Metropolitan News-Enterprise


Friday, October 27, 2017


Page 3


Ninth Circuit Orders Judge to Lift Sweeping Gag Order


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday directed a judge to vacate orders that a party to litigation desist from using its website or social media for any discussion of a dispute over use of the words “comic-con” or “comic con” in connection with comic book conventions.

The defendant in a trademark infringement action, set to go to trial Nov. 28, succeeded in gaining a writ of mandate, issued late yesterday, commanding U.S. District Court Judge Anthony Battaglia of the Southern District of California to scrap his orders, aimed at preventing a tainting of the jury pool in San Diego.

The combatants are contested the San Diego Comic Convention (“SDCC”), the plaintiff, and Dab Farr Productions and others, who stage the Salt Lake Comic Con, the defendants.

Memorandum Decision

A three judge panel said in a memorandum opinion, filed late yesterday:

“The orders at issue are 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 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 panel—comprised of Judges Kim Wardlaw, Ronald Gould, and Paul Watford—observed:

“Unlike other cases involving attorneys or the press, grisly crimes or national security, the district court’s orders silence one side of a vigorously litigated, run-of-the-mill civil trademark proceeding. The orders ban Petitioners from electronically posting, transmitting, or referencing publicly available documents, in their entirety, even if posted without commentary. And the district court went beyond silencing Petitioners; it mandated that they prominently and ubiquitously articulate a ‘disclaimer’ that, at the very least, incriminates and disparages their previously expressed opinions.”

Orders Not Sensible

It continues:

“The orders are simultaneously unmoored from the interest they purport to protect—the integrity of the San Diego-area jury pool. For example, nothing prohibits Petitioners from contacting and collaborating with San Diego-area media to create newspaper articles, magazine features, or television coverage of the case, and Petitioners would not even have to include the ‘disclaimer,’ which is explicitly limited to Petitioners’ online activities. Nothing prevents Petitioners from mailing all San Diego-area residents annotated copies of the publicly available filings. And nothing prevents Petitioners from holding press conferences in San Diego at which they discuss the case (while avoiding the specific prohibitions in the first protective order).”

The panel labeled Battaglia’s edicts “suppression orders.”

The case is Dan Farr Productions v. United States District Court for the Southern District of California, No. 17-72682.


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