I’ve blogged here and here about the pending trademark infringement case brought by SDCC, the registered owners of the San Diego Comic-Con mark, against the producers of Salt Lake Comic Con. The Utah group had launched an aggressive social media campaign to draw moral and financial support from fans and organizers of other Comic Cons around the country. The plaintiff persuaded the trial judge, Anthony Battaglia, to issue a gag order to halt against this campaign on the ground that the extensive posts would taint the San Diego jury pool.

The Utahans appealed to the Ninth Circuit, which ruled in an order issued on October 26 that the gag order was unconstitutional. The court noted that prior restraints on speech are highly disfavored except in the most extreme circumstances, such as a clear and present danger to safety or a serious and imminent threat to SDCC’s interest in a fair trial. The defendants’ social media campaign did not, the court held, rise to this level. The court compared the defendant’s Twitter following of 35,000 against the jury pool of nearly 2 million and concluded that the plaintiff would certainly be able to find 12 unbiased jurors out of that large group. Moreover, Judge Battaglia should have recognized that less restrictive and routine procedures such as voir dire, jury sequestration and jury instructions would be sufficient to protect SDCC’s rights. The court also expressed raised the specter of a slippery slope, in that allowing the order to stand would justify similar orders “in almost any situation where an article is written or a statement is made in a public forum.”

This interesting but collateral issue having been disposed of, the parties can resume their progress toward what will presumably be a well-publicized trial.

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