Kassidy Michel, Associate Member, University of Cincinnati Law Review
Netflix released the film Cuties on September 9th, and the film has caused an international debate.The reviews of this French independent film have been all over the board. Some political figures have expressed their deep concerns that the film exploits children and could qualify legally as child pornography. This article discusses the possible legal arguments against Cuties and Netflix under United States child pornography laws as well as obscenity laws. Part II will discuss the film itself, Part III will highlight the specific criticisms of the film, Part IV will explain the child pornography laws in the United States, Part V will discuss the obscenity laws in the United States, and Part VI will discuss concluding remarks.
II. Background on Cuties
Cuties (or “Mignonnes” in French) is a film written and directed by Maïmouna Doucouré. The film depicts Amy, a Senegalese-French eleven-year-old girl and explores her burgeoning femininity. Amy was raised by a conservative Muslim family and decides to break from those traditional norms to join a free-spirited dance group called “The Cuties.” The Cuties learn and perform provocative and sexualized dances inspired by social media posts and music videos. The film explores how young children are influenced by the toxicity of social media, the reality that “the sexier and more objectified a woman is, the more value she has in the eyes of social media,” and the fact that young children do not understand what they are mimicking.
The film has been praised internationally, especially in France, and at several film festivals. Cuties won the prestigious Directing Award in the World Cinema Dramatic Competition section of the Sundance Film Festival and was nominated for the Grand Jury Prize in the same section. Netflix acquired the film’s rights even before Cuties premiered at Sundance.
Netflix first advertised Cuties on its streaming platform on August 19th with provocative artwork of the four young female stars in revealing dance costumes and suggestive poses. Netflix strayed away from the original French advertising poster that portrayed the young girls walking down the street. The first synopsis of the film read: “Amy, 11, becomes fascinated with a twerking dance crew. Hoping to join them, she starts to explore her femininity, defying her family’s traditions.” After Netflix received numerous critiques of sexualizing the film, the artwork changed, and the synopsis now reads: “11 year-old Amy starts to rebel against her conservative family’s traditions when she becomes fascinated with a free-spirited dance crew.”
III. Criticism of Cuties
There has been a flood of criticism for the film since Netflix first advertised Cuties on the streaming platform in the United States. Many say the film exploits young children and promotes child pornography. These criticisms are largely based on the original film artwork and synopsis Netflix promoted. Several state Attorneys General, including Dave Yost (Ohio), Ken Paxton (Texas), Jeff Landry (Louisiana), and Ashley Moody (Florida), have sent a letter to Netflix asking them to voluntarily remove the film from the platform. The letter gives credit to Maïmouna Doucouré’s “desire to fight the hyper-sexualization of young girls,” but notes how, at the same time, the film “whets the appetites of those who wish to harm our children in the most unimaginable ways.” The letter also gives specific examples from the film in which the young girls are sexualized, such as exposing “a young girl’s breast”; “show[ing] children using their bodies in a sexual manner to get themselves out of trouble”; “focus[ing] on the clothed genitalia of children”; showing “the creation and publication of child pornography”; and showing “repeated images of eleven-year old children gyrating, ‘twerking,’ and simulating sex.” Several Senators have sent letters to Netflix expressing the same concerns.
Senator Ted Cruz asked Attorney General William Barr to investigate “whether Netflix, its executives, or the individuals involved in the filming and production of ‘Cuties’ violated any federal law against the production and distribution of child pornography.” The House of Representatives, led by Jim Banks and 33 other members, sent a similar letter to the Attorney General.
Several other political figures have expressed their concerns for the film via social media, specifically on Twitter. Those figures include Representative Tulsi Gabbard, Christine Pelosi (daughter of Speaker of the House Nancy Pelosi), and several other notable individuals and groups. There have also been several Change.org petitions to remove the film from Netflix, along with the trending hashtag to #CancelNetflix.
Doucouré defended her coming-of-age film by stating “this film tries to show that our children should have the time to be children, and we as adults should protect their innocence and keep them innocent as long as possible.” She also commented that she understands people’s concerns who have only seen Netflix’s original advertisements, but believes those advertisements misrepresented the film. However, Doucouré believes that after these criticizers watch the film, they will understand that “we have the same fight” to protect children from hyper-sexualization.
