Salt Lake Comic Con Fights Back Against Judge's 'Unprecedented' Gag Order
from the free-as-in-speech dept
As you will recall, the trademark dispute between the San Diego Comic Convention and the Salt Lake Comic Con is now in full swing. Thus far, the action has been somewhat strange, with the SLCC getting some pushback from the court based on what looks to be a flipflopping of exactly what defense it is claiming. That flipflopping has mostly amounted to varied claims by SLCC, run by Dan Farr Productions, that San Diego Comicon trademark for “comicon” was either generic at the time it was granted the mark or has become generic since being granted the mark. Due to that, Judge Anthony Battaglia has allowed the jury trial to move forward instead of issuing a judgment. But before he did so, Battaglia also issued a somewhat strange gag order on the Salt Lake Comic Con, prohibiting it from putting information about the case on its website, engaging the press regarding the trial, and even requiring Dan Farr Productions to put a disclaimer on its website about the injunction. At the time, we wrote that the gag order seemed strange and likely a violation of First Amendment rights.
And now Dan Farr Productions is arguing the same thing, having petitioned the 9th Circuit to vacate the gag order entirely.
In a writ petition to the 9th Circuit, they suggest that the trial judge’s suppression orders be vacated as unconstitutionally vague and coercive. They doubt that the pool of potential jurors in the San Diego area is truly being unduly influenced, and in any event, they argue the judge’s gag order is tantamount to a prior restraint in contradiction of the right to free speech.
“Without more, the nearness of trial weighs at least as heavily against prior restraints as in favor, because that is ‘the precise time when public interest in the matters discussed would naturally be at its height’ and ‘[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech…bears an inverse ratio to the timeliness and importance of the ideas seeking expression,'” states the petition. “To conclude otherwise — to allow the nearness of trial, of itself, to justify prior restraints — would be to countenance ‘[a]n endless series of moratoria on public discussion’ about first one case and then another, as they work their way through the system and near trial, which ‘could hardly be dismissed as an insignificant abridgment of freedom of expression.’”
In the petition, embedded below, the attorneys go on to point out that this kind of prior restraint on factual information about a case is without precedent. In addition, the requirement to put the disclaimer on their website is argued to put the SLCC in the position of either putting the disclaimer on the site and appearing to bow down before the court’s infringement of its speech, or not putting the disclaimer up at all and therefore being unable to inform readers of the site of the infringement of its speech. Either way, through the prior restraint gag order issued by the court, the Salt Lake Comic Con is left unable to simply explain its side of the case.
Fortunately, it looks like the 9th Circuit is more than a bit interested in hashing this out.
A panel of judges say, in a short order issued Tuesday, the petition “raises issues that warrant an answer” and that San Diego Comic-Con has until noon Friday to file an answer. Additionally, in an extremely unusual move, the appellate court is also allowing Judge Battaglia an opportunity to address the petition.
I have to say, being able to hear Judge Battaglia explain his response to the petition will be quite interesting. I’m struggling to come up with what he might say beyond repeating the questionable concerns about jury tampering that might actually move the needle on the gag order being anything other than questionable at best.