It's likely you haven't escaped the roiling controversy generated by the film The Innocence of Muslims. This "film" has alternately been described as: a deliberate provocation of Muslims, a launching point for a conversation about free speech, a trigger for the tragic attack on our Benghazi consulate, and a comically bad example of post-production dubbing. Whatever your own thoughts on the film, it's undeniable that The Innocence of Muslims has given rise to passionate and divergent opinions on censorship, religion, and politics. It's been downloaded and viewed countless times. It's been named and featured on countless blogs and newscasts about religious freedom, free speech, and Benghazi.
To censor this film now would be as tough and meaningless as getting a feral cat back into a bag. But that's precisely where the Ninth Circuit federal appeals court tried to stuff it last week – and we're just now finding out about it.
An actress in the film, Cindy Lee Garcia, filed a lawsuit in federal court, arguing that she had been hoodwinked. Garcia claims that she agreed to act in one film, and her performance was overdubbed and popped into another: The Innocence of Muslims. She filed a copyright claim against the filmmakers, arguing that they used her performance without permission. And, she argued, the controversial nature of the film made her not just an unwitting political celebrity, but also the target of death threats. As the always-entertaining (even if here, incorrect) Chief Judge Alex Kozinski wrote in the opinion: "While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa."
Fair enough. I don't doubt that being the target of religious outrage has been a living hell for Garcia. I don't doubt that the filmmakers pulled a fast one on her in order to make a movie they knew would cause, to put it mildly, a hullabaloo. But Garcia didn't stop with suing the producers, or seeking damages for their bait-and-switch. She claimed that she had a copyright in her performance, and asked the court to take all copies of the entire film off of the internet. She also sued Google and YouTube, just for hosting the video. It is an astounding and unprecedented request for an actress to seek the censorship of an entire film because she is briefly featured in it.
Bizarrely, the Ninth Circuit panel voted 2-1 to rebag the cat. The order says that "Google, Inc. shall take down all copies of 'Innocence of Muslims' from YouTube.com and from any other platforms under Google's control, and take all reasonable steps to prevent further uploads of 'Innocence of Muslims' to those platforms."
This order was filed February 19th – but nobody knew about it until today. That's because the court also entered a gag order preventing Google from telling anyone about this opinion until yesterday. The court explained that the gag order was put in place "to prevent a rush to copy and proliferate the film before Google can comply with the order." Apparently the Ninth Circuit is well familiar with the Streisand Effect. As of today, if you google the film and pull up the first YouTube link, the sad face of the anthropomorphized YouTube screen frowns at you and states, "This content is not available on this country domain due to a legal complaint." Those are words that should make us all frown.
However painful this experience has been for Garcia, the solution cannot be to censor all access to a movie that's at the heart of global debate about policy and politics. Any court order issued in the middle of a lawsuit (called a "preliminary injunction") must be in the public interest. And the protections of the First Amendment are, unquestionably, of the highest public interest. They include the right to see, hear, access, and share information. Yet, those considerations are shamefully absent from the court's analysis, which credits only the possibility of future harm to Garcia, based on the past actions of nutcases who threatened her after the movie was released.
We have a term for censoring speech because others might react badly to it—it's called a heckler's veto. And it's prohibited under our Constitution. It's the reason we don't prohibit controversial speakers like the KKK from marching down public streets out of concern that bystanders will react violently. Under our Constitution, we don't allow the government to censor speech on the theory it might cause someone else to misbehave. Our Constitution—and common sense—tell us to target the threats and the violence, rather than the protected speech.
Only two of the three judges voted for the misguided takedown order—the third, Judge Smith, balanced the harms differently, and noted that taking down the film was a heavy-handed and unprecedented move by the court. Let's hope the case gets heard by the full Ninth Circuit court, and that they hear the clarion call of Judge Smith's wise words.