A BAD WEEK FOR FREEDOM OF SPEECH

Freedom of speech leads a precarious existence in the best of times, and these are not the best of times.  In many parts of the world, dissent from the majority views, particularly majority religious views, is a capital offense.  Most Americans consider themselves fortunate to live in a bastion of liberty where vigorous and robust speech is allowed and encouraged, even if the speech disturbs others.

That is why it was disheartening to see in one 48-hour period last week, the Ninth Circuit Court of Appeals, whose jurisdiction extends throughout the western United States and Alaska and Hawaii, deliver two stinging repudiations of freedom of speech.

On Wednesday, February 26, 2014, the court ordered Google to remove the 14-minute trailer for an anti-Muslim polemic entitled “Innocence of Muslims.”

The order was in response to lawsuit filed by Cindy Lee Garcia, an actor who was paid $500 for three and half days of filming, and who appears in the trailer for five seconds.  Garcia claimed that Mark Basseley Youssef, the writer and producer, misled her as to the nature and purpose of the film.  She was told it was an Arabian adventure movie entitled “Desert Warrior.”  Instead, it turned out to contain strongly anti-Muslim themes.  Her brief speaking part was dubbed over so that she appeared to ask: “Is your Mohammed a child molester?”  After the film aired, an Egyptian cleric issued a fatwa, calling for the murder of the cast and crew.  A wave of violent demonstrations throughout the Muslim world ensued, leading to an estimated fifty deaths.  The Obama administration initially claimed that “Innocence of Muslims” instigated the fatal attack on the U.S. Consulate in Benghazi, a claim it later withdrew.

Garcia filed takedown notices, demanding that Google remove the trailer.  When Google refused, she sued, seeking a temporary restraining order and preliminary injunction.

Assuming Garcia’s allegations prove true (the case is only in its early stages), she will have grounds for relief against Youssef.  According to her allegations, Youssef  lied to her to obtain her performance.  Had her lawyers sued for fraud or defamation or publicity rights, she would be entitled to damages.  But her lawyers, apparently for tactical reasons, chose a different route.  They sued for copyright infringement.  They alleged that Garcia owned the copyright to her five seconds, and that Youssef exceeded the scope of any implied license he might have had to use that footage. After the district court denied her relief, she appealed to the Ninth Circuit.

In his appellate decision, Chief Judge Alex Kozinski ruled that Garcia is likely to prevail on her claim to own a copyright over her performance.  Then, in view of the threats against her, Judge Kozinski ruled that she was entitled to a preliminary injunction.  He ordered Google to take down, not just the five-second performance as Garcia had requested, but the entire 14-minute trailer.  He issued his order under seal in advance of the public release of his opinion, to prevent viewers from downloading and copying the work before Google could comply.  (Two days later, on February 28, Judge Kozinski modified his order to permit Google to repost the trailer in a version omitting Garcia’s performance.)

The crux of Judge Kozinski’s opinion was that Garcia owned the copyright to her performance, even though she had no role in the directing, filming, or producing of the movie, and that her ownership entitled her to obtain the removal of the work from Google’s website.  Copyright practitioners were stunned.  No case has ever held that an actor’s performance, by itself, entitled him to a copyright interest in the movie.  Law360, a popular legal online news outlet, headlined its story on the case: “9^th Circ.’s Google Ruling Leave Copyright Attys Speechless.”  Copyright law experts pointed out that the decision posed an enormous threat to the movie industry; under its rationale, any disgruntled cast or crew member might claim a copyright interest, and then demand that the movie, or at least part of it, be removed from circulation.

The opinion’s copyright law ramifications are so troubling, that few commentators  noticed how the decision imperils First Amendment rights.

In deciding whether to grant the equitable remedy of a  preliminary injunction, Judge Kozinski had to consider whether Garcia faced irreparable harm, and he also had to balance the equities between the parties.  He was moved by the fact that Garcia faced death threats. “To the extent the irreparable harm inquiry is at all a close question,” he wrote, “we think it best to err on the side of life.”  Deciding between what he saw as her life versus Google’s First Amendment interests, the Judge chose life.

Judge Kozinski’s human concern was understandable.  But he failed to acknowledge that there was no connection between Google’s conduct and the harm faced by Garcia.  Google was not threatening Garcia with death.  Islamic extremists were.  And their threats had nothing to do with her copyright interests.  The fanatics were threatening Garcia because she was associated with the film, not because she supposedly owned a copyright to a five-second sequence.  Everyone associated with the video, from the acting leads down to the grips, best boys, and even the caterers, faced the same danger, even though none are copyright owners.

Judge Kozinski is known as a staunch supporter of free speech. In one famous previous decision, he ruled that giving a police officer the finger is protected by the First Amendment.  So his order to take down a video which, whatever its artistic merit, is entitled to at least as much constitutional protection as a one-finger salute, astonished many observers. The ruling may be explained by the reasonable assumption that Judge Kozinski did not want her blood on his hands.  He may have figured: isn’t the life of a woman worth a little tinkering with copyright law?

