Cindy Garcia v. Google, Inc. ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY LEE GARCIA, No. 12-57302
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-08315-
MWF-VBK
GOOGLE, INC., a Delaware
Corporation; YOUTUBE, LLC, a
California limited liability company, AMENDED
Defendants-Appellees, ORDER
and
NAKOULA BASSELEY NAKOULA, an
individual, AKA Sam Bacile; MARK
BASSELEY YOUSSEF; ABANOB
BASSELEY NAKOULA; MATTHEW
NEKOLA; AHMED HAMDY; AMAL
NADA; DANIEL K. CARESMAN;
KRITBAG DIFRAT; SOBHI BUSHRA;
ROBERT BACILY; NICOLA BACILY;
THOMAS J. TANAS; ERWIN
SALAMEH; YOUSSEFF M. BASSELEY;
MALID AHLAWI,
Defendants.
2 GARCIA V. GOOGLE
Filed May 18, 2015
Before: Sidney R. Thomas, Chief Judge
Order by Chief Judge Thomas;
Dissent by Judge Reinhardt
GARCIA V. GOOGLE 3
SUMMARY*
Copyright / Preliminary Injunction
Chief Judge Thomas issued an amended order denying
rehearing en banc of the three-judge panel’s order directing
Google and YouTube to remove immediately all or part of the
film Innocence of Muslims from their platforms and to
prevent further uploads.
Dissenting from the initial denial of emergency rehearing
en banc of the three-judge panel’s order, Judge Reinhardt
wrote that this was a case in which the court not only
tolerated the infringement of fundamental First Amendment
rights but also was the architect of that infringement. He
wrote that although he agreed with the en banc court’s
majority opinion, immediate en banc consideration would
have been the only way of preventing the irreparable damage
to free speech rights caused by the three-judge panel’s order
in the period before the case could be taken en banc under the
court’s regular procedure.
ORDER
As noted in the order filed March 14, 2014, a judge of this
Court made a sua sponte request for a vote on whether to
rehear en banc the panel’s order of February 28, 2014
denying an emergency stay of the panel’s prior orders, as
amended, directing Google and YouTube to remove
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 GARCIA V. GOOGLE
immediately all or part of a film entitled “Innocence of
Muslims” from their platforms worldwide and to prevent
further uploads.
Pursuant to General Order 5.5(b), a vote of the non-
recused active judges was conducted as to whether to rehear
the panel order en banc. A majority of the non-recused active
judges did not vote in favor of rehearing en banc. Therefore,
an order was issued on March 14, 2014, pursuant to General
Order 5.5(c), returning control of the case to the panel.
Separately from the en banc call as to the panel’s stay
order, a judge of this Court made a request for a vote on
whether to rehear en banc the panel’s amended opinion. A
majority of the non-recused active judges voted in favor of
rehearing the case en banc, and an order was issued on
November 12, 2014 ordering that the case be reheard en banc.
Oral argument was held before the en banc panel on
December 15, 2014. The en banc panel has issued its
decision, which is filed concomitantly with this order.
This amended order denying rehearing en banc as to the
panel order of February 28, 2014 denying an emergency stay
of the panel’s prior orders is filed for the purpose of allowing
publication of a dissent from the denial of rehearing en banc
as to the panel order.
Therefore, the order of March 14, 2014 denying rehearing
en banc as to the panel order of February 28, 2014 is
reinstated and filed for publication. This amended order does
not affect the subsequent en banc proceedings in this case.
GARCIA V. GOOGLE 5
REINHARDT, dissenting from initial denial of emergency
rehearing en banc (although agreeing with opinion of the en
banc court):
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.
6 GARCIA V. GOOGLE
I.
Mark Basseley Youssef (a.k.a. Nakoula Basseley Nakoula
or Sam Bacile) wrote and directed Innocence of Muslims, a
13-minute-and-51-second film in which the plaintiff Cindy
Lee Garcia appears for five seconds. Although Garcia
believed she was acting in an uncontroversial movie called
Desert Warrior, Youssef dubbed over her lines and ultimately
created Innocence of Muslims, a film in which Mohammed is
portrayed as an evil figure—a murderer and child molester.