When criticisms of the original artwork and synopsis started pouring in, Netflix tweeted an apology on August 20th for the “inappropriate artwork” that was used to advertise the film because it was not representative of the film and its message. As critics continued to speak out against Netflix and Cuties, and #CancelNetflix trended, instead of apologizing again, Netflix issued a statement on September 11th in defense of the film and encouraged people to watch Cuties. The statement said Cuties is a “social commentary against the sexualization of young children,” and “a powerful story about the pressure young girls face on social media and from society more generally growing up.”
IV. Child Pornography Analysis
The most prominent argument against Cuties accuses the film of falling under child pornography because the film sexually exploits children. The United States Code defines “child pornography” as “any visual depiction…where—the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” The Code goes on to define “sexually explicit conduct” as “actual…lascivious exhibition of the anus, genitals, or pubic area of any person.” The Code makes it a crime to produce or distribute material involving sexual exploitation of minors, including the filming of minors engaging in sexually explicit conduct.
In New York v. Ferber, the Supreme Court concluded that States have more discretion in regulating child pornography. The Court discussed that the First Amendment does not cover the visual depiction of children performing sexual acts or lewdly exhibiting their genitals, except if the depiction is important and necessary for a literary performance or scientific or educational work. The Court stated, though, that this is a very slim exception, if not de minimis (‘about minimal things’), and if a depiction of a child engaging in lewd sexual conduct were necessary, a person over the statutory age who looks younger could take the place. Children are protected broadly under this standard because there is a compelling argument that the State government should protect the physical and emotional well-being of minors.
Because child pornography laws are determined by giving deference to the State’s interest in protecting minors, the critics of Cuties may have a chance during litigation. However, that is only if there is a lawsuit filed against Netflix or anyone involved with Cuties. Based on the research and letters sent to both Netflix and the United States Attorney General William Barr, the critics argue that Cuties depicts children in a sexually explicit way. Evidence of this would include the scenes where the camera shoots the children dancing provocatively and focuses on the children’s clothed body; there is a scene where Amy’s mother and aunt punish her by throwing water on her while she is wearing only a camisole and underwear and Amy starts to dance and twerk suggestively; one scene shows a child’s breast; the Cuties dance provocatively for adult men to get out of trouble; and many other specific scenes.
The critics argue that all these exhibits in the film constitute child pornography under the code because they visually depict a minor engaging in a lascivious exhibition of the children’s genitals. Although the children are clothed, the critics would probably argue that being clothed does not matter, if the children are sexually exploited. Additionally, the critics will likely argue that Cuties qualifies as child pornography under Ferber because the film depicts the children dancing in a lewd manner that overly sexualizes them. Under Ferber, there are few exceptions that allow children to be exploited in such a way.
The argument in defense of the allegation that Cuties sexually exploits minors would probably mirror Doucouré’s defense against current criticisms. Specifically, the film is not sexually exploiting children but bringing to light major issues of hyper-sexualizing children.
V. Obscenity Analysis
Although the argument that Cuties falls under child pornography is a strong argument, another legal argument that critics may raise about the film would be that the film falls under obscenity law. When children are involved, there is more deference given to protecting their rights, so the child pornography standard is broader than the obscenity standard. Obscenity is a harder standard to meet than child pornography, especially because it is harder to define.
Justice Potter Stewart defined obscenity as “I know it when I see it.” The Supreme Court held in Roth v. United States that the First Amendment does not protect lewd and obscene utterances because they do not add any value or benefit to society. In Miller v. California, the Supreme Court created a test for obscenity that is still used today: (1) whether “the average person, applying the contemporary community standards” would find that the work “taken as a whole,” appeals to “prurient interest”; (2) whether the work depicts or describes, in a patently offensive way, specifically identified sexual conduct; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court in Miller also ruled that States could have different obscenity standards.
Netflix and the creators involved with Cuties would probably prefer an obscenity claim if this issue were to go to trial because it is harder to meet the obscenity standard. Since states are able to enforce different obscenity standards, the jurisdiction in which the case would be tried would be significant in regard to obscenity. Netflix and Cuties would likely argue that the film did not meet any of the Miller criteria.
