9th Circuit, Alex Kozinski, Technology

'Innocence Of Muslims' Ruling Violates The First Amendment In Two Separate Ways

Judge Kozinski's decision on this one seems a bit curious.

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In our post yesterday about Judge Alex Kozinski’s horrifically bad ruling in favor of Cindy Garcia, an actress who briefly appeared in the infamous YouTube video “Innocence of Muslims,” we also mentioned the astounding gag order that Kozinski placed on Google/YouTube, saying that the company was simply not allowed to tell the world that the video had been ordered censored by a court for at least a week. However, the gag order is so crazy that it seemed worth a second post. It already appears to be a classic First Amendment violation to order Google to take down all copies of the video (and prevent new ones from being uploaded), but Kozinski seems to double the First Amendment problems with that gag order.

Yes, certain court rulings are kept under seal for some period of time, but here’s a case where a key video of public interest and discussion was not only being censored, but where the company being ordered to censor the video couldn’t even tell anyone what happened for nearly a week. The order to pull down the video came on February 19th, and it was only revealed on the 26th. It now comes out that Google’s lawyers went reasonably ballistic over the gag order. Google’s fullmotion seeking an emergency stay highlights just how insane both the takedown and the gag orders are.

A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic, and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested. Ms. Garcia asked only that the five seconds of footage in which she appeared be removed from Google’s websites. See Reply Br. 5 (“Ms. Garcia seeks only to enjoin the unauthorized posting of her own performance.”). The Order, by contrast, requires that the entire film be taken down, and that Google block anyone from uploading it in the future. The Order also appears to extend to copies of the Film that were not identified in any takedown demand by Ms. Garcia. See 17 U.S.C. 512(c), (j). There is no possible justification for such an order. The vast bulk of the Film has nothing to do with Ms. Garcia, and she asserts no copyright claim over it.

This is, in short, a stunning order, both as a matter of substance and procedure. And to make matters worse, it is difficult for the Defendants to even understand how to fully comply with the Order, given the variety of copies of the Film now available on the Internet and the variety of platforms operated by Google. The Order’s uncertain scope only adds to the urgency of a temporary stay. The Film is not defined with reference to any URL, upload date, or any other meaningful description. A search for “Innocence of Muslims” on YouTube returns over 58,000 results as of this filing, many of which could well contain commentary, news stories, and other works that merely contain some or all of the original video. Google and YouTube will, of course, try to comply with the Order forthwith, but strongly believe the Order should be stayed so that this Court can consider the issues.

The filing goes on to point out that the gag order is clearly illegal:

In addition, the Order unjustifiably gags the defendants from publicly discussing the Order itself, and denies the public access to judicial documents. Under this Court’s case law, when it comes to this Court’s records, “ ‘a strong presumption in favor of access’ is the starting point.” … In order to withhold documents from public view, the court “must ‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.’ ” The Court’s order did none of those things before directing it be kept from the public docket. For this reason, too, the Order harms Google and the public and should be vacated.

It also points out that it’s preposterous to order all such videos (again broadly described) be taken down within 24 hours, given that the film has been online for nearly two years, and keeping it up for a short while longer is hardly going to increase any level of harm (though interfering with First Amendment rights does create harm). It further notes that even Garcia’s own lawyers didn’t ask for a 24 hours turnaround time on blocking videos.

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The whole thing is quite incredible when you think about it. First, ordering the prior restraint of the video is a clear First Amendment violation. But to add a gag order to that doubles the problems. Here’s a judge who’s not only ordering a result that violates the First Amendment, but is then compounding the problems by violating the First Amendment in blocking anyone from talking about the First Amendment violation in the first place.

As we mentioned in the original post, we’re still perplexed at Kozinski’s reasoning on all of this (and I’ve yet to see a single lawyer I know have anything positive to say about the ruling or the gag order). As we’ve said in the past, generally speaking, Judge Kozinski is one of the more interestingjudges out there, and I tend to agree with his rulings more often than not. However, as we pointed out a few years ago, it seems like one serious blind spot for Judge Kozinski is his dislike of the internet and willingness to blame tech companies for actions of users on the internet. In covering a speech he gave in 2011 concerning Section 230 of the CDA (which provides liability protections for internet companies based on actions of their users), we noted:

It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn’t that great, and if he had the option of flipping a switch to turn it off, he’s not entirely convinced that he would leave it on. He said he’s just not sure it’s really done that much good, and that we might be better off without it.

[…]

Kozinski did point out that many people don’t realize what it’s like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had “obscene” content, leading to a rash ofmisleading press coverage, and an investigation (which eventually cleared him of any wrong doing).

While the issue here is slightly different, both in context and in statute, Kozinski has shown in the past that he’s skeptical of the internet, and appears to overreact to attacks based on things on the internet. That may suggest how he got to the point where such a twisted ruling made sense. However, even if we grant that, it’s still impossible to see how it could then possibly make sense to gag Google from explaining why it had taken down such a high profile video.

The full video is available on the next page…

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