Wow. Judge Kozinksi’s opinion order Google to take down the “Innocence of Muslims” video has a bizarre backstory. The Hollywood Reporter has the story. Apparently on February 19, the 9th Circuit (before the opinion issued) ordered Google to take down all copies if “Innocence of Muslims,” along with an gag order, filed under seal, requiring the parties not to talk about it.
In response, Google (with lead counsel Neal Katyal) filed a “EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR AN ADMINISTRATIVE STAY PENDING THEIR PETITION FOR REHEARING EN BANC (UNDER SEAL).”
Here is the intro of Katyal’s brief:
The Court yesterday issued an unprecedented sealed order directing that Defendant-Appellee Google Inc. take down the video “Innocence of Muslims” “from YouTube.com and from any other platforms under Google’s control and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court further directed that defendants take these steps within 24 hours and that they were not permitted to disclose the Order until the ii merits opinion issues in this case. As explained below, defendants (and the public) will suffer irreparable harm to their First Amendment and other constitutional freedoms if defendants are not granted a stay pending their contemplated petition for rehearing en banc.
Katyal describes the sequence of events:
1 EMERGENCY MOTION Appellees Google Inc. and YouTube, LLC (Google) move for an order to temporarily stay the Court’s February 19, 2014, order in this matter. Appellees request that the Court’s ord er be stayed until 5:00 p.m. on Tuesday, February 25, 2014, so as to allow them to prepare a petition for rehearing en banc of the Court’s order (and accompanying motion for a stay pending en banc review). At present, Google and YouTube are endeavoring to comply with the Court’s Order, but they strongly believe this Court should issue an immediate administrative stay of the Order. In support of its motion, Google states: 1. This case was filed in the District Court on September 26, 2012, and was argued on June 26, 2013. The panel that heard the case has not yet issued an opinion deciding it on the merits. Yet at 5:46 p.m. yesterday, counsel for the Defendants received a two-paragraph order from the Court directing that Google “shall take down all copies of ‘Innocence of Muslims’ from YouTube.com and from other platforms under Google’s control, and take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms.” The Court’s order further directed that Google must comply with in 24 hours of the Order ’s issuance— in other words, by 5:46 p.m. today
Katyal asked for a stay to permit Google to seek en banc review.
2 takedown process, until the opinion in this case issues.” Consistent with the intense secrecy surrounding the Order , it was not entered on the Court’s docket. 3. This Court should enter a short administrative stay to permit Google time to prepare a petition for rehearing en banc. A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic , and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested . …
This is, in short, a stunning order, both as a matter of substance and procedure.
The 9th Circuit denied this motion.
What a bizarre posture! Kudos to the speedy briefing by Katyal and counsel.