On the other hand, the critics of the film would likely argue that Cuties would meet the three criteria under the Miller test for obscenity. The first prong depends on the jury pool. However, the critics of the film would probably argue that when viewed by the average person in the United States (or in the specific community/jurisdiction), Cuties appeals to prurient interests because the film portrays children in a hyper-sexualized way that appeals to the sexual desire of pedophiles and human trafficking criminals. The second prong is specific to the applicable state law, but the critics of Cuties would argue that the film depicts, in a patently offensive way, sexual conduct specifically defined by the state statutes. Based on the United States Code, the critics would argue that child pornography covers what is depicted in Cuties. Finally, the critics of the film would argue that the film, taken as a whole, lacks serious literary, artistic, political, or scientific value because it is a dramatized film with no serious meaning.
The French film Cuties has sparked serious controversy on social media regarding the possibility of legal repercussions in the United States. Because the film was written and directed by a French Muslim woman, it is important to understand the point of view from Maïmouna Doucouré’s culture and perspective. Doucouré’s film was taken out of context when Netflix advertised the film on its streaming platform with provocative imagery and an inappropriate synopsis. Doucouré’s message from the film was meant to discuss the hyper-sexualization of young girls happening through social media, not to encourage it, but to bring the issue to light for people to start the conversation of how to solve the problem. The French film has some suggestive scenes and filming techniques, but that was Doucouré’s creative vision – to show the reality of the issue through discomfort.
Many critics would accept Netflix’s removal of Cuties, however films are not typically banned in the United States or removed from streaming services for being controversial. In order to avoid more controversy, Netflix could heighten the TV rating from TV-Mature to a higher rating, such as “Unrated.” Additionally, there is no warning that the film may contain suggestive scenes of young children. Netflix could add some sort of warning with the TV rating to alert viewers of the suggestive depictions of young children. However, that warning may give more evidence to critics of the film looking to charge the film with child pornography or obscenity. The issue mainly involves the fact that these explicit scenes are of minor children. If the film had used of-age children, there might not have been any problems.
Whether any lawsuits will follow from the many criticisms will be interesting to see, and the critics may have some arguments for why Cuties should be considered child pornography or obscenity.
 See Cuties, IMDB, https://www.imdb.com/title/tt9196192/?ref_=nv_sr_srsg_0 (last visited Sept. 29, 2020).
 Sheena Scott, Netflix Apologizes for Inappropriate Marketing of French Film ‘Cuties,’ FORBES (Aug. 20, 2020, 3:08 PM), https://www.forbes.com/sites/sheenascott/2020/08/20/netflix-apologizes-for-inappropriate-marketing-of-french-film-cuties/#60c442772f8a.
 See Cuties Awards, IMDB https://www.imdb.com/title/tt9196192/awards?ref_=tt_awd (last visited Sept. 29, 2020).
 See Suyin Haynes, ‘This Film Is Sounding an Alarm.’ What Cuties Director Maïmouna Doucouré Wants Critics to Know About Her New Film, TIME (September 11, 2020, 1:41 PM) https://time.com/5886184/cuties-netflix-maimouna-doucoure/.
 See Scott, supra note 3.
 See Id.
 See Sara M. Moniuszko, State Attorneys General Ask Netflix to Pull Controversial ‘Cuties’ as Director Defends ‘Feminist’ Film, USA TODAY (Sep. 14, 2020, 12:39 PM), https://www.usatoday.com/story/entertainment/movies/2020/09/14/netflix-cuties-controversy-florida-congressman-calls-exploitative/5792457002/.
 Letter from Dave Yost et al., Att’y Gen., Ohio, to Reed Hastings, Chief Exec. Off., Netflix (Sept. 14, 2020), https://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/Human-Trafficking/9-14-20-Netflix.aspx.
 See Francesca Gariano, Netflix Faces Backlash Again for French Film ‘Cuties’ About Young Girls, TODAY (Sept. 12, 2020, 12:55 PM), https://www.today.com/popculture/netflix-facing-backlash-film-cuties-t191565; See also Letter from Michael S. Lee, U.S. Senator, Utah, to Reed Hastings, CEO, Netflix (Sept. 11, 2020), https://www.lee.senate.gov/public/_cache/files/27d2b327-48b8-494a-9be2-35cf41a0708a/sen.-lee-letter-to-netflix.pdf; See also Letter from Josh Hawley, U.S. Senator, Mo., to Reed Hastings, CEO, Netflix (Sept. 11, 2020), https://www.hawley.senate.gov/sites/default/files/2020-09/Hawley-Letter-Netflix-Cuties.pdf.
