Gag Order in Comic-Con Trademark Case Violates First Amendment

The San Diego Comic Con (“con” is short for “convention”) is an international convention held each summer in San Diego, California.  Attendance in recent years has been around 130,000.

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The San Diego Comic Conn (or SDCC for short) sued Dan Farr Productions, the producers of the “Salt Lake Comic Con”—a similar convention but half the size.  The SDCC sued for trademark infringement in federal court in California.

While the litigation is ongoing, Dan Farr is allegedly using social media to try and turn public opinion against the SDCC by expressing its views on the merits of the lawsuit.  Many people and organizations use the phrase “comic con,” and Dan Farr is seeking “moral and material support” during the lawsuit.  In response and at the SDCC’s request, district court issued two “suppression orders” to Dan Farr.   First, the court prohibited Dan Farr from expressing on social media its views concerning the litigation.  Second, the court required Dan Farr to post on its social-media pages a “disclaimer” stating that it had been ordered not to comment on the ongoing litigation.  The district court held that the orders were necessary to ensure a fair trial.

Can you see the First Amendment problem?  The Ninth Circuit Court of Appeals sure did: “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.”  With that, Dan Farr is free to comment on the comic-con case.

Case: In re Dan Farr Prods., No. 17-72682 (9th Cir. Oct. 26, 2017) (opinion here)

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