The Volokh Conspiracy
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A sharp disagreement, on First Amendment grounds, with the panel's initial decision to order Google not to display actress Cindy Garcia's scene from "Innocence of Muslims," available here (some paragraph breaks added):
This is a case in which our court 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.
Although I agree with the en banc opinion that is being issued in the normal course well over a year after the unconstitutional order, I dissent from this court's earlier refusal to go en banc immediately on an emergency basis. Only by doing so could we have prevented the irreparable damage to free speech rights in the lengthy intervening period until we could take the case en banc under our regular procedure. The unconscionable result is that our court allowed an infringement of First Amendment rights to remain in effect for fifteen months before we finally issued our opinion dissolving the unconstitutional injunction issued by a divided three-judge panel….
By refusing to immediately rehear this case en banc, we condoned censorship of political speech of the highest First Amendment magnitude. Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interest. Its release sparked so much outrage in the Muslim world that a fatwa issued against everyone involved in the film, the Afghan government asked Google to remove it, and Google blocked the video in Libya and Egypt in response to protests.
It is considered by many, including some congressional leaders, to be a cause of the riots in Benghazi that led to the death of the United States Ambassador to Libya. See David K. Kirkpatrick, A Deadly Mix in Benghazi, N.Y. Times (Dec. 28, 2013). Its role in the Benghazi attack has been the subject of congressional hearings, and high-ranking governmental officials have testified about its impact on foreign relations. See Aaron Couch, Clinton Asked About 'Innocence of Muslims' During Benghazi Hearing, The Hollywood Reporter (Jan. 23, 2013). President Obama even discussed the film in an address to the United Nations, explaining to those gathered: "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." Clearly, Innocence of Muslims is part and parcel of international political events and discourse. As such, it "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection."
The censorship of Innocence of Muslims by our court violated the public's First Amendment right to view a film of immense significance and public interest. "The right of citizens to inquire, to hear, to speak, and to use information … is a precondition to enlightened self-government and a necessary means to protect it." "[T]he Constitution protects the right to receive information and ideas," and that protection "is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom."
Widespread and uncensored access to Innocence of Muslims was critical so that the public could view the film, make its own judgment about its role and significance, and debate the appropriate response of a pluralist society to threats of revenge against controversial or offensive speech—whether those threats are made by a foreign government, foreign or domestic terrorists, or religious fundamentalists of any stripe.
The panel primarily justified its censorship of Innocence of Muslims based on threats to Garcia's safety from persons offended by the film, but "[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." As lawful political speech, the public's access to Innocence of Muslims could not constitutionally be restricted based on others' reaction to the speaker's message. [Footnote: Innocence of Muslims did not involve incitement to imminent unlawful action and neither was it "within that small class of 'fighting words'" that may be prohibited.] That is, protected speech cannot "be punished or banned, simply because it might offend a hostile mob," and "constitutional rights may not be denied simply because of hostility to their assertion or exercise." If allegations of grave and irreparable danger to national security were insufficient to allow suppression of the Pentagon Papers, then threats to persons involved in making Innocence of Muslims could not justify the suppression of speech of great national import in this case either.
[Footnote, moved:] The panel also asserted that Garcia was likely to succeed in her copyright claim, but the theory under which she claimed to own the portion of the film in which she appeared as an actress was entirely without legal precedent and bordered on the frivolous. Indeed, as the majority explains, even valid copyrights are not "categorically immune from challenges under the First Amendment," Eldred v. Ashcroft, 537 U.S. 186, 221 (2003) (internal quotation marks and citation omitted). See also Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988) aff'd sub nom. Stewart v. Abend, 495 U.S. 207 (1990) (denying permanent injunction against copyright infringement because "an injunction could cause public injury by denying the public the opportunity to view a classic film ….").
"[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. In that circumstance, it was contrary to the fundamental obligation of our judiciary and a violation of this court's constitutional duty for us to fail to go en banc in response to the emergency call.
It is of no comfort that the panel shortly amended its original gag order to allow Google to show versions of the film with Garcia's five-second appearance deleted. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." A prior restraint is no less offensive to the First Amendment simply because it enjoins only a certain quantity of words or a small portion of a film. To the contrary, "it is wholly inconsistent with the philosophy of the First Amendment" for a court to pick and choose which speech and how much of it may be permitted as opposed to being enjoined. Indeed, it exacerbates the First Amendment injury for a court to condition the right to speak on a change in the message being expressed.
Nor does the fact that the suppression of speech ended with the en banc opinion lessen the violence done to the 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. "[E]very 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….