FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 26 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
In re: DAN FARR PRODUCTIONS; No. 17-72682 BRYAN BRANDENBURG; DANIEL FARR. D.C. No. ______________________________ 3:14-cv-01865-AJB-JMA
DAN FARR PRODUCTIONS; DANIEL FARR; BRYAN BRANDENBURG, OPINION
Petitioners,
v.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO,
Respondent,
SAN DIEGO COMIC CONVENTION,
Real Party in Interest.
Petition For Writ Of Mandamus
Submitted October 10, 2017 * San Francisco, California
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges. PER CURIAM:
* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). This petition for a writ of mandamus arises in the context of a hotly
contested trademark action initiated by San Diego Comic Convention (“SDCC”)
against the producers of the Salt Lake Comic Con—Dan Farr Productions, Daniel
Farr, and Bryan Brandenburg (“Petitioners”)—over the use of the mark “comic-
con” or “comic con.” The case has drawn nationwide attention and discussion on
traditional and social media alike, in part because “comic cons” have been held in
hundreds of venues across the United States. Because defendants actively
participated in the public discussions over the internet, on various websites and
through social media platforms, including Twitter feeds and Facebook postings,
SDCC successfully moved for a sweeping set of “suppression orders” prohibiting
Petitioners from expressing their views on the pending litigation and from
republishing public documents over social media platforms. Instead, the court
ordered Petitioners to prominently post on their social media outlets its order
prohibiting comments about the litigation on social media, dubbing this posting a
“disclaimer.” Petitioners assert that the court-ordered prior restraints on their
speech violate the First Amendment. We agree, and order that the district court
vacate the “suppression” and “disclaimer” orders.
I
2 BACKGROUND
SDCC is a non-profit corporation dedicated to the appreciation of comics
and other popular arts through events, including its “Comic-Con convention” in
San Diego, California. Petitioners produce Salt Lake Comic Con, which is a comic
and popular arts convention in Salt Lake City, Utah. In 2014, SDCC filed this
federal trademark action against Petitioners, alleging that their use of the term
“Comic Con” infringes on SDCC’s “COMIC-CON” family of service marks and
constitutes false designation of origin under the Lanham Act. Petitioners filed an
answer and counterclaims against SDCC, in which they allege that SDCC has
abandoned the trademarks asserted against them and that the trademarks are
generic and descriptive. The district court denied Petitioners’ subsequent motion
to amend their defenses and counterclaims to allege that SDCC procured its
trademark registrations by fraud. Trial is scheduled to begin on November 28,
2017.
Throughout the litigation, Petitioners have posted on their websites and
social media platforms various news articles on the case, documents that are
publicly available on the district court docket, and their own opinions on the merits
of the case and SDCC’s conduct. Petitioners assert that they are seeking moral and
material support from comic fans everywhere who also use the term “comic con,”
3 and that the target audience of their speech is “people outside the venue, where the
litigation’s effects will be most felt.”1
On July 6, 2017, SDCC moved the district court for a “protective order” to
prohibit Petitioners from making public statements prior to and during trial on
certain topics relevant to the merits of the case. SDCC argued that Petitioners’
objective is to “taint[] the jury pool” and “win this case in the court of public
opinion.” In support of its motion, SDCC submitted evidence of Petitioners’
numerous social media posts that express their opinions on the merits of the case
and user responses thereto; two of Petitioners’ press releases, one of which
“boast[s] they have secured more than 200,000 media articles reporting on the
case” and “claim[s] the majority are overwhelmingly favorable to [Petitioners’]
case”; pages from Petitioners’ website with links to news articles on the case and
documents filed in the district court; and one 2014 online magazine article that
quoted Petitioner Brandenburg.
The district court granted the motion in part, concluding that Petitioners’
comments, posts, and actions were threatening SDCC’s constitutional right to a fair
trial. The order prohibits Petitioners from commenting on “topics that relate to”:
1 As the district court noted, “comic cons are held in nearly every state of the United States” and “over 100 competitors us[e] the unhyphenated form of Plaintiff’s trademark.”
