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By Tony Dutra
June 1 — Copyright stakeholders generally applauded the en banc Ninth Circuit's decision to reverse a panel ruling that actress Cindy Lee Garcia held a copyright interest in her performance in the controversial Innocence of Muslims, separate from the work as a whole.
But, according to one judge on the court, its failure to hold an emergency rehearing, leaving the panel's order directing Google and YouTube to remove the film from their platforms for 15 months, resulted in “irreparable injury to First Amendment rights” (Garcia v. Google, Inc., 2015 BL 153004, 9th Cir., No. 12-57302, amended order 5/18/15).
The 2-1 panel, after a much criticized Feb. 26, 2014, opinion by Judge Alex Kozinsky, issued the gag order. The court, voting en banc, denied a rehearing as to that order on March 14, 2014.
The full court reversed the panel's underlying opinion on May 18. It simultaneously published Judge Stephen R. Reinhardt's scathing criticism of the earlier denial.
“The unconscionable result is that our court allowed an infringement of First Amendment rights to remain in effect for fifteen months before we finally issued our opinion dissolving the unconstitutional injunction issued by a divided three-judge panel,” Reinhardt said.
Although the inability to view this particular film may have been no great loss, the suppression of speech was, as a matter of principle, intolerable under the First Amendment: a court ordered a political video removed from the public sphere because of threats of violence, thereby changing the content and context of ongoing global discourse. The constitutional violation is not cured by restoring access to the video well over a year later, long after the time when it was most relevant to the debate and of greatest interest to the public.
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