Friday, July 24, 2015

What Does the Ninth Circuit Have against the First Amendment?


In 2014, the Ninth Circuit Court of Appeals issued a secret order directing YouTube to remove from its website a highly controversial political film pertaining to ongoing international political events and raising issues of immense public interest. The film had sparked global news stories and generated significant discourse concerning Islamic extremism. Almost immediately, it also elicited a violent response. Congressional leaders linked the film's online release to the September 11, 2012 attack on the United States Consulate in Benghazi, Libya in which the U.S. Ambassador was killed. High-ranking government officials had publicly addressed the film's impact on foreign relations. In an address to the United Nations, the President of the United States discussed the controversial film directly, explaining, “I know there are some who ask why we don't just ban such a video. And the answer is enshrined in our laws: Our Constitution protects the right to practice free speech.” Yet the Ninth Circuit would go on to do just that; in its secret order, the court banned YouTube from showing the film. The prior restraint remained in effect for more than a year.

On what principle did the Ninth Circuit rely to justify this unprecedented censorship of political expression: That the film presented a significant threat to national security? That it posed a serious risk of interfering with foreign policy? That it constituted fighting words or presented an imminent threat of immediate lawless action? No, the court based its gag order solely on the protections afforded a private litigant under the Copyright Act.
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In 2011, an actress responded to a casting call for a new film. The film was purported to be an action-adventure thriller set in ancient Arabia. The actress was cast in a cameo role and earned $500. She received a few pages of script and her lines consisted of two sentences: “Is George crazy? Our daughter is but a child....” She was directed to seem concerned as she delivered the lines.

But the writer-director pulled a bait-and-switch and actually had intended to make a different film, an anti-Islam polemic which ultimately entitled Innocence of Muslims. The crude film depicted the Prophet Mohammed in a scandalous light. The actress' image was included in 5-seconds of the film with a dubbed voiceover replacing the lines the actress actually had read, with dialog in which her character now asked, “Is your Mohammed a child molester? Our daughter's but a child....”

The following year after the casting call, the Innocence of Muslims was uploaded to YouTube. It was translated into Arabic and drew outrage across the Middle East, reportedly resulting in violent protests. Shortly after the Benghazi attack, an Egyptian cleric issued a fatwa against anyone associated with the video and called upon the Muslim youth in America and Europe to kill the director, the producer, the actors, and everyone who helped and promote it. The actress received multiple death threats.

The actress contacted Google, which owns YouTube, and asked the company remove Innocence of Muslims from the video-sharing website. She also sent Google five takedown notices under the Digital Millennium Copyright Act, claiming YouTube's broadcast of the film infringed her copyright in her “audio-visual dramatic performance.” Google declined to remove the film. The actress filed suit against Google in the U.S. District Court for the Central District of California, alleging copyright infringement and related claims, and moved for injunctive relief on the copyright claim, seeking to bar Google from hosting Innocence of Muslims on YouTube or any other website run by the company. The district court denied Garcia's motion for a preliminary injunction, concluding she had not demonstrated that the requested relief would prevent any alleged harm (at that point, the trailer already had been on the Internet for five months) and she had not established a likelihood of success on the merits because the nature of her copyright interest was unclear and, even if she could establish a copyright interest, she had granted the film directors an implied license to distribute her performance as a contribution incorporated into the indivisible film as a whole. Following the denial of her request for an injunction, she appealed to the Ninth Circuit.

That the Ninth Circuit's three-judge panel had little time for the First Amendment was apparent when, during oral argument, one judge chastised Google's attorney for asserting how seriously Google and YouTube take their role as a forum for free speech. When the attorney asserted that position - - and tried to illustrate the First Amendment interests being served in light of the fact the film had garnered global attention and had had an impact on such issues as who would serve as the next Secretary of State - - the judge cut him off, and said he was surprised the attorney was willing to present such a cavalier argument to the court. (It is unclear whether the judge was aware that the Ninth Circuit maintains its own YouTube channel on which it makes oral arguments in its proceedings available to the public.)

Then, on February 19, 2014, the court issued its secret order, requiring Google to take down all copies of the film from its website and any other platforms under Google's control, within 24-hours, and to take reasonable steps to prevent further uploads of the film. The three-judge panel also included the unprecedented further requirement, further muzzling Google, ordering that "Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process," until the Court could issue its formal opinion in the case. Two days later, the same panel issued a second order explaining that it had issued the February 19 order in advance of its formal opinion, specifically "to prevent a rush to copy and proliferate the film before Google can comply with the order." The court also prohibited disclosure of its second order, until the formal opinion was published.

