Originally published under the title, "Ninth Circuit Reverses Course in Garcia v. Google: YouTube Video 'Innocence of Muslims' Back in Business."
YouTube lost no time in restoring the video to its website.
On May 18, 2015, a federal appeals court reversed course from its earlier opinion suppressing Nakoula Basseley Nakoula's 14-minute YouTube video, "Innocence of Muslims."
The video, purportedly a trailer for a movie, was created by dubbing film shot under the name "Desert Warrior" into a diatribe against Muhammad. Eventually, an Arabic version was posted on YouTube. After the September 11, 2012, attack on the US consulate in Benghazi, the Obama Administration blamed the assault on Muslim protests about this selfsame video, and asked YouTube to remove it.
Persons involved in making "Innocence of Muslims" received death threats. One, Cindy Lee Garcia, filed a lawsuit against Google (which owns YouTube) as well as Nakoula, seeking to suppress the video under a breach of copyright claim. Garcia performed for "Desert Warrior," and a five-second clip of her performance was spliced into "Innocence of Muslims" with her dialogue dubbed over in favor of the critical-of-Muhammad theme.
The lower court refused Garcia's request for a preliminary injunction barring Google from showing the video. The Ninth Circuit reversed and ordered Google to take down the video from all of its platforms. What's more, the takedown order was at first ordered to be kept secret. Later, the court modified its decision, allowing Google to show the film, redacted to exclude Garcia's performance.
The ruling sparked a "massive pushback" both from civil rights groups, claiming it was a dangerous prior restraint on speech, and from Hollywood, worried about the prospect of individual actors having a separate copyright in their performances. Others, such as the Screen Actors' Guild, supported Garcia. Subsequently, the Ninth Circuit decided to rehear the matter before its entire panel. Numerous organizations filed amicus briefs supporting Google, including the ACLU (somewhat surprisingly, given its general reluctance to support free speech critical of Islam). The case was re-argued on December 15, 2014 (the full-panel oral argument is available on YouTube, naturally).
In last week's en banc decision, the court dissolved the injunction and affirmed the lower court's initial ruling against the injunction. The court held that the earlier opinion was wrong to conclude Garcia was likely to win on her copyright claim. Even if she won that claim, she would only be entitled to breach of copyright damages, which don't encompass the sort of emotional distress she has claimed. Last, but not least, the earlier decision "gave short shrift to the First Amendment values at stake" in that it "censored and suppressed a politically significant film." Granting a preliminary injunction in such circumstances would be an intolerable infringement on First Amendment rights.
Judge Watford filed a concurring opinion. Although he believed the risk of death to Garcia could qualify as irreparable injury for purposes of the requested injunction, he did not believe Garcia could show that granting the injunction would prevent the injury. That is, the movie trailer had already been made and watched; Garcia's role in it was known, as the fatwa against her demonstrated. So, she could not show that enjoining additional viewing of the film would prevent injury to her; there was no causal connection between the claimed injury and the need for an injunction. Watford also believed it was unnecessary to decide the copyright issue at this point, because Garcia's claim failed on the injury claim.
Judge Kozinski, who wrote the original Ninth Circuit opinion last year, dissented, on the grounds that Garcia had a copyright in her performance, which she had not waived.
The ACLU published a blog last week, commending the court for seeing the error of its ways and denouncing the idea of a heckler's veto.
Johanna Markind is associate counselor at the Middle East Forum