Netflix is distributing the film Cuties, which includes scenes focusing on the pubic areas of 11-year-old girls, including numerous scenes of girls "twerking" and "humping" in skimpy costumes.

The public outrage and massive cancelations of Netflix subscriptions have prompted Netflix and its media allies to "justify" Cuties as "social commentary" that exposes the sexual exploitation of children.  They're sexually exploiting children in order to protect them from exploitation.  We right-wing rubes just don't get it.

The claim is as indefensible as a scientist who poisons individuals and pleads that he was merely demonstrating that poison is harmful.

Netflix is essentially claiming that Cuties, taken as a whole, has serious literary, artistic, political, or scientific value.  Assuming for the sake of argument that it might have such value, that does not constitute a defense to the production, distribution, transportation, advertisement, or possession of child pornography, nor does the prosecution have to prove that, taken as a whole, it has no such value.

In New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court held that child pornography is illegal if it contains a scene of a minor engaging in sexually explicit conduct:

The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value."

Netflix should be prosecuted under federal and state child pornography and sexual exploitation laws.

• 18 USC §2423 (a) prohibits knowingly transporting a minor in interstate or foreign commerce with the intent that the minor engages in prostitution or in any sexual activity.
• 18 USC §2252A defines activities relating to material constituting or containing child pornography.
• 18 U.S. Code §2256. Child pornography definitions include "graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person [under the age of eighteen years]."

U.S. v. Kemmerling, 285 F.3d 644 (8th Cir. 2002): A picture is "lascivious" only if it is sexual in nature.  Thus, the statute is violated, for instance, when a picture shows a child nude or partially clothed, when the focus of the image is the child's genitals or pubic area, and when the image is intended to elicit a sexual response in the viewer.

U.S. v. Horn, 187 F.3d 781 (9th Cir. 1999) reh, en banc, den.  A depiction is lascivious when the child is nude or partially clothed, the focus of the depiction is child's genitals or pubic area, and the image is intended to elicit a sexual response in the viewer.

The Supreme Court held in Osborne v. Ohio 495 U.S. 103 (1990), that it is constitutionally permissible to ban the possession and viewing of child pornography. 

Thus, anyone who purchases a DVD of Cuties or copies the broadcast, take note.  You can be fined and imprisoned for several years — 18 USC 2252.

Netflix, consult your attorney: every scene in Cuties showing a "lascivious exhibition of the genitals or pubic area" and each girl involved in each scene will qualify as a separate count in an indictment against any person at Netflix and its agents who were knowingly involved in any aspect of its production, distribution, transportation, advertisement, or possession of child pornography, 18 USC 2252.

Photo credit: Twitter video screen grab.

The fine and imprisonment are much larger when the girls are under 12 years.

Cancelation of subscriptions is the least of your worries.

Janet LaRue served as chief counsel at Concerned for Women, legal studies director at the Family Research Council, and senior counsel for the National Law Center for Children and Families.  She is a member of the California and U.S. Supreme Court Bars and co-author of How to Protect Your Child in an X-Rated World.  Ms. LaRue has spoken, debated, and written extensively on abortion, pornography, judicial activism and nominations, freedom of speech, and religion.