4 (3) Any statement that accuses, suggests, implies, or states that SDCC lied and/or committed fraud (other than in documents to be filed with the Court);
(4) Any statement about the genericness of the term comic con (other than in documents to be filed with the Court);
(5) Any statement about whether the term comic con is descriptive (other than in documents to be filed with the Court);
(6) Any statement about whether SDCC abandoned any trademark rights (other than in documents to be filed with the Court).
The order also states that if Petitioners “post, share, publish, or link public
documents that relate to this case . . . they are ORDERED to publicize the
documents in full or share a link to the full document,” and may not enhance
postings with “any comments, opinions, editorials or conclusions that relate to the
foregoing statements that have been deemed suppressed.” Finally, the order
requires Petitioners to prominently post a disclaimer describing its requirements on
their “website, social media site, and any print or broadcast advertisement or press
release that makes reference to San Diego Comic Con or this dispute.” The
mandated disclaimer is to state that the district court “has ordered that no editorial
comments, opinions, or conclusions about the litigation may be made on social
media and that no highlights or summaries of the status of the proceedings or the
evidence presented will be made on social media.”
SDCC then requested contempt sanctions for Petitioners’ alleged violation
of the order. The district court found Petitioners were not in contempt of court, but
5 nevertheless entered a sanctions order that further restricted Petitioners’ speech by
prohibiting “all references to the pending litigation, except the disclaimer ordered
by the Court, on [Petitioners’] websites and social media.” Further, the district
court prohibited Petitioners from re-publishing any publicly available documents
about the case, including documents publicly filed in the district court. See
September 21, 2017 Hearing Transcript at 108:19–21 (“[N]ow I’m basically saying
you post no documents about the issues in the caseno comment, no postings.”).
The district court also ordered Petitioners to pay all costs and fees associated with
the contempt motion.
II
The orders at issue are unconstitutional prior restraints on speech. 2 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. 3 Levine v. U.S. Dist.
2 There is no dispute that the district court’s orders are prior restraints on speech, as the district court itself acknowledges. There is a heavy presumption against prior restraints on speech, and they are subject to the strict scrutiny standard of review. 3 Contrary to SDCC’s argument, Levine’s recognition that a lower standard applies to prior restraints of attorneys participating in a case, who are officers of the court subject to fiduciary and ethical obligations, does not apply to non-attorney participants.
6 Court, 764 F.2d 590, 595 (9th Cir. 1985); see also Org. for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971).
A
Petitioners’ speech does not constitute a serious and imminent threat to
SDCC’s right to a fair trial. A prior restraint to ensure a fair trial is permissible
“only if its absence would prevent securing twelve jurors who could, with proper
judicial protection, render a verdict based only on the evidence admitted during
trial.” Hunt v. Nat’l Broad. Co., 872 F.2d 289, 295 (9th Cir. 1989) (citing
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 569 (1976)).
The district court found that standard was met because of the reach of the
internet. It found that Petitioners through their “range of online networks would
reach an extensive amount of people” because “Brandenburg’s Twitter feed has
more than 5,200 followers, the Salt Lake Comic Con Twitter feed has more than
30,000 followers, there have been more than 200,000 media articles reporting on
the instant case, and in 2014 Salt Lake Comic Con had more than 120,000
attendees.” It concluded that the jury “venire is being influenced through social
media dialogue” in which Petitioners express “their opinions on the merits of this
case,” giving nine examples of Facebook comments responding to Brandenburg’s
posts that expressed support for Petitioners’ litigation position.
7 However, there is no causal link between the numbers of social media
participants and the district court’s conclusion that Petitioners’ speech will
preclude the seating of an impartial jury. The district court draws prospective
jurors from a list of approximately 1.75 million registered voters in San Diego and
Imperial Counties. 4 Simply stated, there is no evidence connecting the scope of
Petitioners’ speech with the relevant jury pool. 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. Even were we to hypothetically
and implausibly assume that each Twitter follower and 2014 Salt Lake Comic Con
attendee is a registered voter in San Diego and Imperial Counties (and that there is
no overlap), that group would constitute only approximately 8.9 percent of the
relevant jury pool, which is insufficient to demonstrate that twelve unbiased jurors
could not be found absent the restraining orders. See Hunt, 872 F.2d at 295 (where
pre-trial broadcast would likely reach slightly more than 20 percent of all adults in
4 See UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, https://www.casd.uscourts.gov/Jurors/SitePages/Home.aspx (last visited Oct. 19, 2017); CALIFORNIA SECRETARY OF STATE, REPORT OF REGISTRATION AS OF FEBRUARY 10, 2017, REGISTRATION BY COUNTY, http://elections.cdn.sos.ca.gov/ror/ror-pages/ror-odd-year-2017/county.pdf (last visited Oct. 19, 2017).
