Ninth Circuit Lifts Gag Order in SDCC v SLCC Suit

The Ninth U.S. Circuit Court of Appeals this week refused to sustain the district court’s gag order on the litigants in the San Diego Comic-Con’s suit against Salt Lake Comic Con and its organizers, Dan Farr and Bryan Brandenburg. The suit about alleged infringement of SDCC’s trademark on the words “comic con” has been in progress since 2014.

Judge Anthony Battaglia granted the gag order in July at the request of SDCC’s attorneys, swayed by their argument that publicity is tainting the jury pool. Salt Lake Comic Con’s Bryan Brandenburg has worked hard to gain public support for his side in the suit brought by San Diego Comic-Con.

The Ninth Circuit judges overruled the order, saying:

The orders at issue are unconstitutional prior restraints on speech. They prohibit speech that poses neither a clear and present danger nor a serious and imminent threat to SDCC’s (San Diego Comic-Con) interest in a fair trial…

For those interested in greater detail, here are several excerpts from the decision which begins —

This petition for a writ of mandamus arises in the context of a hotly contested trademark action initiated by San Diego Comic Convention (“SDCC”) against the producers of the Salt Lake Comic Con—Dan Farr Productions, Daniel Farr, and Bryan Brandenburg (“Petitioners”)—over the use of the mark “comiccon” or “comic con.” The case has drawn nationwide attention and discussion on traditional and social media alike, in part because “comic cons” have been held in hundreds of venues across the United States. Because defendants actively participated in the public discussions over the internet, on various websites and through social media platforms, including Twitter feeds and Facebook postings, SDCC successfully moved for a sweeping set of “suppression orders” prohibiting Petitioners from expressing their views on the pending litigation and from republishing public documents over social media platforms. Instead, the court ordered Petitioners to prominently post on their social media outlets its order prohibiting comments about the litigation on social media, dubbing this posting a “disclaimer.” Petitioners assert that the court-ordered prior restraints on their speech violate the First Amendment. We agree, and order that the district court vacate the “suppression” and “disclaimer” orders.

Several times in the Ninth Circuit’s decision, they practically teased the district court judge about his inept analysis, and tendency to draw conclusions despite a lack of evidence to support them.

There is no evidence of the extent to which the jury pool was exposed to such coverage, which apparently did not even reach the district court judge. [The district court noted at one hearing about the extensive nature of the postings, “Because for some reason, I must live under a rock. I didn’t see any [of] this stuff.”] There is also no evidence that any of the Facebook users who expressed support for Petitioners in response to Brandenburg’s postings about this case are part of the jury pool, and in any event the record reflects that the total number of such users is insignificant.

The district court’s analysis also disregarded two critical factors for evaluating the likely effect of pretrial publicity on the jury pool: whether the subject matter of the case is lurid or highly inflammatory, and whether the community from which the jury will be drawn is small and rural, or large, populous, metropolitan, and heterogeneous….

…In addition to improperly analyzing each alternative, we note that the district court’s logic disqualified alternatives categorically and would justify imposition of prior restraints in almost any situation where an article is written or a statement is made in a public forum.

Although the Ninth Circuit refused to uphold the gag order because it violated the parties’ Consitutional rights, the panel could not resist pointing out how the order was ineffectively drafted to accomplish its purpose.

The orders are simultaneously unmoored from the interest they purport to protect—the integrity of the San Diego-area jury pool. For example, nothing prohibits Petitioners from contacting and collaborating with San Diego-area media to create newspaper articles, magazine features, or television coverage of the case, and Petitioners would not even have to include the “disclaimer,” which is explicitly limited to Petitioners’ online activities. Nothing prevents Petitioners from mailing all San Diego-area residents annotated copies of the publicly available filings. And nothing prevents Petitioners from holding press conferences in San Diego at which they discuss the case (while avoiding the specific prohibitions in the first protective order).

The parties are expected to fight to the finish. In other rulings handed down by Judge Battaglia in September, he refused to grant summary judgment on the trademark infringement issue because some factual issues can only be resolved by a trial.

[Thanks to David Doering for the story.]

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