In just two days, the Ninth Circuit had mandated that a politically charged film be taken down, barred Google from permitting it to be re-uploaded, and twice barred Google or anyone else from even disclosing the existence of the Court's take-down order.

Another week passed before the court published its opinion in the case on February 26, 2014. The next day, Google filed an emergency motion, asking the court to stay its take-down ruling until Google could pursue further court review before a larger, en banc 11-judge panel of judges on the Ninth Circuit."  The motion was based on concerns about issuing a prior restraint in light of the "intense public interest in and debate surrounding the video...." Google explained that it and the "public will suffer irreparable harm to their First Amendment and other constitutional freedoms" if the injunction were allowed to stand, and that the First Amendment protects "not just the right to express information, but to receive it."

That is particularly true, Google offered, "when the information bears on issues of public concern; the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom." (Internal punctuation omitted). "If the public cannot access raw material at the center of public debate," it continued, "citizens cannot make up their own minds about the pressing issues of the day. That principle is never more true than here. Innocence of Muslims has been the focus of wide debate since it was first posted.... But due to the panel’s sweeping takedown order, the public will be unable to use YouTube to view the video at the center of the public discussion." The court disagreed and denied the emergency motion, but amended the take-down order to permit Google to post or display an edited version of the film, omitting a segment of the film in which the purported copyright holder appeared.  

Notably, neither the court's opinion on the merits nor the order denying the stay request addressed the First Amendment, except to explain that the First Amendment does not protect copyright infringement. See Garcia v. Google, Inc., 766 F.3d 929, 939 (9th Cir. 2014).  In the meantime, a single judge of the larger Ninth Circuit Court of Appeals requested a vote whether to rehear the 3-judge panel's decision en banc, by the larger panel. However, a majority of active judges eligible to grant the request voted against doing so and, instead, allowed the court's ruling on the emergency motion to stand. In effect, a majority of the Ninth Circuit judges permitted the prior restraint to remain in place for the next year and three months without requiring any First Amendment analysis whatsoever.

The 3-judge panel's opinion went on to find a potential, albeit doubtful, novel theory of copyright protection might vest copyright rights in the actress for her 5-second performance in the video.  Google then petitioned for an en banc review and eventually convinced a larger panel of the Ninth Circuit to reverse the take-down order – which found that "a weak copyright claim cannot justify censorship in the guise of authorship." But that ruling was not issued until this spring, fifteen months after the gag order was issued. By then, the controversy surrounding the film and public discussion about it had largely quieted.

