453 Days Later...

05/19/2015 08:54 am ET | Updated May 19, 2016

Welcome news this week from the U.S. Court of Appeals for the 9th Circuit. By a vote of 11 to 1, the court overturned its injunction against the controversial video called "Innocence of Muslims" that it had ordered off YouTube back in February 2014.

Here's the background. Actress Cindy Lee Garcia was cast in that video in a cameo role and paid $500 to deliver two lines: "Is George crazy? Our daughter is but a child?" The video's writer/director had a covert plan and instead dubbed over Garcia's lines and replaced them with: "Is your Mohammed a child molester?" Although her appearance lasted just five seconds, Garcia understandably wanted to be disassociated from the video altogether.

The problem is the legal vehicle her lawyers chose to do so, namely copyright law. Garcia's copyright theory was both novel and misguided: she claimed to own a copyright on her acting performance and therefore to have the right to stop the video's distribution. No such copyright exists, the court ruled today, so the video could not be enjoined.

As offensive as the video is (and it certainly is), and as sympathetic as the plaintiff is (and she certainly is), Garcia used the wrong law to address the wrong. She would have been better off pressing her claims of fraud or breach of contract against the writer/director instead of asserting a copyright interest in her fleeting performance.

Today's opinion thoroughly analyzed the weaknesses in Garcia's copyright claim and the very high bar that must be cleared before an injunction can issue, given the First Amendment. Yet the opinion is relatively circumspect in recounting the history of how the case reached this point at all -- a history about which the court itself cannot be proud.

An earlier panel of the 9th Circuit overturned a district court judge and issued that YouTube injunction in the first place, back on February 19, 2014. And not only did it issue the injunction, it initially issued it in secret accompanied by an unprecedented order barring Google from even mentioning its existence. Google admirably fought against that secret order, and lost.

In addition to the 9th Circuit's opinion today, Judge Stephen Reinhardt wrote separately to focus on the court's own complicity in the case (though he does not mention the secret order). As he begins that opinion: "This is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement." Judge Reinhardt then reaffirms the position he advocated from the beginning: that the prior restraint issued by the earlier panel of the court under the guise of copyright infringement should have been subject to emergency and expedited review by the full en banc court. As he writes: "By refusing to immediately rehear this case en banc, we condoned censorship of political speech of the highest First Amendment magnitude."

Having clerked and practiced in the federal courts for many years, I have immense respect for the court and for the judicial process. Yet I cannot help but think about those 453 days that the injunction remained in effect. Winter turned to spring, which turned to summer, which turned to fall, which turned back to winter, and now it's spring again. All the while the injunction remained in place, and YouTube was forced to proactively search for and remove what the court has found, by an overwhelming vote, to be Constitutionally protected speech.

It's now 15 months later, and the 9th Circuit has finally issued its decision -- a ruling that experts had been anticipating from day one. The court may have reversed its injunction, but at this late date it cannot undo the damage that was done to our Constitution. The First Amendment was left to atrophy while the clock ticked away.

Judge Reinhardt calls his court's lack of urgency "violence done to the First Amendment." As he notes, "the exercise of freedom that was lost pending en banc proceedings cannot be recovered." That loss is ours.

Tom Rubin is Lecturer in Law at Stanford Law School, former Chief Intellectual Property Strategy Counsel at Microsoft, on the Board of Directors at Creative Commons, and on the Board of Advisors of the Reporters Committee for Freedom of the Press.