October 27, 2017 / 5:37 PM / a year ago

Common sense (and the Constitution!) win in Comic Con gag order appeal

(Reuters) - On Thursday, a three-judge panel at the 9th U.S. Circuit Court of Appeals dissolved a pair of lower court orders that barred producers of Utah’s Comic Con events from commenting on – or even posting public documents from – their infringement litigation with a San Diego group that claims ownership of the Comic-Con trademark. The appeals court held the orders to be an unjustified, unconstitutional prior restraint on the Utah group’s free speech rights.

That was the only sensible outcome. The trial judge in the Comic Con case, U.S. District Judge Anthony Battaglia of San Diego, issued the orders because he was convinced the Utah group’s website, Facebook and Twitter posts - which included commentary as well as links to articles about the case and documents from the litigation – would irretrievably taint the jury pool in San Diego. The 9th Circuit said Judge Battaglia’s reasoning simply didn’t hold up given the size of the jury pool and the availability of common procedures like voir dire to weed out biased jurors.

Allowing the restraints to remain, the 9th Circuit said, would justify gag orders “in almost any situation where an article is written or a statement is made in a public forum.” In other words, if the 9th Circuit hadn’t struck down the Comic Con restraints, parties’ First Amendment rights would be vulnerable in every case of public interest in the circuit. Thanks to Judges Kim Wardlaw, Ronald Gould and Paul Watford, that dire prospect is foreclosed.

As the judges pointed out, it’s a little weird that the momentous question of balancing the power of social media against the right to a fair trial presented itself in a “run-of-the-mill civil trademark proceeding” rather than a criminal case or a matter of national security. The nonprofit San Diego Comic Convention has been holding conventions for comic book, sci-fi and fantasy aficionados for decades. It has registered several Comic-Con trademarks in the U.S. and internationally.

Despite those trademarks, Comic Con gatherings have sprung up in more than 100 venues across the country in the last decade, including conferences in Salt Lake City organized by Dan Farr Productions. In 2014, the San Diego group sued the Utah group and two of its executives, Dan Farr and Bryan Brandenburg, for trademark infringement. The litigation has been hotly contested, with the Utah defendants counterclaiming the San Diego group’s trademarks are invalid, either because they were deceptively obtained or have become generic.

The Utah Comic Con defendants have made no secret of their public relations strategy. Their lawyers at Maschoff Brennan explained in a brief at the 9th Circuit that the group is using social media to draw moral support and (potentially) funding from fans and organizers of all the Comic Con gatherings outside of San Diego. To that end, the group and its chief marketing officer tried to spread news and opinions about the case via Facebook and Twitter.

The Utahns' social media activism turned into an issue at a status conference before Judge Battaglia in June, according to the San Diego group’s brief to the 9th Circuit. The judge asked whether the posts might infect the jury pool and “cautioned defendants against attempts to try this case in the court of public opinion instead of the judicial system.” In July, the San Diego group’s lawyers at Pillsbury Winthrop Shaw Pittman asked Judge Battaglia to impose a protective order, arguing the Utah group was posting confidential documents and smearing the San Diego group’s reputation.

The judge concluded he could not assure the San Diego group a fair trial without gagging the defendants. Over the summer, the judge issued three orders restraining posts by the Utah group. The final order effectively barred the Utah defendants from posting anything about the case except for the gag order itself. Not surprisingly, in September the defendants went to the 9th Circuit to ask for a writ of mandamus. The 9th Circuit considered the case sufficiently pressing that it granted expedited consideration.

The appellate court’s ruling Thursday emphasized that prior restraints on free speech are justifiable in only the most limited circumstances – and this case doesn’t warrant such an extreme measure. “The orders at issue are unconstitutional,” the 9th Circuit said. “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.”

For one thing, the appeals court said, there’s no evidence in the record to show anyone in San Diego read the Utah group’s posts. And even if every one of the Utahns’ 35,000 Twitter followers were in the jury pool, the judges wrote, it would still be possible to find 12 unbiased jurors among the nearly 2 million eligible people in the pool. Judge Battaglia, the 9th Circuit said, “erroneously focused on (the Utahns’) effective use of their First Amendment rights to mobilize sentiment within the community of ‘Comic Fandom.’”

The trial judge was also wrong to conclude that ordinary devices such as voir dire, jury instructions and jury sequestration were insufficient to protect the San Diego group’s right to a fair trial. Trial judges are supposed to operate under the presumption that jurors will follow their orders, the 9th Circuit said. Gag orders can only be a last resort.

“Prior restraints ‘are the most serious and the least tolerable infringement on First Amendment rights,’” the appeals court wrote. “The district court clearly erred in determining that (the Utahns’) speech presents a serious and imminent threat to a fair trial and that less restrictive alternatives to a prior restraint on speech were unavailable.”

I emailed lawyers for the Utah and San Diego groups to ask about the 9th Circuit decision. Both Maschoff Brennan (for the Utahns) and Pillsbury (for the Californians) declined to comment.

The views expressed in this article are not those of Reuters News.

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