 Letter from Ted Cruz, U.S. Senator, Tex., to William Barr, Attorney General, U.S. (Sept. 11, 2020), https://www.cruz.senate.gov/files/documents/Letters/2020.09.11%20-%20Letter%20to%20DOJ%20-%20Cuties%20-%20FSV.pdf.
 See Letter from Jim Banks, U.S. Representative, Third Dist. Ind., to William Barr, Attorney General, U.S. (Sept. 17, 2020), https://banks.house.gov/uploadedfiles/9172020_banks_cuties_letter.pdf.
 See Tulsi Gabbard (@TulsiGabbard), TWITTER (Sept. 11, 2020, 9:09 PM), https://twitter.com/tulsigabbard/status/1304587833584226305.
 See Christine Pelosi (@sfpelosi), TWITTER (Sept. 10, 2020, 10:54 AM), https://twitter.com/sfpelosi/status/1304070748441518080.
 See Parents Television Council (@ThePTC), TWITTER (Sept. 10, 2020), https://twitter.com/ThePTC/status/1304154583019724807?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1304154583019724807%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.today.com%2Fpopculture%2Fnetflix-facing-backlash-film-cuties-t191565; See also Matt Schaefer (@RepMattSchaefer), TWITTER (Sept. 10, 2020), https://twitter.com/RepMattSchaefer/status/1304162860998823939?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1304162860998823939%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.newsweek.com%2Fnetflix-movie-cuties-could-investigated-child-exploitation-laws-matt-schaefer-1531254; See also supra note 12; See also Netflix Promotes Sexualization of Children, Racist Stereotypes with New Film Cuties, Nat’l Ctr. on Sexual Exploitation (Aug. 21, 2020), https://endsexualexploitation.org/articles/netflix-promotes-sexualization-of-children-racist-stereotypes-with-new-film-cuties/; See also Tom Cotton (@SenTomCotton), TWITTER (Sept. 12, 2020, 8:48 AM), https://twitter.com/sentomcotton/status/1304763865637548034.
 See Lindsey Bahr, Netflix’s ‘Cuties’ Becomes Target of Politicized Backlash, ABC NEWS (Sept. 14, 2020, 5:51 PM), https://abcnews.go.com/Entertainment/wireStory/netflixs-cuties-target-politicized-backlash-73009285.
 See supra note 5.
 See supra note 5.
 See Rebecca Rosman, ‘Cuties’ Calls Out the Hypersexualization of Young Girls – And Gets Criticized, NPR (Sept. 6, 2020, 5:01 PM), https://www.npr.org/2020/09/06/909753465/cuties-calls-out-the-hypersexualization-of-young-girls-and-gets-criticized.
 See Netflix (@netflix), TWITTER (Aug. 20, 2020, 12:36 PM), https://twitter.com/netflix/status/1296486375211053057; See supra note 3.
 Todd Spangler, Netflix Defends ‘Cuties’ as ‘Social Commentary’ Against Sexualization of Young Children, VARIETY (Sept. 10, 2020, 10:39 PM), https://variety.com/2020/digital/news/netflix-defends-cuties-against-sexualization-young-girls-1234766347/.
 18 U.S.C. § 2256(8)(A) (2018).
 18 U.S.C. § 2256(2)(A)(v) (2018).
 18 U.S.C. § 2251(a) (2018).
 See New York v. Ferber, 458 U.S. 747, 756 (1982).
 Id. at 762-63.
 Id. at 756-57.
 See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
 See Roth v. United States, 354 U.S. 476, 485 (1957).
 See Miller v. California, 413 U.S. 15, 24–25 (1973).
 Id. at 29–30.
 Since this blog was written, a Texas grand jury indicted Netflix for promoting lewd material in the film Cuties. See Harmeet Kaur, Texas Grand Jury Indicts Netflix for Allegedly Promoting Lewd Material Over the Film ‘Cuties’, CNN (Oct. 8, 2020, 7:21 AM), https://www.cnn.com/2020/10/08/entertainment/texas-grand-jury-indicts-netflix-cuties-trnd/index.html.