As you may know, San Diego Comic Con is going on right now. And, like many techie/geeky people, while I've never attended the show, I always look forward to what comes out of the event. However, SDCC is increasingly looking like a massive censorial bully. A few years ago, we covered what we believed to be a fairly silly trademark dispute that SDCC had filed against the organizers of the Salt Lake Comic Con. We pointed out that trademarking "Comic Con" seemed silly and there was no problem with multiple Comic Con's happily co-existing. And, really, SDCC is the 800-lb gorilla here. It's the dominant comic con and has been for many, many years, as it seems to grow larger and larger. Other cities having their own comic conventions doesn't take away from SDCC (if anything they tend to reinforce the dominance of SDCC).
Last month, in covering some news about the case still going on, we added a long (longer than the post itself...) editor's note about the truly weird situation in which SDCC had sent us a ridiculous subpoena demanding (among other things) any internal documents ever mentioning SDCC and implying that we had some sort of business relationship with the organizers of the SLC event (to be clear, we have zero relationship with anyone involved in either event -- we just found a story written about the case and used that as the basis for our posts on the topic). We pushed back on SDCC and noted that it really appeared that their fishing expedition was an attempt to intimidate the press from reporting on this case. It was... really strange.
And now, with SDCC happening right now, the Hollywood Reporter has the latest on the case, in which SDCC has filed for one of the strangest legal gag orders I've seen in a while. I mean, I've seen these kinds of gag order requests filed by pro se plaintiffs, but rarely by competent lawyers working at giant famous law firms.
You can read the demand for a protective order here or below, and if I had to summarize it, it's basically: "it's no fair that Salt Lake Comic Con is getting good press coverage and we're being mocked, so the court should silence them." I read through the document and I kept expecting more... and... that's really it. They literally complain that they're losing in "the court of public opinion" and argue that it's somehow unfair that one side is talking about this case publicly and they should be barred from any further conversation. And, it gives some more context to the paranoid view that was clear in the subpoena we received: SDCC and/or its lawyers are so focused on the negative press coverage that they seem to assume that something more nefarious is going on... beyond the basic likelihood that lots of people think this lawsuit is over-aggressive bullying by SDCC.
Since the inception of this dispute, Defendants have brazenly engaged in a strategic public campaign to disparage SDCC and “win this case in the court of public opinion.” Defendants’ public campaign has included statements made in numerous press releases, news articles, on websites and on social media including Facebook and Twitter. Indeed, Defendants boast they have secured more than 200,000 media articles reporting on the case that are “favorable” to Defendants.
Um, so? I have no idea what's wrong with someone trying to get their story out when they've been sued -- especially by a much larger entity. While some people choose not to go that path, there's nothing illegal about telling your story when you've been sued -- and nothing wrong with the media picking up on the story. It's news.
SDCC goes on to claim that many of the statements made by the defendants in the case "are misleading, prejudicial, inflammatory or false." If that's the case, then go after them for defamation. Don't ask for a gag order.
Defendants repeatedly litigate their case by using media outlets to mischaracterize the parties’ positions and taint the public’s perception regarding the issues in dispute in this case. Defendants’ media campaign is increasing in intensity as this case nears trial. Defendants’ goal is to win this case by using media outlets to tarnish the reputation of SDCC and taint the jury pool. As Defendant Bryan Brandenburg stated in one of Defendants’ many press releases, “I am asking for support from the community and all the powers of the Universe to bring victory to us in this case.”
The "jury" tainting is the only aspect of any of this that seems to have a kernel of reasonableness -- but seems easily dealt with during jury selection, in which you ask the potential jurors if they're familiar with the dispute. Despite the supposed 200,000 articles on this (more on that in a moment...) I find it hard to believe that the average potential juror has heard about this dispute at all. Hell, we covered it and I had totally forgotten about it until we got that stupid subpoena (it was so ridiculous that I told the process server that he must have the wrong guy when he showed up at my front door).
From here, SDCC's high priced fancy lawyers then admit that this goes against the basic First Amendment protections anyone has... but argues that's fine and dandy because -- *gosh* -- some people are being mean to them online.
