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.


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  • identicon
    Anonymous Coward, 6 Oct 2017 @ 10:45am

    "gag order seemed strange and likely a violation of First Amendment rights."

    ALL gag orders are violation of 1st Amendment rights.

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 6 Oct 2017 @ 10:46am

    What the gag order was meant for

    Was to allow all the rabid San Diego Comic Con fans (or was that keep SLC comic Con fans off when this thing went viral and it couldn't be ignored in SLC?) onto the jury.

    If SLC ComicCon talks this way up, then the SLC fans won't be available for the jury. Food for thought.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 6 Oct 2017 @ 10:50am

    I wonder how entertaining the Judges response will be.

    reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 6 Oct 2017 @ 11:26am

      Re: entertainment

      Well, judge either doubles down (in which case the entertainment will need just a little help from THAT Anonymous Coward to find the best part) or he sees his error and his response is really short: "Damn! That was a mistake!".

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 7 Oct 2017 @ 4:47pm

        Re: Re: entertainment

        A pair of possible outcomes that strikes me as similar to 'Well the sun could rise tomorrow, and do what it's always done, or it could explode and kill everyone overnight'.

        Sure the latter is possible, but a judge willing and able to admit that they screwed up? Pretty sure that's an extreme exception to the rule, such that the question isn't 'Will he double-down?' but 'How will be double-down?'

        I'd love to be proven wrong, for him to own up to his mistake and admit that he might have gone a little overboard, but I don't for one second expect to be proven wrong.

        reply to this | link to this | view in chronology ]

  • identicon
    SirWired, 6 Oct 2017 @ 12:16pm

    Judge Battaglia, Please Report to the Principals Office...

    You know you've made a bad order as a judge when the appeals court issues a special invitation to you to explain yourself, since apparently they can't figure out why you did what you did.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2017 @ 8:53am

      Re: Judge Battaglia, Please Report to the Principals Office...

      call when something other than a bunch of theater happens. I can act all high and mighty too, but if I never do anything about it all you have is just a paper tiger.

      reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 6 Oct 2017 @ 1:35pm

    Sounds like me speaking to my grandchildren

    ...Would you care to explain why you violated the constitutional rights of an entire 'class' of citizens? Or should I just ground you to your office right now?...

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Oct 2017 @ 3:33pm

    "You're not allowed to say anything beyond telling people I told you not to say anything."

    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.

    So they're not allowed to talk about the case or mention it on their website, but they are required to post a notice that they have been hit with an injunction against talking about it, and this is suppose to avoid prejudicing people?

    If the only detail they are not only allowed but required to share is that they've been barred from speaking the natural conclusion most people are likely to reach is that they were on the losing side of a court ruling. Even beyond the clear prior restraint here that part of the judgement is simply insane and would seem to undermine the very arguments made to defend it.

    reply to this | link to this | view in chronology ]

  • identicon
    Not me, again!, 6 Oct 2017 @ 4:21pm

    I thought you could only tamper with a jury

    in Florida.

    reply to this | link to this | view in chronology ]

  • identicon
    oliver, 7 Oct 2017 @ 4:27am

    Streisand effect in full force!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Oct 2017 @ 9:20am

    Comics Are Dead

    You'd think with the state of the comic industry there wouldn't be any money left for anyone to be getting in trademark battles.

    Are they honestly hoping to sell tickets to these things? I doubt there's enough comic fans left to cover the convention costs.

    reply to this | link to this | view in chronology ]


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