February Was a Bad Month for Free Speech

February 2014 was a bad month for free speech. Two federal court decisions–addressing a controversial YouTube film and the rights of students to wear American flag clothing, respectively–and a pop singer’s act of self-censorship present a harrowing illustration of the current state of First Amendment free expression rights, sending a dangerous message: if you don’t like the content of someone’s speech, intimidate the speaker.

In the case of Garcia v. Google, Inc., the 9th U.S. Circuit Court of Appeals ordered Google to remove the 14-minute film Innocence of Muslims from YouTube. Deemed “anti-Islamic” for its unflattering depiction of Islam’s prophet Mohammed, controversy swelled after the Obama administration wrongfully blamed the film for fueling the 2012 Cairo and Benghazi attacks. It was later revealed that the allegations were unsubstantiated. Indeed, Cairo protesters interviewed by CNN stated that the purpose of the protest was to have Sheik Omar Abdel-Rahman (the “Blind Sheik”) released from a U.S. prison.

Plaintiff Cindy Lee Garcia, an actress who appeared in the film, sought removal of Innocence of Muslims after she began receiving death threats, potentially sparked by an Egyptian cleric’s issuance of a fatwa that called for the killing of everyone involved with the film. She first sued YouTube, the film’s producers, and others in California state court alleging fraud, slander, and other torts. Asserting that she would suffer irreparable harm if the film remained online, Garcia filed for a temporary restraining order demanding Google pull the film prior to the outcome of the litigation. The court denied her request, having found that Garcia failed to show a likelihood of succeeding with her claims. The case was subsequently dismissed.

After filing several takedown notices to YouTube, none of which were acted upon, Garcia sued in federal court. This time, she alleged that the posting of the video “infringed her copyright in her performance,” and she again filed for a temporary restraining order. The court denied the request, explaining that a preliminary injunction could only be granted if the law and facts “clearly favored” Garcia, which they did not. Undeterred, Garcia appealed.

In an unprecedented move, federal appeals court Judge Alex Kozinski ruled in Garcia’s favor and ordered Google to pull the film. Specifically, he held that the lower court “abused its discretion” in denying Garcia’s requested injunctive relief, having erred in concluding that the law and facts did not “clearly favor” Garcia.

Nearly every aspect of the appellate decision is problematic and unsupported by relevant case law. If anything, the law and facts dis–favor Garcia, and the holding–if it is not overturned–will have damaging implications for freedom of speech.

First and foremost, as the dissent correctly asserted, the 9th Circuit has “never held that an actress’s performance could be copyrightable.” Even the majority acknowledged the lack of case law supporting Garcia’s argument, conceding that “the matter is fairly debatable.” Rather, courts have found that films in their entirety are copyrightable works.

Second, though Judge Kozinski agreed with Google that Garcia had granted the film’s producer an implied license to use her performance, he nonetheless determined that the use was “unauthorized” and “infringing,” essentially because the producer had changed the nature of the film. Because “the film isn’t intended to entertain at all” (the court seems to have concluded that a movie cannot be entertaining if it is “anti-Islam” and therefore offensive to some Muslims) and “differs so radically from anything Garcia could have imagined when she cast,” Kozinski argued, the use of her performance fell outside the bounds of any implied license. 

This portion of the holding is particularly inconsistent. Kozinski first acknowledged that such implied licenses must be construed broadly lest an actor be allowed “to force the film’s author to re-edit the film–in violation of the author’s exclusive right to prepare derivative work[,]” yet this is precisely what the holding enables Garcia to do.

Third, the court examined and accepted Garcia’s argument that, unless the film was immediately removed from YouTube, she would suffer irreparable harm from the continuing death threats. Indeed, one would be hard-pressed to argue that threats of death and physical injury do not constitute “irreparable harm.” However, the rest of the court’s reasoning on this point is, again, deeply flawed. As Kozinski correctly noted, because Garcia’s suit is based on a copyright claim, the relevant harm would have to be “causally related to the infringement of her copyright.” The dissent further pointed out that, with an infringement claim, the relevant harm is the harm to Garcia’s legal or commercial interest. 

However, contrary to the majority’s (unsubstantiated) finding, Garcia’s harm was not caused by infringement. She has claimed no harm to her commercial interest from the use of her performance. Here, the harm–issuance of a fatwa and death threats–stems from the fact that certain individuals who found the film offensive to their religious beliefs reacted with threats of violence. Nor is there any indication that removal from YouTube will appease those offended and bring an end to the threats. The great majority of the outrage concerning the film and threats of violence are in response to the film’s alleged negative depiction of Islam’s prophet Mohammed, considered a sin undersharia (Islamic) law. From the perspective of the outraged, pulling the film will not undo the “insult,” nor Garcia’s involvement with it. 

Still, as The Lawfare Project has previously noted, when it comes to speech deemed offensive to Islam, many have mistakenly relied on the false causation argument that violence is brought about by the expression itself when, in fact, the real cause is an ideology that “justifies violence based on militant religious doctrine.”