8 the relevant area, “there remain[ed] an extremely large pool of untainted potential
jurors from which to draw twelve”); Columbia Broad. Sys. v. U.S. Dist. Court, 729
F.2d 1174, 1182 (9th Cir. 1984) (“CBS”) (pretrial broadcast of government
surveillance tapes “extremely unlikely” to produce “community-wide prejudice” in
a venue of twelve million people). As for the “200,000 media articles” highlighted
by the district court, they were predominantly a single article written in 2014 by
the Associated Press and printed in approximately 160,000 papers world-wide.
There is no evidence of the extent to which the jury pool was exposed to such
coverage, which apparently did not even reach the district court judge.5 There is
also no evidence that any of the Facebook users who expressed support for
Petitioners in response to Brandenburg’s postings about this case are part of the
jury pool, and in any event the record reflects that the total number of such users is
insignificant.
The district court’s analysis also disregarded two critical factors for
evaluating the likely effect of pretrial publicity on the jury pool: 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. See Hunt, 872 F.2d at 294–95 (citing
5 The district court noted at one hearing about the extensive nature of the postings, “Because for some reason, I must live under a rock. I didn’t see any [of] this stuff.”
9 CBS, 729 F.2d at 1180) (the court must examine the capacity of pretrial publicity
“to inflame and prejudice the entire community”). Both demonstrate that this case
is simply not one of the rare instances in which pretrial publicity mandates prior
restraints.
This civil trademark infringement action involves issues that are far more
banal than the subject matters of the criminal trials in which pretrial publicity has
presented serious constitutional problems. See, e.g., CBS, 729 F.2d at 1181
(collecting cases that involved armed robbery, kidnapping, bludgeoning, and
murder, and concluding prosecution of prominent defendant for conspiracy to
import cocaine was not lurid or highly inflammatory); Sheppard v. Maxwell, 384
U.S. 333, 356, 363 (1966) (holding that media coverage contributed to due process
violation in murder trial that “intrigue[d] and captivate[d] the public fancy to a
degree perhaps unparalleled in recent annals”). And, as we have long held, pretrial
publicity is less likely to threaten the fairness of trial in a large metropolitan area.
See Hunt, 872 F.2d at 295 (concluding that although double murder trial “may
involve lurid or inflammatory subject matter, San Mateo County is the type of
populous, heterogeneous metropolitan area where prejudicial publicity is less
likely to endanger the defendant’s right to a fair trial”); CBS, 729 F.2d at 1181–82;
Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1146 (9th Cir. 1983); see also
Skilling v. United States, 561 U.S. 358, 382 (2010) (“Given this large, diverse pool
10 of potential jurors, the suggestion that 12 impartial individuals could not be
empaneled is hard to sustain.”).
The district court also erroneously focused on Petitioners’ effective use of
their First Amendment rights to mobilize sentiment within the community of
“Comic Fandom” worldwide. That a handful of passionate supporters engaged
with Brandenburg on his Facebook page and the indisputable fact that “the ‘Comic
Fandom’ community is logically inclusive of San Diego comic fans” does not
prove that the jury pool—all adult, registered voters in the San Diego and Imperial
Counties—was reached, let alone irreparably tainted. Without such an evidentiary
demonstration, the prior restraint orders cannot stand.
B
A prior restraint is not the least restrictive means of ensuring a fair trial here.
See Levine, 764 F.2d at 595. We have previously approved “voir dire, jury
instructions, delay, change of venue or jury sequestration” as appropriate
alternatives preferable to censorship. Hunt, 872 F.2d at 295–96; see also Nebraska
Press, 427 U.S. at 564.