The answer must be:  No.  Not when the price is the sacrifice of the First Amendment.

Any other answer would represent a concession to “the Heckler’s Veto.”  That term was coined by the constitutional law scholar Harry Kalven.  It first entered the Supreme Court’s lexicon in 1966 in Brown v. Louisiana, which involved a group of blacks arrested for breaching the peace after refusing to leave a segregated library.  The Court noted the possibility that their presence might provoke others to violence, but rejected that as a justification for their arrest:  “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.”

In other words, according to the Supreme Court, American courts must not suppress otherwise lawful speech just because it may lead others to commit violent acts.  To do so, would grant those others a veto power over speech which they dislike.

The day after Judge Kozinski subjected Google’s First Amendment rights to the heckler’s veto, another 9^th Circuit panel did a similar thing in Dariano v. Morgan Hill Unified School District.  The “speech” involved in that case was not some amateurish anti-Muslim diatribe.  Instead, it was literally as American as motherhood and apple pie.  It was the American flag.

In Morgan Hill, the court held that a high school principal could lawfully prohibit students from wearing American flag T-shirts to class.  The case arose from a 2010 incident on Cinco de Mayo at a high school with a history of violent confrontations between Hispanic and Caucasian students.  When a group of Caucasian students chose to wear American flag T-shirts to class on the holiday, the principal called them to his office and gave them the choice of either turning their T-shirts inside out or going home.  They chose to go home.  Later, they and their parents sued the school district for violation of their constitutional rights.

The Ninth Circuit upheld the principal’s decision barring the students from wearing American flag T-shirts.  The court justified its decision by citing the history of violent threats made by Hispanic students against Caucasian students in 2009 and in 2010.  In 2009, a group of Caucasian students hung a make-shift American flag from a tree and chanted “USA.”  A group of Hispanic students confronted them, shouting threats.  When Assistant Principal Rodgiguez told one student to stop using profane language, the student said, “But Rodriguez, they are racist. They are being racist. F*** them white boys. Let’s f*** them up.”  In 2010, the students sent home after refusing to change their American T-shirts received threatening telephone calls.  Another student overhead a group of classmates saying that some gang members would come down from San Jose to “take care of” the T-shirt wearing students. Because of these threats, the students stayed home from school the following day.

Unlike Judge Kozinski’s Garcia decision, which broke new ground, the court’s Morgan Hill decision had precedential support.  Prior cases have held that students in public schools do not enjoy the same First Amendment protections that citizens on the outside enjoy, and that schools have a special responsibility to provide a safe environment for their students.  That responsibility gives principals some leeway in restricting free speech by banning disruptive behavior that would be constitutionally protected off campus.

But even if Morgan Hill was correctly decided, the rationale for the decision, coming one day after the Ninth Circuit’s decision in the Garcia case, is disturbing.  Professor Eugene Volokh (a former law clerk for Judge Kozinski) noted:

“The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”

Professor Volokh’s diagnosis is equally applicable to the Garcia case.  Inventing new copyright law to justify the suppression of the video will not safeguard Cindy Lee Garcia.  If anything, the decision has probably magnified her danger.  Before the decision, interest in the “Innocence of Muslims” had waned.  Ironically, Judge Kozinski’s shocking opinion has rekindled interest in the movie, and has made the hitherto obscure bit-part player Garcia more famous – and thus more vulnerable — than she had ever been before.

What the decision will accomplish is to send a message to extremists of every faith and creed.  If you want to shut down a controversial movie, find a disgruntled cast or crew member, with possible legal claims against the producers, and intimidate her.  She will then have precedential support for suing to take the movie out of circulation.

The two Ninth Circuit panels who ruled against free speech last week did so for understandable reasons.  One was concerned about the safety of an actor; the other about the safety of students.  But free societies need not resort to censorship to ensure safety.  In the face of threats, there are better measures to employ.  A free society can provide physical protection to the victims of threats.  It can hunt down and prosecute those making the threats. If need be – and in the case of fundamentalist fanatics, it may very well need be – it can employ force to render the threatening parties harmless.    Osama bin Laden and most of his lieutenants are no longer in the business of issuing death threats.

When a free society resorts to censorship, it does not placate its enemies.  It merely emboldens those enemies to demand more censorship.

There is a tendency among some overwrought commentators to revisit the 1930s every time they see a threat to civil liberties.  Granted, not every danger is a new Hitler, and not every surrender is Munich.  Nevertheless, I cannot resist ending this post by paraphrasing Winston Churchill’s remarks in Parliament* when Neville Chamberlain returned from the Continent promising “peace in our time.”

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*After Chamberlain returned from Munich, Churchill rose in Parliament and said: “Britain and France had to choose between war and dishonour.  They chose dishonour.   They will have war.”