham sandwich.”
Grand juries are the prosecutor’s babies. They decide who gets picked, what evidence gets presented, and what gets left out. There’s no judge, no defense attorney, and generally a defendant only testifies in rare circumstances — his story is so air tight that there’s no down side in putting him in. There’s no necessity for unanimity among the 23 or so jurors, and the standard of proof is so low — that probable cause exists to believe a crime has been committed — anyone, for the merest hint of an offense, can get indicted.
Legal Analysts Weigh In
On October 6 2020, legal scholar Eugene Volokh published a brief assessment of the Netflix Cuties indictment, essentially dismissing it as, at the very least, stunt-adjacent:
In a short piece (“Indictment of Netflix Under Texas Child Pornography Law Probably Won’t Go Anywhere”), Volokh wrote in part:
I think Netflix should easily beat this indictment because Texas law expressly excludes material that has “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 Director prize (in the international film category) at Sundance lacks such value. To be sure, in Castillo v. State (Tex. Ct. App. 2002), the court was a bit cavalier as to the serious value inquiry when it came to a comic book, and left the matter to the jury’s discretion. But given the Pope precedent, coupled with the film’s awards and nominations (and perhaps, rightly or wrongly, the sense that broadly exhibited films are more “artistic[ally]” “serious” than comic books), I don’t think Netflix has much to worry about here.
In a subsequent point, Volokh noted that states likely could prohibit lewd material involving children regardless of what is arguably artistic merit:
Now it appears that a state probably could ban child pornography without regard to whether it has serious value: In the words of the Supreme Court in Ashcroft v. Free Speech Coalition (2002),
Where the images are themselves the product of child sexual abuse, … the State ha[s] an interest in stamping it out without regard to any judgment about its content…. The fact that a work contained serious literary, artistic, or other value [does] not excuse the harm it caused to its child participants.
We were unable to locate any reporting which included legal analysis, nor did we uncover any standalone legal analysis suggesting that the indictment was likely to result in any meaningful action against Netflix.
A number of news organizations (including USA Today and Reuters) reported that a Texas grand jury had indicted Netflix over its distribution of Cuties (originally titled Mignonnes). Coverage of the press release and indictment was typically suspiciously vague or suspiciously partisan, and legal analysts commenting separately from those articles surmised that the indictment was largely performative, possibly to curry favor among constituents outraged by rumors about the content of Cuties.