'Innocence' Restored

Fifteen months ago, I wrote about a terrible decision by a federal appeals court, which secretly ordered Google and YouTube to remove all copies of a controversial and newsworthy film from their online platforms.

This original panel of judges (wrongly) held that an actress who appeared for a few seconds in the controversial "film" "The Innocence of Muslims" had an enforceable right under copyright law to get the whole movie taken offline. The court then ordered the movie completely erased from the digital world — under a gag order, to boot. When we at the ACLU finally found out — after the censorship has been silently carried out in the night — we joined other civil liberties and library groups in petitioning the full 9th U.S. Circuit Court of Appeals to reconsider its decision in what's called an en banc review, arguing that the copyright claim in this case was an unacceptable Trojan Horse within the citadel of the First Amendment.

This week, the court saw the light: The long dark takedown of "Innocence" is finally over.

The initial fight was between an actress, Cindy Lee Garcia, and writer-director Mark Basseley Youssef (who also uses a few aliases – rarely a good sign in a business relationship). Youssef paid Garcia to say a few innocuous lines for a fictional film he never made. Instead, he dubbed some repellant content over her two lines and incorporated this five-second clip into a 13-minute trailer advertising "The Innocence of Muslims," Youssef's polemic against the Prophet Mohammed. The promised film was intended to provoke — and it did. There were riots. The film was blamed for the attack on Benghazi. Garcia received death threats. She sued.

We should never cede our First Amendement rights to those who would match words with weapons.

As I said before, I have a ton of sympathy for Garcia — who was, in the words of the court, clearly "bamboozled." Did she have claims for fraud, torts, breach of contract? Absolutely. Did she have a right to have a video at the center of a roiling public policy debate erased from the historical record? Absolutely not.

Fortunately, nearly everyone on the 9th Circuit saw the error of granting the initial copyright claim to the detriment of the public's right to watch this (badly produced and racist) film. Judge McKeown nicely summed up the first opinion's error by noting that it "gave short shrift to the First Amendment values at stake." Damn right.

But one judge had even sharper words for his colleagues: Judge Reinhardt, known as a cantankerous liberal lion on the court, was the lone voice specifically criticizing the court (PDF) for taking 15 whole months to reverse the initial ill-considered copyright takedown. He wisely wrote:

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.

And that point is worth a special note. In recent weeks, we've heard many calls for censorship against Pamela Geller and her organization American Freedom Defense Initiative, which hosted a "draw Mohammed" cartoon contest in Texas at which officers were shot at and the two would-be attackers were killed. Those calling her actions "pyromania" or "hate speech" imply, dangerously, that the resulting violence justifies government censorship of her provocative words. And the original opinion in the Garcia case came perilously close to the same conclusion: that the death threats against Ms. Garcia justified the censorship of the public record.

Fortunately, as the court has now confirmed, our Constitution prevents those ideas from gaining traction. We don't give violent hecklers a veto over nonviolent speech. Period.

As Judge Reinhardt wrote with more than a soupçon of snark, "Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interest." Our First Amendment sets us apart because it gives us the right and the privilege to see, hear, and react to newsworthy content. Including — and especially — terrible ideas.

And we should never cede that power to those who would match words with weapons.

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HawkAtreides

I disagreed with you then and I disagree with you now, Ms. Rowland. "Innocence" is both the instrument and product of a criminal act against the actress, and she should have some say in whether the segment which uses her likeness can be distributed. In championing the cause of "free speech", you have succumbed to a line of reasoning that is reprehensible - namely, that it is allowable to distribute materials that are causing material harm to another person as long as doing so can be justified by some kind of obtuse critical theory. By casting this as some kind of Patriot Act-era "don't let the terrorists win" argument, you're giving only the barest of lip service to the fact that a woman is now going to be subjected to further harassment and death threats because of a film that uses her likeness against her will, the cinematic equivalent of forcing her by law to march in a KKK rally with no hood. Sympathy means nothing if we do not protect the people who are materially harmed by this sort of defamation. It's disingenuous to compare this to the "Draw Mohammad" events, in which the people engaging in that speech did so freely and of their own volition, putting themselves at whatever risk by their own choices and actions, not by those of others. I earnestly hope that no harm comes to Ms. Garcia due to this film, but if such happens to her, her blood is in part on the hands of the people who have claimed that religion-slandering "free speech" is more important than whether or not the "speaker" chose to engage in the message.

Anonymous

Bravo!

Bob Collins

In no way was this a "criminal" act against the actress. It is not the responsibility of the government to protect us from the ramifications of ill-considered speech. She seems to have a complaint with the maker of the movie: that would be in the realm of contract law.

Anonymous

When I saw this post, I was applauding. But when I read the details, I was appalled. Slander religion all you like, fine. But this is not about freedom of expression. The filmmaker is a fraudster who filmed this actress under false pretenses and then used her image in a way to which she had not agreed and would not have agreed, and which caused her serious suffering. The court should order her image removed from the film and the filmmaker should, at the very least, pay her whopping damages. And ACLU, of which I am proud to be a member, should not represent this kind of flimflam artist.

Anonymous

Yes! Bravo!!

Mohawk742

Some people get caught up in the beauty of a philosophical thought and forget the impact on real people. The author of this article has done exactly that. Ms. Garcia is at risk for (with NO exaggeration) her life because of this film and her unwitting role in it.

By demanding that it be again made available for all and sundry, the author (and the court that was persuaded to agree) has guaranteed a re-ignition of the hate and threats that filled her life before her temporary victory fifteen months ago, and which have now doubtlessly abated. Were I her father, husband or significant other in any capacity, I believe it's likely I would contemplate violence against the people who put her once again in an active venue of hate and threats.

Anonymous

Yes and more yes.

Anonymous

I support both of the standpoints made by the author / judge and laid out by the commentator here.
A viable solution to the matter could have been by ordering the alteration of the video by adding a visible comment stating, that the speech given by the actress was not commencing her own believes, instead have been dubbed over by the maker of that flic.

Anonymous 2

I agree with the dissenters here. If this actress' life has been threatened by an operative danger, then I think removing her image from the film takes precedence over "the public's right to know", or experience, or contemplate, or discuss, or pass an opinion or just engage in watching political satire. The woman is facing a credible source of danger, a source that has indicated little self control and impaired judgment when it comes to religion. She is being exposed by a person who is violating civil law in using her image for personal gain in money and fame. It is the controversy, and the fact that the woman's life has been threatened that will make the thrill seeking idiots want to view his film, which will only permit more unstable persons to view the film, which increases her risk of harm. It would be a simple matter for the court to order the profit maker to remove the woman's likeness from the film by editing it out. Then, if the film has merit for discussion, he may take the credit and the money from those to wish to view it, without perpetuating the danger to the woman. Why in the hell didn't the court do that? Why does it always have to be "...unto he who hath shall it be given. Unto he who has not, even that which he hath shall be taken away...." Luke...I think 19... If the woman is harmed, I would hope the members of that Court would be held accountable for serving the monied interests at the expense of a human life.

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