Nothing to See Here! Censoring 'The Innocence of Muslims'

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.

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Cris Armenta. A...

As a former member of both the Foundation Board and the Union Board of the ACLU of Southern California and the lead attorney for Plaintiff Cindy Lee Garcia, I cannot help but share my disappointment in the ACLU's incorrect assumption that Garcia v. Google is a First Amendment case or amounts to censorship. In your example, her performance would be akin to forcing YOU to march down the street wearing KKK attire and holding racist signs (when you were thought you just were blindfolded at a children's birthday party playing pin the tail on the donkey) despite the march being vehemently against your beliefs. Ms. Garcia has a right to control her performance and how it is used, as does EVERY OTHER ACTOR THAT WAS DUPED into being used as a puppet for a message they did not condone. Just as fraudster Nakoula has a First Amendment right to make a film that insults anyone he chooses, Ms. Garcia and the other actors have a right to be free from having him put words in their mouth that are disgusting to them. If there is a First Amendment right that is implicated here, it is those of the unwitting actors, all of whom have come out and indicated they were defrauded and lied to. The taking down of infringing material in no way stifles anyone's free speech. Mr. Nakoula is free to - as he has threatened to - release more content with his message. He just can't make my client a part of it. Google and YouTube enjoy broad protections under the DMCA act. But, when faced with a claim that they are hosting infringing material, they must remove it or face liability. Their attempt to hide behind the First Amendment to generate revenue to their sites and to appear to be the poster-children for free speech is transparent. Their attempt to recast the case as a First Amendment one is offensive to the First Amendment and to those who truly believe in it, and not as a source to simply generate revenue.

Anonymous

The "innocence" of SOME Muslims.
The ones who killed my daughter's dad and all those other people WEREN'T innocent.
Osama bin Laden told everyone who would write it down (and there was never a shortage of moron journalists offering to accommodate him) that he was "Islamic" and "deeply religious."
That means he was claiming to be Muslim.
But I think he was garden-snake evil.

I also believe "Christians" who act like that are evil. Pat Robertson's leading the entire pack.
Someone got angry at me b/c I said Pat Robertson is not a Christian, but I still think he's not. He doesn't ACT "Christ-like." I can't picture Jesus acting like Pat Robertson.
Basically I just dislike ANYbody who uses religion as a reason to kill or otherwise mistreat people.

HawkAtreides

I can't say that I agree here. Her participation was obtained through fraudulent means, and the final product causes direct and demonstrable harm to her. Regardless of the content, regardless of its inflammatory nature both in inciting hatred of Muslims and in the response from Muslims, this film has a demonstrable causal link to the death threats being received by the actress, death threats that are arising because of the filmmaker's fraudulent acquisition of her likeness. The film is, itself, a product and an instrument of criminal action.

Anonymous

I'm just glad it's been taken down.

Anonymous

I'm glad it's been removed!

Anonymous

Even if the film involved fraud, etc., the gag order was inexcusable and reeks of totalitarianism and (not in contradiction) of pusillanimous pseudo-liberal "tolerance" police. More appropriate for the People's "Republic" than for the United States of America. Shameful.

HawkAtreides

To add to my prior statement, I would like to join in pointing out that the author's claim that this film and a KKK march are equivalent is disingenuous. As Cris Armenta already pointed out, this is not about someone reacting badly to someone's expression. This is about a film causally linked to death threats received by an actress who had her likeness used for expression she did not engage in herself. A heckler's veto would apply if she had actually spoken the line in question, but as it stands, she neither spoke the line nor knew that her likeness would be used to propagate that line. To support the propagation of this film as a First Amendment liberty is repugnant to both the First Amendment itself and to the very concept of liberty. One's rights are limited when they directly cause harm to another, and this is such a case. I feel very uncomfortable with the idea that an ACLU blog author would treat this as if it were simply a matter of contentious speech, and literally dismiss the harm to the actress as "the past actions of nutcases", somehow simultaneously claiming that the prior existence of such action is not indicative of future action in the same vein.

Ms. Rowland, if I were to ask you to author a post on one of my blogs, and then rewrite that post after the fact, using your name and image, to convey a message that then led to death threats against you, how would YOU respond? I urge you to consider this fact before throwing restraint to the winds in the future and treating the First Amendment with all the care of a high school student claiming that getting detention for swearing is a violation of their "free speech". I have enjoyed your other articles regarding First Amendment violation, but this one is irresponsible and extends the idea of protected expression to what is tantamount to slander/defamation.

Anonymous #6: The gag order was to attempt to prevent a preemptive proliferation of a work that could be considered the product or instrument of a criminal act. Such a gag order could also be used to help prevent the preemptive spread of, for example, a pornographic film involving an underage actor/actress before a ruling could be reached.

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