The U.S. Court of Appeals for the Ninth Circuit reversed a protective order in the dispute over the “Comic-Con” trademark, finding that a prohibition on the defendants from discussing the case on social media was unconstitutional.
Organizers of the San Diego Comic Convention (SDCC), which dates back to 1970 and celebrates comic art, books and other aspects of the popular arts, filed a trademark suit against the Salt Lake City Comic Con, which was launched in 2013 and is also a three-day fan event focusing on comic books, movies, television shows and gaming. SDCC argued that Salt Lake City infringed on its protected “Comic-Con” series of marks.
In September, the district court judge overseeing the case denied summary judgment for both parties and moved the case forward to trial on the issue of whether the marks remain protected or have become generic and descriptive.
The court also imposed a series of “suppression orders” prohibiting the defendants from expressing their views on the pending litigation and from republishing public documents on social media platforms. The defendants—who had actively participated in online discussions of the case—appealed the orders to the Ninth Circuit.
Siding with the defendants, the federal appellate panel declared the orders 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 interest in a fair trial,” the court wrote.
While the trial court relied upon the reach of the Internet, no causal link was drawn between the numbers of social media participants and the conclusion that the defendants’ speech would preclude the seating of an impartial jury, the Ninth Circuit said. “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,” the court said.
Even if the court assumed that all of these more than 150,000 individuals were registered voters, that group would constitute less than 9 percent of the relevant jury pool, the court added, “which is insufficient to demonstrate that twelve unbiased jurors could not be found absent the restraining orders.”
Further, the district court failed to consider “two critical factors” for evaluating the effect of pretrial publicity: 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. The civil trademark infringement action at hand “involves issues that are far more banal than the subject matters of the criminal trials in which pretrial publicity has presented serious constitutional problems,” the Ninth Circuit said.
The panel also frowned on the district court’s consideration and rejection of other, less restrictive methods of ensuring a fair trial in the form of voir dire, jury instructions and sequestration.
“Prior restraints ‘are the most serious and the least tolerable infringement on First Amendment rights,’” the panel wrote. “The district court clearly erred in determining that [the defendants’] speech presents a serious and imminent threat to a fair trial and that less restrictive alternatives to a prior restraint on speech were unavailable.”
To read the opinion in Dan Farr Productions v. San Diego Comic Convention, click here.
Why it matters: The Ninth Circuit had no hesitation in throwing out the orders, emphasizing that prior restraints on speech are more appropriately used in cases involving national security or grisly crimes instead of in the copycat comic convention dispute, where “the district court’s orders silence one side of a vigorously litigated, run-of-the-mill civil trademark proceeding.” Despite this less-than-exciting characterization, trial on the question of genericide in the closely watched case is scheduled to begin on November 28.