The case isn't against the director, though. It's against Netflix, an American corporation. So the First Amendment would apply easily to them. It would apply to the French director, too, if she somehow ended up indicted in Texas, but that hasn't happened and probably will not.
The film itself is almost certainly Constitutionally protected. It is an actual cinematic production with a plot, an apparent message, however hamhanded it may be, and some kind of message beyond merely being 90 minutes of twerking. It's likely to pass the
Miller test. Things like the
Dost test mentioned in this thread are not likely to apply.
However, a criminal court in a deeply rural Texas county may quite simply disregard this. It is a criminal case, and they generally aren't used to addressing First Amendment concerns, certainly not in regards to claims of child pornography. Netflix can and certainly will raise these issues, but they may not be addressed until appeals, and that won't be for quite some time. Unless they get it dismissed pretrial, there will be substantial litigation.
What else can Netflix do? They could try to cut a deal with the prosecution, pleading to something with a fine or that diverts the case without a conviction, just as a human defendant could. They could attempt to file a lawsuit in federal court seeking an injunction or some sort of writ prohibiting the prosecution as being against the First Amendment. However, something called
Younger abstention would probably preclude that.
Younger involved a criminal defendant attempting to enjoin, on civil rights ground, a state prosecution. The abstention doctrine named after it essentially means you can't do that. State courts are presumed to be competent to decide such constitutional issues, and challenges at the federal level, such as injunctions or habeas writs, must wait until the criminal proceedings, and any direct appeals, are exhausted.
They could also attempt a similar route after and if dismissal is denied, with some kind of emergency appeal, which in Texas would go to an appeals court and then, instead of the Texas Supreme Court, the specialist Texas Court of Criminal Appeals, a uniquely Texas institution which is the court of last resort for Texas criminal appeals. After that, there's the Supreme Court of the United States.
Similarly, they could attempt a civil lawsuit in Texas court, again seeking some kind of prohibition against the prosecution. And again, this would go to an appeals court and then the Texas Supreme Court and then the Supreme Court of the United States (the last two being able to decline to hear the case).
So what happens if it goes to trial? Who knows? If the trial court judge refuses to dismiss it and it gets in front of a deeply rural Texas county jury, they may decide they don't give a shit about
Miller or any of that shit. They'll be sending the foreman to the judge to ask where's some rope.
I think the movie ultimately ends up protected under the First Amendment, whether at the state appeals court level or otherwise, even if there's a conviction. However, this is the movie itself.
There's another wrinkle, though.
The film itself could be protected under the First Amendment while the advertisements are not. This has actually happened in the 2008 Supreme Court case
United States v. Williams. The defendant in that case advertised material as containing pornographic portrayals of children, although this was not true. The law criminalizing such advertising was upheld 7-2, even though the law it was replacing, which criminalized the possession of material advertised as such, was found unconstitutional in the previous better known case
Ashcroft v. Free Speech Coalition.
Even if the movie is protected, in context, the advertisements could be seen as promising illegal child pornography content. Additionally, advertising, as commercial speech, is subject to a lower level of First Amendment protection than artistic or political speech.