It is appropriate, however, to impose greater restrictions on the free speech rights of trial participants (such as parties and their attorneys) than on the rights of nonparticipants. Levine, 764 F.2d at 595. As the Ninth Circuit noted when considering a district court’s order restricting statements of trial participants, “several other courts have considered similar restraining orders. The overwhelming majority of those courts have upheld the restraining orders.” Id. at 596 (citing numerous cases in which restraining order on trial participants were upheld).
Now, it's important to look at the details of the case that they cite as precedent for why they can gag the people they sued: Joel Levine v. US District Court for Central District. First off, that was a criminal case, not a civil one, and it involved the lawyer for one of the people who had been charged with espionage talking to the press, and the court arguing that in certain circumstances, you could issue a very narrow injunction on this type of thing. But there are lots of conditions on that and it's hard to see how those conditions apply to a civil dispute -- and especially one where the civil dispute involves a large organization (SDCC) suing a smaller one (SLCC) and then trying to further silence the small one.
Indeed, the ruling in the Levine case specifically notes that because it's talking about lawyers the standards are different:
As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice. It is very doubtful that the court would not have the power to control release of information by these individuals in appropriate cases and to impose suitable limitations whose transgression could result in disciplinary proceedings.
But in this case, SDCC is trying to gag the actual defendants, not the lawyers.
Further, the Levine opinion makes it clear that there should be strict scrutiny applied before issuing such a gag order, as it clearly is prior restraint. From the opinion:
Accordingly, the district court's order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest,... (2) the order is narrowly drawn.... and (3) less restrictive alternatives are not available
And, really, is "people are being mean about us online" really going to qualify as "a clear and present danger or a serious and imminent threat to a protected competing interest"? Come on!
The rest of the request for the gag order is basically "damn, the other side has been effective in telling their story to the press. That's so unfair."
Since the inception of this dispute, Defendants have engaged in a willful, open, and consistent strategy to win this case “in the court of public opinion.” See Edge Decl. Ex. 1, at p. 6. Through numerous press releases, articles, interviews with various media outlets, and the pervasive use of social media, Defendants (most notably Bryan Brandenburg) have been posting material and making statements that are designed to tarnish the reputation of SDCC and thereby influence the public (including the jury pool) regarding who should prevail in this litigation. In many instances, these statements are misleading, prejudicial, inflammatory, or false. Indeed, Defendants have made their strategy and intention clear from the outset. On August 11, 2014, shortly after the dispute between the parties began, Brandenburg commented extensively in an article in Inside Counsel titled “Salt Lake Comic Con founders fight back” with the subtitle “Use the court of public opinion to combat trademark infringement claims brought by the San Diego Comic-Con.” Id. The article paints Defendants as “David” to SDCC’s “Goliath,” and compares SDCC to Superman’s nemesis Lex Luthor. Brandenburg is credited in the article with the following statement “[a]fter consulting with their lawyers, the team behind the Salt Lake Comic Con knew they had strong legal ground to stand on, but they didn’t want to go to court, they wanted to win in the court of public opinion.” Id. (emphasis added). Brandenburg is further quoted as saying “[o]ur strategy was, if we are going to spend legal fees vs. legal fees, we wanted to be creative. We put it out to the public, challenging the cease and desist letter publically.” Id. at p. 7 (emphasis added) (noting “anecdotally, the fans seem to be on the side of Salt Lake’s David rather than San Diego’s Goliath”).
Again, I'm trying to understand what the issue is here. Lots of people involved in court cases look to get support in the court of public opinion, but none of that really matters compared to the court of actual opinion: the court that is hearing the case. And, sure, the jury tainting bit is potentially an issue, but only if you really believe that the entire jury pool is going to be tainted by this. And that seems... difficult to believe.
Of course, the whole "200,000" articles bit is part of the effort to argue that this info is widespread... but the details there are... lacking. It appears the vast majority of those 200,000 are... because the Associated Press wrote about the case and it has 160,000 distribution partners.
