The Temporal Price

Imagine that you’re engaged in a serious debate of some significance to a strongly held belief, and after you make a particularly worthwhile point, the other guy says, “I’ll get back to you in 15 months on that.”  It would be ridiculous to think that the debate would hang, waiting for his reply.

Okay, that analogy doesn’t cut it for you? How about taking a child from a parent because of allegations that the parent was neglectful, and it took 15 months before it was decided that, oops, the parent was fine and there was no neglect. Here’s your kid back. What does that 15 month period mean to the parent? More importantly, what does that 15 month period mean to a child, the period representing a substantial portion of his life during which he was denied his parent’s love and guidance?

Meet the law. Some decisions never seem to get made, while others are snap decisions despite the lack of evidence or deep thought. Some claim to maintain the status quo ante, while others claim to avoid irreparable harm.  And then the case falls into the black hole of delay. The clock ticks. Days, then weeks, then months, pass. And nothing. Nobody can give the people involved, the people whose lives are touched, that time back.  And the legal system couldn’t care less.

In his dissent from the 9th Circuit’s refusal to sua sponte rehear the denial of an emergency stay of the order directing the removal of the film (and then modified to remove a scene from the film) Innocence of the Muslims, Judge Stephen Reinhardt packs quite a wallop, decrying the prior restraint, the infringement of fundamental First Amendment rights, and the significance of delaying the court’s dealing with this fiasco until it came before the court under the “regular procedure.”

It’s this final point, delaying immediate resolution until the issue was reached by the “regular procedure,” that transcends the more specific concerns of this particular case.

Although I agree with the en banc opinion that is being issued in the normal course well over a year after the unconstitutional order, I dissent from this court’s earlier refusal to go en banc immediately on an emergency basis. Only by doing so could we have prevented the irreparable damage to free speech rights in the lengthy intervening period until we could take the case en banc under our regular procedure. The unconscionable result is that our court allowed an infringement of First Amendment rights to remain in effect for fifteen months before we finally issued our opinion dissolving the unconstitutional injunction issued by a divided three-judge panel….

That same “unconscionable result,” delay while the world continues to turn, lives continue to be lived, pain continues to be suffered, freedom continues to be denied, happens all the time. Every day. Every single day.

Judge Reinhardt then pounds his point home with examples relevant to the foundational justifications for immediate action, cries that this crappy film gave rise to death in Benghazi (you may have forgotten about that, since it’s been so long) which compelled its immediate censorship in the name of safety.

In the fifteen months since the court refused to rehear the case on an emergency basis, there have been numerous developments regarding threats by religious extremists who reject pluralist values — the rise of the Islamic State of Iraq and Syria (ISIS), the murderous attack on Charlie Hebdo, the barbarous beheadings of innocent civilians, the kidnappings of young girls and their enslavement because of their religious membership, the bitter warfare between Shiites and Sunnis and among their terrorist allies, the emergence of groups such as Boko Haram, the failures of nascent democracies to take hold in the wake of the Arab Spring, and the spread of increasingly virulent anti-Semitism throughout Europe, if not the world.

In retrospect, one realizes that there was no compelling need to shut down this film.  Regardless of what one awful film showed, life would go on, others would do things to inflame anger and violence, and people would live or die having absolutely nothing to do with some dumbass film.

Yet, this case dealt with one problem, and so the court’s focus was, and should have been, limited for the purpose of this case to that one problem, a pseudo-copyright claim of an actress who was in one scene of a movie.

Some will complain that Reinhardt’s opinion is intemperate, flying off the handle at the court for not dealing with this silliness immediately rather than just addressing the First Amendment issues before the court.  That’s lawyers for you, slaves to procedure, every step of which was developed over millions thousands hundreds of years to assure the crucial, lengthy, prolonged amount of time needed to be deliberate, tedious and thorough. Plus, have adequate time for all the other busy things in their lives, like other money-making cases and work/life balance.

It’s certainly true that the law can’t happen with the snap of one’s fingers, despite the fact that some think the law ought to be simple and obvious.  It is to them, why should it be otherwise to lawyers and judges?  And yet, it’s also a lie.

We’re inundated with layers of crap, layers of delay, much of which could be eliminated if we chose to just get stuff done now.  It was not due to the hand of God, the laws of physics, some immutable force, that the 9th Circuit took 15 months to fix its mess.  And the delay of 15 months meant, in this case, that freedom was put on hold until the court got around to it.

Maybe you won’t shed tears because the film was such garbage, or so insignificant, or that so many more important things happened in the interim, but it’s not just about this film, this case, this deprivation of free speech.  It’s about a legal system that takes too long.

Think of how this would play out had this been a child deprived of her parent. Would it still be so trivial?  And just so you know, kids are taken from parents all the time, denied their love and guidance for long periods of time, and you never hear about it because it’s so routine.  Yet, this crappy, no consequence, film makes the news, while kids are ignored.

6 thoughts on “The Temporal Price

  1. Richard G. Kopf


    Wonderful and important post.

    I have always believed that at the level of the federal district court deciding was more important than explaining. I will frequently grant or deny motions quickly, and, if necessary, tell the litigants in the order that an opinion will follow. Indeed, I have done that with TRO and preliminary injunction questions, and several times after a bench trial. Frequently, in time sensitive matters, and particularly where the decision cannot be appealed and I don’t need to worry about telling the appellate court why I did or did not do something, I will deal with the issue in a simple order and leave it there.

    All the best.


    1. SHG Post author

      Thanks, Judge. I’ve pondered the disconnect between the experience of lawyers, who hold the hands of living, breathing individuals who suffer at the interminable delays of the system, and judges who don’t seem to give a damn about what delays mean to human beings. But then I remember, most never actually represented living, breathing individuals before getting the robe, so they don’t have a clue.

  2. Lex Ferenda

    Excellent article, Scott.

    Needless delay (and corresponding inflated cost/burden of litigation) has shaped me into a jaded and disillusioned law practitioner, after 24 years. So much that I have not infrequently rued my own role as a trial lawyer.

    1. SHG Post author

      Part of my “counseling” is to clarify the impact of choices based upon the reality of the system. A good idea today isn’t necessarily a good idea a couple of years from now. It’s disgraceful.

  3. William Doriss

    Justice delayed is justice denied. Been there, done that.
    It happens every day, in so many ways in so many jurisdictions.
    You failed to mention fathers jailed for lengthy periods
    of time for failure to provide child support, when the judge
    distrusted/disbelieved the father’s testimony and/or thought he was
    hiding assets. I know a couple of those. They are *horror
    stories*. Irreparable damage inevitably results. There are no
    winners. The father’s life is frequently ruined, the family fabric
    is weakened, and the State incurs the additional cost of prosecution
    and incarceration. The father comes out of prison destitute and must
    fall back on social and charitable services–which pile additional costs
    on society. Shameful! Barbaric!

    1. SHG Post author

      I’m sorry, Bill. Did I miss your issue? There are a million examples, but yours matters deeply too.

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