In Comic-Con Dispute, Appeals Court Wants to Hear More About Judge's Gag Order

Superman, Marvel Characters and Liu Kang
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A group of Comic-Con attendees dressed as assorted Marvel and DC Comics characters (and Liu Kang from Mortal Kombat).

Fanboys may cosplay, and production companies may show off, but Comic-Con will soon be remembered just as much for its suppressed speech. That's because in a legal dispute over who gets exclusive commercial rights to use "comic con," the 9th Circuit Court of Appeals has just granted an emergency motion as it considers intervening over the way a judge has barred the litigants from discussing a quickly approaching trial.

The judge's gag order came shortly before the San Diego Comic-Con this past July. As folks were gathering in the warm-weather city to hear about the second season of Netflix's Stranger Things and more, U.S. District Court Judge Anthony Battaglia issued a series of orders requiring the litigants to refrain from discussing the issues in the trademark case. What's more, the judge restricted them from posting court documents on websites and through social media. And further, the judge made Dan Farr and Bryan Brandenburg, who run the Salt Lake Comic Con, post a disclaimer on their website about their inability to make comment.

Battaglia imposed these restrictions after hearing how more than 200,000 media articles had tainted discussion of the dispute. The organizers of Salt Lake Comic Con were forced to shoulder the blame for leading interested observers to regard how San Diego Comic-Con had committed a fraud in regard to their trademark applications.

The case is not really about fraud, or at least, those claims have been rejected. After a recent summary judgment ruling, a coming trial scheduled for November will examine whether or not "comic con" is too generic to be conferred trademark protection.

Those who attend fanboy conventions are passionate about entertainment. Naturally, a lawsuit impacting the lucrative business of holding such conventions has generated attention. Many articles written about the dispute see San Diego Comic-Con as the Goliath attempting to stamp out other comic-cons throughout the nation.

Farr and Brandenburg insist they have a right to speak up about all of this. In a writ petition to the 9th Circuit (read here), they suggest that the trial judge's suppression orders be vacated as unconstitutionally vague and coercive. They doubt that the pool of potential jurors in the San Diego area is truly being unduly influenced, and in any event, they argue the judge's gag order is tantamount to a prior restraint in contradiction of the right to free speech.

"Without more, the nearness of trial weighs at least as heavily against prior restraints as in favor, because that is 'the precise time when public interest in the matters discussed would naturally be at its height' and '[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech...bears an inverse ratio to the timeliness and importance of the ideas seeking expression,'" states the petition. "To conclude otherwise — to allow the nearness of trial, of itself, to justify prior restraints — would be to countenance '[a]n endless series of moratoria on public discussion' about first one case and then another, as they work their way through the system and near trial, which 'could hardly be dismissed as an insignificant abridgment of freedom of expression.'”

They add that the judge's prohibition to speak about the dispute on Facebook and other channels isn't narrowly drawn. The judge could have, for example, just restrained Brandenburg from commenting about fraud — not genericness. They say that depriving them of First Amendment rights as a sanction for violating a court order amounts to criminal contempt sanction imposed without due process.

And as far as the prohibition on posting public documents goes, the attorney for Farr and Brandenburg writes, "So far as petitioners can tell, the district court’s prior restraint against 'truthfully publishing information released to the public in official court records' is unprecedented."

Farr and Brandenburg also object to the disclaimer.

"[T]he petitioners should not be forced to make the Hobson’s choice between (1) acquiescing in the continued infringement of their right to remain silent, by retaining the unduly intrusive disclaimer mandate, or (2) saying nothing, not even that they have been suppressed, when they want to explain their silence."

The 9th Circuit is interested. 

A panel of judges say, in a short order issued Tuesday, the petition "raises issues that warrant an answer" and that San Diego Comic-Con has until noon Friday to file an answer. Additionally, in an extremely unusual move, the appellate court is also allowing Judge Battaglia an opportunity to address the petition.