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 : 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 (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 "" or "" 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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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.