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.
●
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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