Kozinski wrapped up the decision by summarily rejecting Google’s arguments that there is an overwhelming public interest in keeping the film on YouTube (the court did not explain why, despite the ongoing Benghazi scandal) and that removal of the film is an unconstitutional prior restraint of speech. Regarding prior restraint, the majority said only that “the First Amendment doesn’t protect copyright infringement.” But because no court has ruled on the merits of Garcia’s copyright claim, there has been no official determination that she holds any copyright interest in her performance, nor, consequently, that her rights were infringed. Kozinski seemingly took these considerations for granted and erred on the side of suppressing expression, exactly the type of government action that the doctrine of prior restraint is meant to prevent.

How, then, could the majority conclude that the law and facts “clearly favored” Garcia, justifying the order of removal before reaching a decision on the merits? According to the dissent, “the majority makes new law in this circuit in order to reach the result it seeks.” Here, the goal seems to have been the suppression of the speech at issue–perhaps “offensive” to some Muslims but still entitled to full First Amendment protection–and, indeed, the majority created a means to that end. The majority’s “new law” starkly conflicts with the seminal case of Terminiello v. City of Chicago, in which the U.S. Supreme Court famously stated:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

Several other aspects of the Garcia holding undercut the First Amendment and its jurisprudence. First, in reference to a scene in Innocence of Muslims where Garcia appeared to ask if Islam’s prophet Mohammed was a child molester, Kozinski stated: “These, of course, are fighting words to many faithful Muslims…” Under the fighting words doctrine in U.S. constitutional law, established by the Supreme Court in the 1942 case Chaplinsky v. New Hampshire, “fighting words” are defined as “those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” and, as such, can be punished and prevented without offending the First Amendment. However, subsequent Supreme Court decisions have limited the doctrine’s applicability. 

In Street v. New York (1969), the Court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere “offensiveness” does not constitute fighting words. In Cohen v. California (1971), the Court held that the wearing of a jacket displaying the words “f— the draft” did not qualify as “fighting words” because there had been no “personally abusive epithets.” Returning to Garcia, while the referenced language might be perceived as “fighting words to many faithful Muslims,” it falls short of “fighting words” as defined by the Supreme Court. Kozinski’s dicta has the tendency to redefine “fighting words” in a manner incompatible with First Amendment jurisprudence, which would permit suppression of speech merely because some listeners react to that speech with violence. 

And, ironically, Kozinski’s reasoning itself may be offensive to many Muslims: in effect, he has said that the average Muslim is likely to respond to criticism of his or her religion with violence.

Additionally, it was revealed that Kozinski ordered Google to pull the film a week before the court reached its decision on the preliminary injunction and that he issued a gag order prohibiting anyone from discussing the early removal until the decision was published. Though judicial gag orders are indeed a form of prior restraint, the Supreme Court has held that these restrictions may be sustained in exceptional cases, i.e., when necessary to protect the right to a fair trial and avoid interference with the judicial process. There is no indication, however, that any such exceptional circumstances existed in Garcia‘s case. The gag order is certainly questionable and it looks like its issuance was intended to preclude any public rush to download or view the film prior to its removal.

Just one day after Garcia came down, the First Amendment took another blow. In Dariano v. Morgan Hill Unified School District, another 9th Circuit panel upheld a high school’s decision to prohibit students from wearing American flag clothing on Cinco de Mayo. School administrators imposed the restriction after students who displayed the flag were met with threats of racial violence. Other students who wore the Mexican flag, however, were not prohibited from doing so.

The court held that the administrators did not violate the students’ First Amendment rights “in asking students to turn their shirts inside out, remove them, or leave school for the day with an excused absence in order to prevent substantial disruption or violence at school.” Under the 1969 U.S. Supreme Court decision Tinker v. Des Moines Independent Community School District, restrictions on student speech are permissible when school officials “reasonably… forecast substantial disruption of or material interference with school activities.” Absent evidence that a school’s restriction is necessary to avoid such disruption, prohibition of student expression is unconstitutional.

“This is a classic ‘heckler’s veto’–thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence,” wrote UCLA School of Law Professor Eugene Volokh. While the “Heckler’s veto” to freedom of speech is generally not allowed under the First Amendment, Dariano provides an unwarranted exception in its misguided application of Tinker. Again, the same mistaken causation argument looms: blame the speaker instead of those who threaten violence.

And then there’s Katy Perry. It was reported that a pendant bearing the Arabic word for “Allah” had been edited out of the pop singer’s new music video for her song “Dark Horse.” Prior to the removal, a Change.org petition, which received 65,000 signatures, claimed the image was offensive to Muslims. Shazad Iqbal, who authored the petition, wrote: “Such goes to show, that blasphemy is clearly conveyed in the video, since Katy Perry (who appears to be representing an opposition of God) engulfs the believer and the word God in flames.” Yet again, the First Amendment takes a backseat to political correctness and hypersensitivity.

If you want to silence someone, threaten violence and claim that the speech offended you. The U.S. judiciary might even support you. Or maybe the speaker will censor him or herself. Echoing the words of Lawfare Project Director Brooke Goldstein, when will we stop excusing violent criminal conduct, or threats thereof, as an expected and justifiable response to controversial speech?

Benjamin Ryberg is an attorney and Director of Research at The Lawfare Project.