A hotly contested lawsuit headed to trial in San Diego federal court soon over whether who, if anyone, owns the “comic con” name has turned into a fight over free speech.

The First Amendment squabble explores to what extent litigation can be tried in the media — be it in the traditional press or on social media — before a party’s right to a fair trial is violated.

In this case, the 9th U.S. Circuit Court of Appeals has spoken, on Thursday issuing a ruling stating a San Diego federal judge went too far when he prohibited the producers of Salt Lake Comic Con from posting court documents and commentary on the case online. The three-judge panel called the lower court’s protective order unconstitutional and reversed it.

“Common sense (and the Constitution!) win in Comic Con gag order appeal,” Salt Lake Comic Con tweeted on Monday.


San Diego Comic-Con — the juggernaut of pop culture and comic book conventions — sued the producers of a Salt Lake comic convention in 2014, alleging trademark infringement on the use of “comic con” in its name. The lawsuit came after the Salt Lake producers, Dan Farr of Dan Farr Productions and Bryan Brandenberg, ignored letters to cease-and-desist using the name, and after organizers drove around an Audi advertising its smaller Comic Con in the midst of San Diego’s convention.

Salt Lake producers countersued, alleging the phrase is descriptive and generic, used in some form or another by more than 100 similar conventions around the country.

After several unsuccessful attempts to settle, the case appears headed to trial beginning Nov. 28.

Throughout the litigation, Salt Lake’s organizers have been vocal, posting public court documents on its website and social medial accounts, along with commentary on the legal twists and San Diego Comic-Con’s actions, as a way to build fan support.


As San Diego saw it, Salt Lake was disclosing confidential information tagged for attorney eyes only, and the online campaign was tainting the jury pool and trying to “win this case in the court of public opinion.”

U.S. District Judge Anthony Battaglia agreed that the right to a fair trial was being threatened, so he severely limited what Salt Lake could post about the case.

For example, Salt Lake was restricted from posting statements about the genericness of the term “comic con,” as well as statements that San Diego had abandoned any trademark rights or committed fraud. He also ordered any public court documents posted about the case be either posted in full or with a link to the full document.

A disclaimer also had to be prominently displayed, reading the 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.”


San Diego then blamed Salt Lake for violating the court order and asked for sanctions against the organizers. The judge did not find contempt but restricted commenting even further, to all references to the case.

But the appeals judges ruled the restrictions violated Salt Lake’s First Amendment rights and that Battaglia’s efforts to protect a potential jury were misplaced.

The orders “prohibit speech that poses neither a clear and present danger nor a serious imminent threat to SDCCs interest in a fair trial,” the 9th Circuit ruling states.

Battaglia’s concern over the long reach of the internet and Salt Lake organizers’ large number of followers also doesn’t stand up, since the jury will be drawn from a pool of 1.75 million registered voters in San Diego and Imperial counties.


“Simply stated there is no evidence connecting the scope of Petitioner’s speech with the relevant jury pool,” the ruling states.

The appellate judges said there were many other ways to protect juror impartiality during the jury selection process and during the trial that are less restrictive.

Attorneys on both sides declined to discuss the ruling Tuesday.


kristina.davis@sduniontribune.com

Twitter: @kristinadavis