"Comic Con" Gag Orders Vacated by Appeals Court

The organizers of the Salt Lake Comic Con couldn't discuss a trademark case on social media and were restricted from sharing court documents. The 9th Circuit rules this is unconstitutional.
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Broadly suppressing free speech is a violation of the First Amendment, even if a judge had the best of intentions when gagging the organizers of the Salt Lake Comic Con in the midst of a heated trademark lawsuit. That's the lesson from a noteworthy intervention issued late Thursday by the 9th Circuit Count of Appeals.

Dan Farr and Brian Brandenburg are defending claims of confusing the marketplace. They are in court against those who run the San Diego Comic Con, perhaps the largest and most esteemed of the fanboy conventions held throughout the U.S. The case is going to trial in late November, and a jury will get a shot at determining whether "comic con" has become too generic for trademark protection.

Before U.S. District Judge Anthony Battaglia decided on summary judgment that a trial was necessary, Farr and Brandenburg made noise about how San Diego Comic Con had committed a fraud on the Trademark Office. The claim didn't impress the judge, but it was picked up by hundreds of news sites and thousands of interested fans. The defendants in the case certainly encouraged the chatter.

Battaglia agreed with plaintiffs that Farr and Brandenburg were threatening a constitutional right to a fair trial with their actions, and so the judge granted a motion for a protective order. Farr and Brandenburg were prohibited from making comments related to the issues in the case and if they posted court documents, they had to share the documents in full without commentary. Farr and Brandenburg also were ordered to post a disclaimer on their website describing the judge's requirements.

Later, upon further objection from the plaintiffs over an alleged violation of these terms, Battaglia imposed a sanctions order that further restricted the speech of the defendants by prohibiting all references to the pending litigation on websites and social media.

An emergency writ of mandamus followed.

Now, 9th Circuit judges Kim Wardlaw, Ronald Gould and Paul Watford are stepping in and vacating the suppression orders. (See here.)

"The orders at issue are unconstitutional prior restraints on speech," they write. "They prohibit speech that poses neither a clear and present danger nor a serious and imminent threat to SDCC’s interest in a fair trial. The well-established doctrines on jury selection and the court’s inherent management powers provide an alternative, less restrictive, means of ensuring a fair trial."

The precedential opinion goes on to reject Battaglia's analysis that a prior restraint was necessary because of the reach of the internet and examples of Facebook comments responding to Brandenburg.

"However, there is no causal link between the numbers of social media participants and the district court’s conclusion that Petitioners’ speech will preclude the seating of an impartial jury," write the appellate judges. "The district court draws prospective jurors from a list of approximately 1.75 million registered voters in San Diego and Imperial Counties. Simply stated, there is no evidence connecting the scope of Petitioners’ speech with the relevant jury pool. SDCC has presented no evidence as to how many, if any, of the approximately 35,200 Twitter followers are registered voters in San Diego and Imperial Counties and how many, if any, of the 120,000 attendees of the 2014 Salt Lake Comic Con in Utah are even possibly members of the current San Diego-area jury pool. Even were we to hypothetically and implausibly assume that each Twitter follower and 2014 Salt Lake Comic Con attendee is a registered voter in San Diego and Imperial Counties (and that there is no overlap), that group would constitute only approximately 8.9 percent of the relevant jury pool, which is insufficient to demonstrate that twelve unbiased jurors could not be found absent the restraining orders."

The subject of the dispute — trademark — is also deemed "far more banal than the subject matters of the criminal trials in which pretrial publicity has presented serious constitutional problems" and that Battaglia should have explored better culling of the jury pool, jury instructions and sequestration as a less restrictive means to ensuring a fair trial.

Most importantly, the 9th Circuit highlights what's really at stake in the judge's decision to shut up litigants.

"Prior restraints 'are the most serious and the least tolerable infringement on First Amendment rights,'" they write. "The district court clearly erred in determining that Petitioners’ speech presents a serious and imminent threat to a fair trial and that less restrictive alternatives to a prior restraint on speech were unavailable. 'The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'”

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