From Judge Michael Truncale's opinion today in Netflix, Inc. v. Babin (E.D. Tex.) (for the backstory on the prosecution, see here):
Netflix alleges that Tyler County's District Attorney, Lucas Babin, is "abusing his office" through a "singular and bad-faith effort" to maliciously prosecute Netflix in violation of the United States Constitution and in retaliation against Netflix for exercising its First Amendment rights. Babin initially charged Netflix in 2020 under Tex. Penal Code § 43.262 [governing "Possession or Promotion of Lewd Visual Material Depicting Child" -EV]. This was not done quietly. Babin courted media attention by emphasizing his integral role in securing an indictment.
On October 26, 2021, in the case of Ex Parte Lowry, the First District [Texas] Court of Appeals held that Section 43.262 was facially unconstitutional. Notably, the appellate court specifically referenced Babin's prosecution of Netflix as evidence of the statute's overbreadth.
In light of the Lowry decision, Netflix filed a state pre-trial habeas petition, raising a facial challenge against Section 43.262 under the First and Fifth Amendments. Then, in what Netflix alleges was another act of "gamesmanship," Babin sought a 120-day delay in Netflix's hearing on the habeas action. But in the interim, he initiated new grand jury proceedings to obtain additional indictments against Netflix under Section 43.25, which allowed him to 'drop' the charge under Section 43.262. When it became clear that Babin had outmaneuvered Netflix, using the delay to bolster his "bad-faith" prosecution and to shut down any avenues for pre-trial relief in the state system, Netflix turned to the federal courts.
