Dan Farr Productions v. United States District Court for the Southern District of California
2017 U.S. App. LEXIS 21268
| 9th Cir. | 2017Background
- SDCC sued Salt Lake Comic Con producers (Dan Farr Productions, Daniel Farr, Bryan Brandenburg) for trademark infringement over use of the term “Comic Con.”
- Petitioners publicly posted news articles, court documents, and opinions about the litigation on websites and social media to rally support and comment on the case.
- SDCC moved for a protective order; the district court issued broad “suppression” orders forbidding Petitioners from making specified statements (e.g., accusing SDCC of fraud, claiming the mark is generic or abandoned) and from republishing public court documents with commentary.
- The district court also required Petitioners to post a prominent disclaimer on their sites summarizing the gag, and later sanctioned additional restrictions after a contempt proceeding.
- Petitioners petitioned the Ninth Circuit for a writ of mandamus, arguing the orders were unconstitutional prior restraints on speech; the Ninth Circuit granted the petition and directed the district court to vacate the orders.
Issues
| Issue | Plaintiff's Argument (SDCC) | Defendant's Argument (Petitioners) | Held |
|---|---|---|---|
| Whether the district court’s orders are permissible prior restraints on speech to protect a fair trial | Petitioners’ social-media campaign risks tainting the jury pool and warrants pretrial restraints | Orders are unconstitutional prior restraints; speech did not pose a clear, imminent threat to a fair trial | Orders are unconstitutional prior restraints and must be vacated |
| Whether Petitioners’ online speech constituted a serious and imminent threat to seating an impartial jury | Wide online reach (followers, media coverage, convention attendees) makes juror prejudice likely | No evidence linking Petitioners’ audience to the relevant San Diego jury pool; subject matter not inflammatory | No serious and imminent threat shown; restraint unjustified |
| Whether less-restrictive alternatives (voir dire, jury instructions, sequestration, venue change) were adequate | District court: alternatives insufficient to prevent prejudice | Petitioners: alternatives are adequate and presumptively effective; court misapplied precedent | District court erred to reject these alternatives; prior restraint not least-restrictive means |
| Whether requiring a disclaimer and banning republication of public filings is permissible | SDCC: measures necessary to prevent extrajudicial influence | Petitioners: disclaimer coerces speech and ban prohibits sharing public records; inconsistent and overbroad | Disclaimer and ban on republishing public documents are improper, overbroad, and unjustified |
Key Cases Cited
- Levine v. U.S. Dist. Court, 764 F.2d 590 (9th Cir. 1985) (pretrial publicity standards and role of voir dire and other alternatives)
- Hunt v. Nat’l Broad. Co., 872 F.2d 289 (9th Cir. 1989) (prior restraint permissible only if no unbiased jury can be seated without it)
- Columbia Broad. Sys. v. U.S. Dist. Court, 729 F.2d 1174 (9th Cir. 1984) (pretrial publicity analysis in populous venues and alternatives to restraint)
- Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (heavy presumption against prior restraints to protect fair trial)
- Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) (limits on court-ordered suppression of speech)
- Sheppard v. Maxwell, 384 U.S. 333 (1966) (circus-like publicity can violate due process in criminal trials)
- Skilling v. United States, 561 U.S. 358 (2010) (large, diverse jury pools reduce risk that publicity prevents seating impartial jurors)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)