In a scathing critique of his colleague's conduct, one judge, Hon. Stephen Roy Reinhardt, writing separately, explained that by taking these steps the court had
not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement. First we issued an order that prohibited the public from seeing a highly controversial film that pertained to an ongoing global news story of immense public interest. Then we ordered that the public could see it only if edited to exclude a particular scene, thereby conditioning freedom of expression on a judicially sanctioned change in the message expressed. We did this primarily because persons or groups offended by the film’s message made a threat—in the form of a fatwa—against everyone connected with the film. By suppressing protected speech in response to such a threat, we imposed a prior restraint on speech in violation of the First Amendment and undermined the free exchange of ideas that is central to our democracy and that separates us from those who condone violence in response to offensive speech.
In permitting the gag order to remain in place for so long, Judge Reinhardt admonished, the court had done "irreparable damage to free speech rights" and had "unconscionab[ly] allowed an infringement of First Amendment rights to remain in effect for fifteen months...." While not minimizing concerns for the actress' safety, he clarified that such threats nevertheless do not justify suppressing speech of great national import.  He continued,
A function of free speech under our system of government is to invite dispute.... Controversial or offensive ideas may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.... By censoring Innocence of Muslims and limiting the public’s access to the film, we allowed fear of those opposed to the film’s message to trump our commitment to a robust First Amendment....
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.... For over a year we violated the First Amendment by censoring a film that had become part of a global news story of utmost importance. Every restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Restoring First Amendment freedoms after a lengthy period of unconstitutional judicial censorship does not cure the problem. Those freedoms should never have been denied, and the exercise of freedom that was lost pending en banc proceedings cannot be recovered.
In the fifteen months since the court refused to rehear the case on an emergency basis, there have been numerous developments regarding threats by religious extremists who reject pluralist values—the rise of the Islamic State of Iraq and Syria (ISIS), the murderous attack on Charlie Hebdo, the barbarous beheadings of innocent civilians, the kidnappings of young girls and their enslavement because of their religious membership, the bitter warfare between Shiites and Sunnis and among their terrorist allies, the emergence of groups such as Boko Haram, the failures of nascent democracies to take hold in the wake of the Arab Spring, and the spread of increasingly virulent anti-Semitism throughout Europe, if not the world. Setting aside the fact that Innocence of Muslims is an offensive film of poor quality, it was part of the ongoing debate pertaining to such events and its voice was silenced while the continuing debate was at a peak. Although the inability to view this particular film may have been no great loss, the suppression of speech was, as a matter of principle, intolerable under the First Amendment: a court ordered a political video removed from the public sphere because of threats of violence, thereby changing the content and context of ongoing global discourse. The constitutional violation is not cured by restoring access to the video well over a year later, long after the time when it was most relevant to the debate and of greatest interest to the public....
The vitality of civil and political institutions in our society depends on free discussion.... The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart from totalitarian regimes.... Innocence of Muslims may indeed be offensive, but we do not accept political terrorism or even judicial censorship as the answer. By ordering the removal of the filmmaker’s version of Innocence of Muslims for well over a year, we inappropriately cast aside the very tradition of robust dialogue that separates us from those who would wish harm upon persons whose speech they find offensive. It is no answer to these basic concepts that the gag order was eventually vacated.
Judge Rinehart was not part of the 3-judge panel or the 11-member en banc panel that would later hear and decide the appeal. However, the significance of the developments in the Ninth Circuit got his attention, and he used the opportunity to file a dissent to the en banc panel's order refusing to rehear the takedown order on an emergency basis. Thus an amended order denying the request was issued in order to permit judge Reinhardt to file his dissent to that order.  This unusual procedural move highlighted the fact not only had the original 3-judge panel issued the takedown order without addressed the significant First Amendment issues presented, but that, fifteen months earlier, the larger panel of the full Ninth Circuit was given the opportunity to consider the First Amendment issues and potentially to lift the prior restraint, and majority of judges had voted not to do so.  Not one other judge on the Ninth Circuit joined judge Reinhardt's dissent.

This is not the first time the Ninth Circuit has minimized consideration of the First Amendment when faced with a copyright infringement action. Indeed, that is increasingly the typical approach when copyright law intersects with the freedom of expression. For example, in 2012, the court decided another copyright/First Amendment case, in Monge v. Maya Magazines, Inc. That case concerned whether a magazine could be held liable for copyright infringement after it published photographs it acquired from a third party depicting the wedding night of pop singer and model Noelia Lorenzo Monge. The trial court answered that question: no, as a matter of law. According to the trial court, the magazine was protected against liability by the doctrine of fair use. However, on appeal, the Ninth Circuit disagreed, and held the magazine could be liable for publishing the photographs. Despite the plain implications that arise when a member of the press faces sanctions for the content of its publication, the Ninth Circuit did not address the First Amendment or of the role that a free press plays in furthering a full and robust civil and political discourse.

It is sometimes said that First Amendment concerns are subsumed within existing copyright concepts, such as whether a particular work is a copyrightable expression of an idea in the first place, rather than the idea itself (which is not copyrightable); and (2) if so, whether an unauthorized use of a copyrightable work is nevertheless justified under the doctrine of fair use. (Among other things, the fair use provisions of the Copyright Act require consideration as to whether the particular use was made for purposes of news reporting.) And it is true that copyright protection is found in the body of the U.S. Constitution, whereas explicit protection for the freedom of expression was not added until later, when the First Amendment was adopted. But that circumstance would justify an interpretation that the First Amendment should supersede an incompatible prior provision in the original text of the Constitution. It does not follow that copyright law automatically trumps the First Amendment, or that courts should feel free to ignore free speech issues where copyright infringement claims are concerned. Indeed, where claims are asserted based on novel theories that alter the traditional contours of copyright protection, the Supreme Court has suggested that further First Amendment scrutiny may be necessary.

Yet, in many copyright cases, courts avoid any discussion of the First Amendment and never apply any independent First Amendment analysis. In the original Garcia v. Google Ninth Circuit opinion, the Court ruled that even though the First Amendment issues had been squarely presented, that did not trigger even a consideration of the doctrine of fair use - - which is purportedly supposed to encompass First Amendment concerns.  And in any event, the Ninth Circuit did not require any evaluation of traditional First Amendment criteria, including that the party seeking to enjoin speech must overcome a heavy presumption that such relief is unconstitutional. Garcia v. Google demonstrated yet again that where copyright infringement claims are concerned, the First Amendment is anything but first in the eyes of the Ninth Circuit.

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