9th Circuit Judge Slams His Colleagues For First Amendment Failings In Waiting So Long To Fix Cindy Garcia Ruling

from the good-move dept

We already wrote about the 9th Circuit’s en banc ruling that effectively “dissolved” the 9th Circuit’s earlier, horrible, ruling in support of Cindy Garcia, ordering Google/YouTube to block any and all copies of the “Innocence of Muslims” videos that she appeared in (for just a few seconds). However, right before that ruling came out, a rather interesting amended dissent to an earlier ruling in the case came out. Written by Judge Stephen Reinhardt, he takes issue with the fact that a year ago, the 9th Circuit refused to do an “emergency rehearing” of the case. While it did eventually rehear the case, Judge Reinhardt notes that the end result was rather insane: because the court refused to move on the matter quickly, a perfectly legal video was censored from the internet for over a year. And that has tremendous First Amendment concerns:

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.

Preach it, Judge Reinhardt. The Judge wants to send a message to his colleagues on the court about the ridiculousness of this situation:

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.

And, as he points out, the court basically sanctioned blatant censorship because some people were offended by a video:

By leaving in place the panel?s unprecedented gag order for well over a year, we surrendered to the threats of religious extremists who were offended by the film. For a United States court to do so was anathema to the principles underlying the First Amendment. It is remarkable that this late in our history we have still not learned that the First Amendment prohibits us from banning free speech in order to appease terrorists, religious or otherwise, even in response to their threats of violence.

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….


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.? Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added). 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. See Stanley v. Georgia, 394 U.S. 557, 566 (1969). 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.? Elrod v. Burns, 427 U.S. 347, 373 (1976). 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.? New York Times Co., 403 U.S. at 727 (Brennan, J., concurring). 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.

Further, Judge Reinhardt puts this censorship in context:

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.

Thank you, Judge Reinhardt, for saying what many people have been thinking about this ruling since it first came out. It’s amazing how quickly some will jump to supporting prior restraint when it is speech they don’t like. It is good to be reminded that this is not acceptable — especially by a court.

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Comments on “9th Circuit Judge Slams His Colleagues For First Amendment Failings In Waiting So Long To Fix Cindy Garcia Ruling”

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Sad Ex-Wired reader says:

Re: Re: Julia Greenburg on Wired

From the post by Ms. Greenburg: “But in our very wired world, where nearly everyone has a video-recording device in their pocket and the power to upload that video instantly—it also means that nearly anyone, filmed nearly anywhere, cannot lay claim to their image, at least under copyright law—one of the most powerful legal tools creators themselves have often wielded to get content quickly removed from the Internet.”

This has never been true, an easy example being strangers in your vacation snapshots. Am I correct when I say a picture I snapped of my kids at Disneyland with you (coincedentally) in the background would not assign any copyright to you? Ms. Greenburg’s sentence above implys that it was possible and now is not.

That said, I also agree that much of the text above that quote was a fair discription of the sequence of events.


John Fenderson (profile) says:

Re: Re: Re: Julia Greenburg on Wired

“Am I correct when I say a picture I snapped of my kids at Disneyland with you (coincedentally) in the background would not assign any copyright to you?”

You are entirely correct. There is a complex gray area when it comes to whether or not you can publish those photos, but that is completely unrelated to copyright.

Pragmatic says:

I’ll let Ken “Popehat” White do the talking here:

Speech should not be banned because it is “provocative,” as they use that word. Accepting that premise gives every hothead in the world the right to control our speech by indulging their subjective reactions to it… Established First Amendment exceptions are carefully defined and objective, but “provocation” as a measure of censorship cedes all authority to the offended and provoked.


tl;dr: If people saying things you don’t like makes you prone to violent reactions, you need a straitjacket more than we need ball-gags.

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