The district court considered and rejected voir dire, jury instructions, and
sequestration. The court found voir dire insufficient because it would entail
excluding from the jury all citizens who have read or heard about the case and who
11 keep abreast of current events.6 But voir dire means nothing of the sort—rather, it
screens out “those with fixed opinions as to guilt or innocence.” Nebraska Press,
427 U.S. at 564 (emphasis added). Similarly, the district court found jury
instructions “inadequate” because “the Court cannot run the risk of thinking the
jury will do as the Court says.” But we and the Supreme Court have repeatedly
recognized a rebuttable presumption that juries follow jury instructions. See, e.g.,
Harris v. Rivera, 454 U.S. 339, 346 (1981) (per curiam); Trillo v. Biter, 769 F.3d
995, 1000 (9th Cir. 2014). The district court failed to identify any reason why that
presumption is inappropriate in this case.7 And the court found sequestration
“would not be appropriate as jurors should not have to endure the burden of
[Petitioners’] transgressions.” But juror inconvenience alone cannot outweigh
Petitioners’ exercise of fundamental First Amendment rights.8
6 We note that the district court purported to rely on our analysis of voir dire in Levine but actually cited a quote from the district court’s opinion. Our opinion clearly recognized that “searching voir dire” could eliminate bias caused by pre- trial publicity. Levine, 764 F.2d at 600. 7 For the same reason, SDCC’s argument that, regardless of whether an impartial jury could be selected, the restraining orders are necessary based on “the risk jurors would find improper material online” during trial is unavailing. Our recognition in Levine that “[e]ven if an impartial jury could be selected, intense prejudicial publicity during and immediately before trial could allow the jury to be swayed by extrajudicial influences,” was in the context of a “circus-like environment that surrounds highly publicized trials,” a context far removed from the situation here. 764 F.2d at 598 (citing Sheppard, 384 U.S. at 342–49 (describing circus-like environment surrounding sensational murder trial)). 8 To the extent the district court or SDCC believes Petitioners’ speech was transgressive rather than just effective, persuasive, or opinionated—and there is no
12 In addition to improperly analyzing each alternative, we note that the district
court’s logic disqualified alternatives categorically and would justify imposition of
prior restraints in almost any situation where an article is written or a statement is
made in a public forum. Cf. Nebraska Press, 427 U.S. at 554 (“[E]ven pervasive,
adverse publicity does not inevitably lead to an unfair trial.”). In doing so, the
district court rejected binding precedent that voir dire, sequestration, and jury
instructions can be alternatives to prior restraints. See CBS, 729 F.2d at 1182–83.
This record does not demonstrate that those alternatives are unavailable or
inappropriate, and any imposition of a prior restraint must be based on case-
specific justifications for why less extreme measures are not viable alternatives.
III
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
evidence in the record before us supporting such a finding—the proper remedy is almost certainly retrospective damages, not a broader prior restraint. CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (“Subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context.”). Similarly, to the extent Petitioners posted materials subject to a court order sealing them, judicial sanctions might be warranted.
13 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.
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).
Prior restraints “are the most serious and the least tolerable infringement on
First Amendment rights.” Nebraska Press, 427 U.S. at 559. The district court
clearly erred in determining that Petitioners’ speech presents a serious and
imminent threat to a fair trial and that less restrictive alternatives to a prior restraint
on speech were unavailable. “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373–74 (1976). Accordingly, we grant the petition for a writ
14 of mandamus. 9 The district court is directed to vacate its order of July 18, 2017, as
modified on July 21, 2017 and August 24, 2017; and its order of September 25,
PETITION GRANTED.
9 Mandamus jurisdiction is proper under the All Writs Act, 28 U.S.C. § 1651(a), in instances where district courts clearly err in imposing prior restraints. CBS, 729 F.2d at 1177–78. The first three factors articulated in Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977), weigh in favor of granting the writ (as we did in Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010), we assume without deciding that pre-trial restraining orders on speech are not reviewable under the collateral order doctrine); the second two factors are inapplicable.
15 COUNSEL
Michael I. Katz and L. Rex Sears, Maschoff Brennan PLLC, Irvine, California, for Petitioners.
Callie R. Bjurstrom, Peter K. Hahn, and Michelle A. Herrera, Pillsbury Winthrop Shaw Pittman LLP, San Diego, California; Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for Real Party in Interest.