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Washington Journal of Law, Technology & Arts

Abstract

In 2020, Netflix released on its streaming service the movie Cuties, a coming-of-age story about an 11-year-old Senegalese immigrant who joined a dance group. The film is a commentary against the hyper-sexualization of children and the pressure young girls face from social media and society and received a director’s award at the Sundance Film Festival. Its release, however, kicked off a culture war, prompting a movement to cancel Netflix subscriptions in response to the film’s sexually provocative imagery of young girls. The movie’s award-winning director defended the film’s message, explaining that the film was her own story, struggling as a young girl with the expectations of two different societies: those of Western Europe, which objectified women’s bodies and traditional Senegalese, which was rooted in oppression. The outrage, in contrast, concerned the depictions of real children, in what was considered lewd behavior and had no serious value.

However, the focal point of the controversy and concern remains misplaced. The debate need not center upon whether the conduct was sufficiently lewd or instead of serious value, a specious inquiry at best for nonconsenting participants. Why? Today, the film’s message, an important social commentary about the sexualization of children, can be made without the need to use real children who cannot legally consent or who may not even understand what their actions convey. Art should be allowed to address taboo subjects, such as the sexualization of children, without fear of suppression under criminal law. With the advent of artificial intelligence (“AI”), the serious literary, artistic, political, or scientific value of the film that Netflix asserted can be preserved without the use of minors. Therefore, when weighing that permanent record of forever being depicted in sexualized content (for which the participant could not legally consent) against a realistic version of the same message without an actual child, the balance should be struck in favor of laws protecting minors.

The concern about the harm to the child that prompted the Ferber Court in 1982 to exempt child pornography from the protection of the First Amendment is now avoidable harm that need not compromise the message; thus, criminal laws that recognize that truth should be constitutionally permissible. This conclusion necessarily permits a more generous statutory definition of conduct that can be proscribed with criminal penalties because there are other ways to convey the message without the exploitation, or even the involvement, of actual children, at least with respect to commercial producers. Our paper examines this new paradigm from a constitutional perspective, incorporating a discussion of the technological advancements in AI juxtaposed against the preservation of free speech along with the rights of children with respect to commercial producers and distributors.

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