Before the social media era really kicked into gear, I was representing a defendant in a defamation case who was being sued by a very wealthy plaintiff. Because of his charitable generosity, the plaintiff’s name was on everything in town (I’m not saying which town), including schools, buildings, bus stops and highway exit signs. There was even (I swear this is true) a statue of the plaintiff’s mother in the city park across from the courthouse. We moved to change the venue, on the theory that the defendant could not get a fair trial because jurors literally could not travel from their homes to the courthouse without being bombarded with information about how wonderful our opponent was. The case settled before this novel motion was tested.
Now, in the social media era, the problem I was worried about back then can pop up in any case. If a litigant builds up a sufficient social media following and gets a few Facebook posts or tweets to go viral– VOILA! — tainted jury pool. At least that was the theory behind the gag order issued by the Southern District of California in San Diego Comic Convention v. Dan Farr Productions. However, the Ninth Circuit recently vacated that order, finding among other things that a “run-of-the-mill” trademark case just wasn’t important enough to justify a prior restraint on speech.
Background: Battle of the COMIC-CONs
In August 2014, the organizers of the San Diego Comic-Con (“SDCC”), which has been doing business since 1975 and is the owner of the registered COMIC CON mark, filed a trademark infringement lawsuit against the organizers of a rival “Comic Con” in Salt Lake City (“SLCC”). SLCC, noting that over a hundred other comic book conventions also use some form of the COMIC CON mark, asserts in its defense that the mark is descriptive, that it has become generic, and that SDCC obtained its registration by fraud.
SLCC, perceiving itself as the David to SDCC’s Goliath, also did what many a David does nowadays – it took to social media and rallied the troops in favor of the little guy. SLCC uploaded court documents, provided a running commentary on case developments, and encouraged online discussion around its accusation that SDCC engaged in “fraud.” This campaign was wildly successful, according to SDCC, which asserted that its reputation was smeared and that SLCC secured “more than 200,000 media articles . . . favorable to” SLCC. Internet users took the bait and chimed in, largely agreeing that “SLCC is awesome” and SDCC’s case was “BS.” Among many other comments, internet users stated:
[SDCC’s] entire lawsuit was predicated on a falsehood. LOL
There is no excuse for this suit, the law is clear.
These documents are fascinating, and show a clear falsehood (holy crap someone is in big trouble) . . . .
Sounds like perjury to me and they should be held accountable for the felonies committed
The entire case for SDCC was based on a lie. It’s what bullies do.
The District Court’s Gag Order
On July 6, 2017, SDCC filed a “Motion for a Protective Order,” arguing that SLCC’s social media activity was tainting the jury pool with extraneous evidence, thus depriving SDCC of its right to a fair trial.
The Southern District of California agreed. The Court recognized that ordering SLCC to shut up would be a prior restraint on speech, which was “one of the most extraordinary remedies known to our jurisprudence.” However, the Court found that SLCC’s social media activity was a “clear and present danger or serious and imminent threat” to SDCC’s right to a fair trial. Key to the Court’s decision was the fact that SLCC had over 30,000 Twitter followers so “any posting, sharing, liking or dissemination of information . . . would reach an extensive amount of people.”
Based on the foregoing, the Court prohibited SLCC from making:
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);
Any statement about the genericness of the term comic con (other than in documents to be filed with the Court);
Any statement about whether the term comic con is descriptive; and
Any statement about whether SDCC abandoned any trademark rights (other than in documents to be filed with the Court).
When SDCC subsequently accused SLCC of violating the order, the Court further prohibited SLCC from making any “references to the pending litigation” at all, and also from uploading even publicly-filed documents. The judge explained:
Now, I’m basically saying you post no documents about the issues in the case – no comment, no postings.
The Ninth Circuit Vacates
SLCC appealed and, on October 26, 2017, the Ninth Circuit Court vacated the District Court’s order. The Ninth Circuit held that the District Court “clearly erred” and that its order was an “unconstitutional prior restraint on speech” because, among other reasons:
There was no “serious and imminent threat” to SDCC’s right to a fair trial because, even if some potential jurors had seen SLCC’s posts, the voir dire process and jury instructions provide alternative, less restrictive, means of ensuring a fair trial.
The District Court neglected to consider the size of the community, in this case San Mateo County, California, which was the “type of populous, heterogeneous metropolitan area where prejudicial publicity is less likely to endanger the defendant’s right to a fair trial.”
The District Court also neglected to inquire whether the subject matter that SLCC was publicizing was “lurid or highly inflammatory.” In the Ninth Circuit’s view, the answer to that inquiry would have been “no,” because this was just a “banal” and “run-of-the-mill,” albeit “vigorously litigated,” trademark case.
Finally, the Ninth Circuit held that the order, which was limited to SLCC’s internet activities, was illogically “unmoored” from the interest it purported to protect. Why? Because the order didn’t even bother to prohibit SLCC from making exactly the same statements in the non-internet world, for example, on television (FYI: that’s the box your parents used to stare at). The subtext: the Ninth Circuit was concerned that the order was punishing SLCC for the “transgressive” content of specific past online speech (for which the appropriate remedy is a defamation action), as opposed to legitimately protecting the sanctity of a future jury pool.
Throughout the appeals process, the underlying case on the merits has continued to move forward in the District Court. According to the docket, trial is scheduled to begin later this month.