After an Egyptian cleric issued a fatwa against everyone
involved in creating the film, Garcia unsuccessfully sought a
preliminary injunction requiring Google to remove the film
from all of its platforms. By a 2–1 vote, a panel of this court
reversed the district court’s denial of an injunction and
ordered Google to remove all copies of Innocence of Muslims
from YouTube.com and any other platforms within its
control, and to take all reasonable steps to prevent further
uploads of Innocence of Muslims to those platforms.1
When the panel denied Google’s motion for a stay of the
panel’s order,2 a judge of this court immediately made an
1
In an unprecedented action, the panel also ordered Google not to
disclose the existence of the order or its contents until the panel filed its
opinion a week later, a provision that exacerbated the First Amendment
violation as well as exceeded the panel’s authority.
2
When it declined to stay its order for the second time, on February 28,
2014, the panel simultaneously modified the gag order to allow Google to
show a censored version of Innocence of Muslims with the plaintiff’s
appearances edited out of the film. This dissent applies equally to the
initial order and the order as modified. As the majority points out, the
modification had little practical effect: “the end result was the same: the
entire film remained removed from YouTube.” Majority Op. at 29.
GARCIA V. GOOGLE 7
emergency sua sponte en banc call. The basis of the call was
that the panel’s order constituted a prior restraint on speech
in violation of the First Amendment, and that free speech
rights should not be denied pending the lengthy process of
invoking en banc proceedings regarding the merits of the
panel opinion in the normal course. See General Orders
5.4–5.6. Although I agree with the en banc opinion affirming
the district court’s denial of an injunction, that action comes
too late to avoid the irreparable injury to First Amendment
rights. I respectfully dissent from our refusal to immediately
rehear en banc on an emergency basis the denial of a stay of
the panel’s order.3 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.
II.
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
3
This dissent from the initial denial of rehearing en banc is being filed
concurrently with the en banc opinion, consistent with the rule that all
claims of error in the proceedings are ordinarily addressed “in a single
appeal following final judgment on the merits.” Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 374 (1981).
8 GARCIA V. GOOGLE
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. See Claire Cain Miller, As Violence Spreads in Arab
World, Google Blocks Access to Inflammatory Video, N.Y.
Times (Sept. 13, 2012); Police Probe Threats, Fatwa against
‘Innocence of Muslims’ Actors, L.A. Times (Sept. 21, 2012).
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.”4
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.”
Connick v. Myers, 461 U.S. 138, 145 (1983) (internal
quotation marks omitted).
4
President Barack Obama, Remarks by the President to the UN General
Assembly (Sept. 25, 2012), available at http://www.whitehouse.gov/the-
press-office/2012/09/25/remarks-president-un-general-assembly.
GARCIA V. GOOGLE 9
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.” Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 339 (2010). “[T]he
Constitution protects the right to receive information and
ideas,” Stanley v. Georgia, 394 U.S. 557, 564 (1969), and that
protection “is a necessary predicate to the recipient’s
meaningful exercise of his own rights of speech, press, and
political freedom.” Bd. of Educ., Island Trees Union Free
Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982).
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,5 but “[i]t is firmly settled that under our
5
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
10 GARCIA V. GOOGLE
Constitution the public expression of ideas may not be
prohibited merely because the ideas are themselves offensive
to some of their hearers.” Street v. New York, 394 U.S. 576,
592 (1969). 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. See
Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123,
134 (1992).6 That is, protected speech cannot “be punished or
banned, simply because it might offend a hostile mob,” id. at
134–35, and “constitutional rights may not be denied simply
because of hostility to their assertion or exercise.” Cox v.
State of La., 379 U.S. 536, 551 (1965) (internal quotation
marks omitted). If allegations of grave and irreparable danger
to national security were insufficient to allow suppression of
the Pentagon Papers, New York Times Co. v. United States,
403 U.S. 713, 714 (1971) (per curiam), 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.
“[A] function of free speech under our system of
government is to invite dispute.” Terminiello v. City of
Chicago, 337 U.S. 1, 4 (1949). 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
against copyright infringement because “an injunction could cause public
injury by denying the public the opportunity to view a classic film . . . .”).
6
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. See Texas v. Johnson, 491 U.S. 397, 409–10 (1989);
see also Cohen v. California, 403 U.S. 15, 20 (1971).
GARCIA V. GOOGLE 11
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.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
508–09 (1969). 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. See also supra note 2.
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
12 GARCIA V. GOOGLE
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.
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
GARCIA V. GOOGLE 13
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.
III.
“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.” Terminiello, 337 U.S. at 4. 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.
For the foregoing reasons, I respectfully dissent from our
decision not to immediately rehear this case en banc on an
emergency basis.