On December 15, the Ninth Circuit reheard oral argument en banc in a case that has odd facts and has made terrible law. In Garcia v. Google, a panel of judges on the Ninth Circuit issued a broad mandatory injunction compelling Google to remove and take measures to prevent the publication of a controversial video — all based on a novel copyright theory.
The injunction was issued in February last year. In March, the U.S. Copyright Office rejected the plaintiff’s attempt to register her asserted copyright. Yet despite the plaintiff’s exceedingly attenuated copyright interest, the injunction continues to be in force a year later, restraining Google from publishing the video.
Oral argument focused on the relatively dry area of the standard for a mandatory injunction. But as Google argued, that standard has real-world implications for the First Amendment. Quoting Overstreet v. United Brotherhood of Carpenters, Google argued that if “there is at least some risk that constitutionally protected speech will be enjoined, only a particularly strong showing of likely success, and of harm to the defendant as well, could suffice” to support an injunction. The Reporters Committee has joined amicus briefs at the rehearing and en banc stages supporting Google.
The Garcia case stems from the making of a notorious film in August 2011. Cindy Lee Garcia, an aspiring actress, answered a casting call for a film called Desert Warrior. She believed it to be an action film set in the Middle East. When the film was released, however, it appeared on YouTube and elsewhere under the name The Innocence of Muslims. Garcia’s formerly unremarkable lines were dubbed over with inflammatory dialogue about the Prophet Muhammad, and the film touched off protests and riots the world over.
Seeking to have the film taken offline, Garcia filed eight takedown notices under the Digital Millennium Copyright Act. When Google refused to comply, Garcia sued for injunctive relief, claiming that her performance in the film is copyrightable independent of the film itself. The district court declined to issue the injunction Garcia sought. But a panel majority in the Ninth Circuit reversed the district court and issued a mandatory injunction, ordering Google to remove the video and take steps to prevent its future publication. The Ninth Circuit reached this result despite finding Garcia’s copyright interest “debatable.” And, indeed, the Ninth Circuit cited no precedent in support of the notion that an actor retains an independent copyright interest in his or her performance in a film.
This case is troubling for a number of reasons beyond the implausibility of Garcia’s actual copyright claim. The court utterly dismissed concerns that the injunction infringed on Google’s First Amendment rights. If Garcia had sought an injunction as a remedy for tort, the court would have been forced to consider Google’s First Amendment interests, because an injunction in a tort case is a classic prior restraint. But because the court determined that Garcia has a possible copyright interest, it evaded that First Amendment inquiry with the conclusory and unsatisfying statement that the “First Amendment doesn’t protect copyright infringement.”
The First Amendment doesn’t protect defamation either, but courts don’t issue injunctions in libel cases because of the heavy presumption of the invalidity of prior restraints. That we are even having this conversation nine months into the injunction is astonishing. In a comparable 1996 case, a federal district court issued a temporary restraining order barring Business Week from publishing sealed court documents it had obtained in connection with a commercial lawsuit brought by Procter & Gamble. After a few weeks, the court unsealed the documents, allowing Business Week to publish its article, but left an injunction against the magazine in place. The Sixth Circuit heard argument two months later and issued its decision three months after that, reversing the district court and holding that the injunction violated the First Amendment. In the seminal Pentagon Papers case, only fifteen days elapsed between the initial temporary restraining order that barred The New York Times from publishing its story and the Supreme Court decision striking down that order as an impermissible prior restraint. Contrast that to the Garcia case, where the Ninth Circuit waited seven months before granting rehearing en banc and has now delayed over nine months since the panel’s order was issued. The urgency normally associated with restraints on speech has been completely absent from this proceeding.
The case has direct ramifications for media organizations that reported on the film and the ensuing controversies surrounding it. Many articles about the riots after the release of the film linked to or embedded versions of the film. While the injunction is in place, Garcia could presumably seek to enjoin any news media organization’s future publication of the film. This hampers discussion not only of the aftermath of the film itself, but also of Garcia’s litigation.
While the cascading effects of the Garcia injunction on traditional media are an additional harm, to be sure, Google itself feels the effect of the restraint most strongly. An injunction restraining Google from disseminating information is no less concerning than a prior restraint directed at the traditional media. Although Google is not a content creator, it plays a hugely important role in the marketplace of ideas. YouTube is an essential service for conveying news, art, and information. The Garcia injunction prevents Google from fulfilling its commercial goals as well as exercising its First Amendment rights. This case should be treated as urgently as any other prior restraint would.
More broadly, the incoherence of the prior restraint doctrine between tort and copyright is nonsensical from a First Amendment perspective. In essence, the panel held that a mandatory injunction would be an illegal prior restraint if sought as a remedy in a tort case, but if the underlying claim sounds in copyright, even when the copyright claim itself is doubtful, the injunction is not only permissible but also does not even require First Amendment scrutiny. Yet, as the dissent pointed out, the doubtfulness of the plaintiff’s claim makes the damage she alleges all the more attenuated, while this unprecedented infringement on Google’s liberties is real and concrete. The Ninth Circuit failed to recognize that copyright is no more compelling a logic than tort to hamper constitutionally protected speech.
What’s more, the impermissible injunction that the panel majority issued in February 2014 continues to bar Google from exercising its First Amendment rights, even after rehearing in December. Because the Ninth Circuit did not vacate the panel opinion when it granted rehearing, Google has no choice but to assume the injunction remains in force. As the Supreme Court has recognized, this type of injunction does not just “chill” speech — it “freezes” it. Let’s hope that a thaw is on the horizon.