Defendants boast that an article written by the Associated Press about this dispute was published in more than 160,000 news outlets worldwide and claim many media outlets have already declared Salt Lake Comic Con the winner in the court of public opinion.
Okay... well, I went looking for the AP stories on the case... and they're pretty damn balanced (as you would expect from the AP). Here's one from 2015 that seems unlikely to bias anyone:
Salt Lake City co-founder Bryan Brandenburg said the trademark announced Thursday will be decisive in the suit, but attorneys for the established San Diego Comic-Con disagree. The case appears headed for trial after settlement talks broke down earlier this month.
And a more recent article:
Settlement talks have broken down between the organizers of two pop-culture conventions in California and Utah known for guests' elaborate costumes, Salt Lake Comic Con officials said Tuesday.
Both sides are asking a judge to decide the contest over naming rights, said Bryan Brandenburg, co-founder of Salt Lake Comic Con.
"They want us to change our name," Brandenburg said. If the federal judge overseeing the case in San Diego doesn't side with either convention, the case could go before a jury later this year. Salt Lake has already spent nearly $1 million legal fees on the case.
Those are both snippets from longer articles, but hardly proof that a jury will be biased.
What about social media? SDCC whines that one of the organizers of the SLC event has 5,000 Twitter followers and the SLCC Twitter feed has 30,000:
Importantly, Defendants’ public campaign is not limited to press releases and contact with news media outlets. Bryan Brandenburg has waged war against SDCC on social media as well. Brandenburg uses his Twitter feed, which has more than 5,200 followers, to comment on the dispute and disparage SDCC. See Edge Decl. Ex. 4. Similarly, Defendants use the Salt Lake Comic Con Twitter feed, which has more than 30,000 followers to comment on the dispute and accuse SDCC of fraud.
I mean, 30,000 Twitter followers is nothing to sneeze at, but... uh... let's take a look at SDCC's Twitter followers, shall we?
Now, I'm no math genius, but 1.55 million followers seems like... a wee bit more than 35,000 or so. But... but... but, SDCC replies: it's not fair that the SLC guys speak out because SDCC has specifically chosen not to comment:
It is also worth noting that in the face of Defendants’ public attacks, SDCC has exercised incredible restraint and has not responded in kind. SDCC believes this dispute should be litigated and decided in this Court. However, if Defendants’ conduct goes unchecked, SDCC will have no choice but to defend itself publically in order to protect its reputation and set the record straight when Defendants disseminate false or misleading information. This type of public exchange regarding ongoing litigation is not productive or conducive to judicial integrity and SDCC hopes it can be avoided.
Incredible restraint. We're so proud of you SDCC. Of course, it didn't stop you from sending a bogus subpoena to us (and who knows how many other media properties), potentially creating massive chilling effects on media companies reporting on your silly dispute. And, really, what exactly is the problem with responding publicly? If you don't want to, don't. If you do, do. But, if you're just concerned about the outcome of the court case, focus on that, not gagging anyone.
Unfortunately... it appears that the court granted the gag order just days before SDCC was set to start. It does limit the request though, noting that the first two parts of the request would be unconstitutional prior restraint. That covers "any false or misleading statements about SDCC or any of its board members" or "any false or misleading statements about the merits of this dispute." What the judge did grant was a gag order on statements that "accuses, suggests, implies or states that SDCC lied and/or committed fraud," "any statement about the genericness of the term comic con," "any statement about whether the term comic con is descriptive" and "any statement about whether SDCC abandoned any trademark rights."
I have trouble seeing how the first two are unconstitutional prior restraint, but the rest are allowed to be gagged -- especially something as mundane as discussing whether comic con is generic or descriptive. But, really, since the court apparently doesn't want anyone discussing that kind of thing, perhaps go ahead and have a discussion in the comments about that very question. And, in case SDCC's high priced lawyers are looking at this yet again, I'll remind you once again that we have no relationship of any kind with the organizers of the Salt Lake City event. We just don't like big bullies silencing people or filing questionable lawsuits.