Thomas A. Berry
The Fifth Circuit has had a mixed record lately on First Amendment issues (with the biggest lowlight being its decision upholding Texas’s unprecedented regulations of social media, a decision that Cato has urged the Supreme Court to reverse). But two recent Fifth Circuit decisions in First Amendment cases are worth noting and praising. Both decisions came in cases with charged and controversial backgrounds, and both decisions curbed First Amendment violations by state and local Texas officials. Not coincidentally, both opinions were written by Judge Don Willett, one of the most liberty‐friendly federal appellate judges.
The first decision came in the case Netflix v. Babin. That case was set in motion in 2020 when Netflix began streaming the French film Cuties. The film follows an 11‐year‐old Senegalese immigrant, Amy, torn between her family’s conservative culture and a more progressive French society. In the film, Amy is shown joining a pre‐teen dance group (the “Cuties”) whose sexualized routines are heavily influenced by social media.
The film’s message is critical of the influence of social media on young girls, but the film itself attracted significant controversy for its scenes depicting the dance group’s provocative performances.
One Texas prosecutor went beyond merely criticizing the film and chose to criminally prosecute Netflix for streaming the movie. Lucas Babin, the district attorney for Tyler County, Texas, first brought charges against Netflix under a Texas obscenity law. But during that prosecution, a Texas appeals court in a separate case held that the law Babin had charged Netflix under was itself unconstitutional.
Once this decision was issued, Netflix moved to have its case dismissed on the same constitutional grounds. But rather than drop the case entirely, Babin surprisingly changed his entire legal theory of the case. He dropped the charge against Netflix under the obscenity statute but then brought new charges against Netflix under a more serious child pornography statute. This prosecution made no sense because there is no underage nudity in Cuties, something the state of Texas itself had previously conceded to be a prerequisite for conviction under the child pornography statute.
Netflix then filed suit against Babin in federal court, asking for an injunction to stop Babin’s new prosecutions. While the general rule is that federal courts do not step in to stop state prosecutions, an exception exists when the state prosecution is brought in bad faith. A federal district court in Texas agreed with Netflix, finding that Babin brought the charges in bad faith and enjoined Babin from further prosecuting Netflix.
When Babin appealed to the Fifth Circuit, Cato joined a broad coalition of organizations that defend and advocate for First Amendment rights to file an amicus brief supporting Netflix. Our brief explained why it is important that federal courts remain available as a last resort to quickly end bad‐faith state prosecutions that infringe First Amendment rights.
In a decision issued last month, the Fifth Circuit also agreed with Netflix and upheld this injunction. In his opinion for a three‐judge panel, Judge Willett wrote that “While states certainly have a legitimate interest in the enforcement of their criminal laws, they have no such interest when the enforcement of those laws is carried out in bad faith.” The panel held that “the district court was best positioned to make the largely credibility‐based determination of bad faith.”
The panel found plenty of evidence supporting bad faith, including Babin’s decision to show a grand jury only curated clips rather than the entire movie. As Judge Willett put it, “Babin’s refusal to show the grand jury the entire film (a mere 96 minutes) gives us reason to question the evenhandedness of his prosecutorial tactics.”
The panel also noted the suspicious timing of Babin’s new charges coming soon after Netflix had moved to dismiss the first charge: “The inflection point—Netflix’s assertion of its First Amendment rights—is difficult to overlook.” After recounting each of Babin’s questionable decisions, the panel could not “help but step back and conclude that the whole picture does not resemble what we would otherwise presume to be a good‐faith prosecution.”
The second excellent Fifth Circuit decision came in the case Book People v. Wong. In 2023, Texas passed the “Restricting Explicit and Adult‐Designated Educational Resources” (READER) Act. The READER Act applies to any bookseller that supplies books to Texas public schools. The law would force these booksellers to rate every book they have sold or plan to sell to such a school with one of three labels: “sexually explicit,” “sexually relevant,” or “no rating.” Booksellers would be required to submit these ratings to the Texas Education Agency (TEA), which would then post the ratings online.
A bookseller that refuses to comply would be banned from selling any books to Texas public schools. And the TEA would have the power to unilaterally change any submitted rating, with booksellers who refuse to accept the TEA’s “corrected” rating likewise banned from selling any books to Texas public schools.
A group of booksellers and organizations sued, arguing that the law violated the First Amendment. A federal district court blocked the law, finding that it likely violated the First Amendment by compelling booksellers to express ratings they may not agree with. The case was appealed to the Fifth Circuit, where Cato joined the Foundation for Individual Rights and Expression and the National Coalition Against Censorship in an amicus brief supporting the booksellers. Our brief explained that the law requires booksellers “to publish lists voicing value judgments they do not share about hundreds or even thousands” of books, making it a textbook case of impermissible compelled speech.
In an opinion issued just last week, Judge Willett again wrote for a three‐judge panel and agreed with the booksellers, affirming the district court’s injunction. (Indeed, the makeup of this panel was identical to the panel in Netflix, with Judge Willett joined by Judges Jacques Wiener and Dana Douglas.) Judge Willett wrote that the law’s rating requirement forces booksellers “to ‘either speak as the State demands’ or suffer the consequences.” Judge Willett rejected the government’s argument that the compelled ratings are permissible under precedents that have upheld compelled disclosures of “purely factual and noncontroversial” information.
As Judge Willet noted, “Balancing a myriad of factors that depend on community standards is anything but the mere disclosure of factual information. And it has already proven controversial.” Judge Willett concluded that the booksellers are “thus likely to succeed on their compelled speech claim.”
For the second time in as many months, the Fifth Circuit has rightly stepped in to protect and affirm core First Amendment rights. As these cases show, elected officials can and do abuse their power. In these two cases, the abuses may have been motivated by the urge to score points in a perceived culture war. But whatever the reason, an engaged judiciary is absolutely necessary as a guardian against the abuses of prosecutors, legislators, and any other government officials who choose to put their own political and policy goals ahead of the Constitution.