Monday, May 18, 2015

Garcia v. Google, Inc. (9th Cir. - May 18, 2015)

I won't say much about the merits of this case, since it's high-profile and will get substantial attention without me.  Plus, everyone agrees that its factual context is exceptionally unusual, so the precedent it establishes is unlikely to be routinely cited.  In the end, the Ninth Circuit reverses course and lets the trailer for the film Innocence of Muslims be available on YouTube.  That's the opposite of what the Ninth Circuit did fifteen months ago, when a three-judge panel reversed the district court's refusal to enter a preliminary injunction against the dissemination of the trailer.

Judge Reinhardt writes a concurring opinion that says that the en banc court didn't go far enough, and should have expedited the matter so it didn't violate the First Amendment during the past year or so.  Judge Watford writes a concurring opinion that says that the en banc court went too far, and should have issued a more limited opinion that largely resolved the present (unusual) case and no more.  Judge Kozinski dissent and says that the en banc court got it all wrong, and that he was right in the first place when he wrote the (divided) opinion for the three-judge panel.

In the end, though, these authors write for themselves.  No one else joins these opinions.

I'm particularly interested in what Judge Kozinski thinks about this outcome.  It's a well-known case.  It's gotten a huge amount of attention.  In the end, he's outvoted.  11-1.  Not a single judge on the en banc panel thinks he got it right.

I can say with confidence that Judge Kozinski's ego is far from fragile.  Moreover, he's more than happy to be a voice crying out in the wilderness.

But I nonetheless wonder if it doesn't make even Judge Kozinski sit down for a moment and think about things when ten of his fellow judges -- including several he knows to be incredibly bright -- believe that his opinion is insufficiently attentive to the needs of the First Amendment.  A clause of the Constitution about which Judge Kozinski cares, I think, fairly deeply.

I'm confident that, if asked, Judge Kozinski would undoubtedly say:  "Nope.  Doesn't make me hesitate in the slightest.  I'm right, everyone else is wrong."  He's definitely that type of guy.

I nonetheless wonder if there aren't at least a couple of reflective neurons, perhaps firing deep down in the frontal load of his cerebral cortex, that would oppose such a sentiment.