Ninth Circuit judge calls for vote on whether an 11-judge panel should rehear Garcia v. Google stay order

Here’s the docket entry (paragraph break added):

A judge of this Court has made a sua sponte request for a vote on whether to rehear en banc the panel’s order of February 28, 2014 denying a stay of the panel’s prior orders, as amended, directing Google and YouTube to remove immediately all or part of a film entitled “Innocence of Muslims” from its platforms worldwide and to prevent further uploads. Pursuant to General Order 5.4(c)(3), the parties are requested to file simultaneous briefs setting forth their respective positions as to whether or not the order should be reheard en banc. The briefs are not to exceed 10,000 words and shall be electronically filed on or before 5:00 p.m., Pacific time, Wednesday March 12.

The en banc call is confined to the stay order only, and the parties should address only the order in briefing. Any further proceedings as to the panel opinion, including any petitions for rehearing and rehearing en banc, will be considered separately.

Note that this does just mean that one judge has asked for a vote on whether to rehear the case; all the Ninth Circuit judges will still have to vote on whether the rehearing should happen. Also, note that, because the Ninth Circuit has so many judges, rehearings “en banc” are conducted before an 11-judge panel — the Chief Judge (currently Alex Kozinski, who happens to have written the panel opinion in this case) plus 10 randomly selected ones. In other, smaller circuits, “en banc” rehearing does happen in front of the entire court.

For more on the case, see this post of mine, this post of David Post’s, and this follow-up post on the panel’s correction/clarification of its order.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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