The stakes just raised in an imminent trial over the validity of the San Diego Comic-Con trademark. What started out as a straightforward trademark dispute has now implicated First Amendment free speech issues.
The underlying case involves an action by SDCC, which owns a trademark registration for San Diego Comic-Con, against Dan Farr and Bryan Brandenburg, organizers of a Utah convention named Salt Lake Comic Con. Among Farr’s and Brandenburg’s defenses is that “Comic Con” has become a generic description of fan conventions of that type. I recently blogged about this here.
Springing into action outside the courtroom as well as in, Farr and Brandenburg made numerous posts on their website and social media accounts, including by posting court documents, painting themselves as plucky Davids against the mighty San Diego Goliath. In addition to the trademark arguments, their posts also included accusations of fraud against SDCC, but these claims were dismissed last month on summary judgement. Ultimately, over 200,000 media articles were written on the case.
Anthony Battaglia, the US District Judge in San Diego, became concerned that the extensive coverage would taint the local jury pool. He issued a series of gag orders requiring both sides to refrain from discussing the issues publicly or from posting court documents. He also ordered Farr and Brandenburg to post a disclaimer on the Salt Lake Comic Con website specifically stating that they were under court order to make no comments on the case.
Farr and Brandenburg petitioned the Ninth Circuit Court of Appeals for a writ of mandamus overturning the District Court order on First Amendment grounds. They assert that they order constitutes a prior restraint on free speech, which is highly disfavored under First Amendment jurisprudence. They claim that, contrary to Judge Battaglia’s point that the imminence of trial justified his order, “the nearness of trial weighs at least as heavily against prior restraints … because that is the ‘precise time when public interest in the matters discussed would naturally be at its height.'”
They argue further that the gag order is overbroad. The judge could, for example, have prohibited comment only on the fraud claims that had already been dismissed without also barring comment on the genericness of SDCC’s trademark, which is the critical issue in the case. The ban on posting court documents also aroused Farr’s and Brandenburg’s ire. They claim that a prior restraint on truthful publication of official court records is “unprecedented.”
They had this to say in opposition to the mandated 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 Ninth Circuit agreed on October 3 to hear the petition and gave SDCC until October 6 to file its answering brief. In a rare move, the appeals court also invited Judge Battaglia to respond to Farr’s and Brandenburg’s petition.