Cindy Garcia v. Google, Inc.

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.