A federal judge issued an injunction last month that bars a Texas prosecutor from bringing child pornography charges against netflix for the distribution of French films”cute.”

But the district attorney, the Tyler County district attorney Lucas Babindo not give up.

In a notice filed Monday, Babin said he would appeal the decision to the 5th Circuit Court of Appeals.

The struggle for “Cuties” began over two years ago when Netflix began streaming the film in the United States. The film tells the story of an 11-year-old Senegalese immigrant who joins a dance troupe that performs provocative routines. The film sparked an uproar in the United States, with some politicians accusing the child actors of being sexually exploited.

Babin, a former soap opera actor and son of a local congressman, won a grand jury indictment against Netflix for allegedly promoting obscene visual material of children. The indictment raised the possibility that Netflix could be forced to defend itself in a criminal trial in tiny Woodville, Texas (population 2,403).

Babin brought the indictment under a Texas 2017 law which criminalized the obscene display of the “genital organs or pubic region of an unclothed, partially clothed or clothed child”. This law went beyond the state’s child pornography law, which only applied to undressed children.

In October 2021, an appeals court in Texas struck the statute. In that case, a defendant argued that the law would criminalize Instagram influencer teens who post “provocative, but dressed-up, photos of themselves online for their millions of followers.” The first appeals court agreed that the law was unconstitutional and overbroad. The Harris County District Attorney’s Office has since appealed that decision to the Texas Court of Criminal Appeals.

In response to the ruling, Netflix filed a habeas corpus petition in November 2021, arguing that the Tyler County indictment should be dismissed. On the eve of a hearing on the motion in March, Babin dropped the indictment and obtained four new indictments for alleged violations of the Child Pornography Act.

Netflix then asked a federal court to intervene to stop the lawsuits, arguing that Babin was acting in bad faith and violating the First Amendment.

During a hearing in September, U.S. District Judge Michael Truncale had a discussion with Babin about whether an image from the film actually qualified under child pornography law as a depiction of a child’s genitalia. ‘a kid.

“Maybe my eyes aren’t as good as they used to be, but isn’t that panties as opposed to a genital organ that we see, or am I missing something?” asked the judge.

Babin replied, “No, Your Honor. It’s – she wears – it looks like these shorts. But, Babin argued, it should be up to the jurors to decide whether it was a violation of the Child Pornography Act.

On November 14, Truncale granted a preliminary injunction, believing that Netflix was likely to prevail on the merits of its argument at trial. In the decision, Truncale found that Babin brought the child pornography charge “without hope of a meaningful conviction, and in retaliation for Netflix’s exercise of its constitutional rights.”

Netflix had argued that Babin brought the child pornography charge in retaliation for Netflix exercising its right to file a habeas petition on the previous charge.

On Monday, Babin filed a notice of appeal with the 5th Circuit and also asked to stay the district court proceedings pending the appeal. Truncale granted the stay and canceled a Jan. 30 date for a bench trial in the case.