in Re Dan Farr Productions v. United States District Court for the Southern District of California, San Diego

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE D AN FARR P RODUCTIONS ;
BRYAN BRANDENBURG ; DANIEL
FARR .
DAN FARR P RODUCTIONS ; DANIEL
FARR ; BRYAN BRANDENBURG ,
Petitioners,
v.
UNITED S TATES D ISTRICT C OURT FOR
THE S OUTHERN D ISTRICT OF
C ALIFORNIA, S AN D IEGO,
Respondent,
S AN DIEGO C OMIC C ONVENTION,
Real Party in Interest.
No. 17-72682
D.C. No.
3:14-cv-01865-
AJB-JMA
OPINION
Petition For Writ Of Mandamus
Submitted October 10, 2017*
San Francisco, California
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Filed October 26, 2017
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Paul J. Watford, Circuit Judges.
Per Curiam Opinion
SUMMARY**
Mandamus / Trademark / First Amendment
The panel granted a petition for a writ of mandamus in a
trademark action initiated by San Diego Comic Convention
against the producers of the Salt Lake Comic Con over the
use of the mark “comic-con” or “comic con.”
The district court entered “suppression” orders
prohibiting petitioners, the producers of Salt Lake Comic
Con, from expressing their views on the pending litigation
and from republishing public documents over social media
platforms. The district court also entered a “disclaimer”
order requiring petitioners to prominently post on their social
media outlets its order prohibiting comments about the
litigation on social media.
The panel held that the court-ordered prior restraints on
petitioners’ speech violated the First Amendment. The panel
concluded that the orders prohibited speech that posed
neither a clear and present danger nor a serious and imminent
threat to SDCC’s interest in a fair trial on the trademark
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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IN RE D AN FARR P RODUCTIONS 3
claims. The panel also concluded that well-established
doctrines on jury selection and the court’s inherent
management powers provided an alternative, less restrictive,
means of ensuring a fair trial.
The panel granted the mandamus petition and ordered
that the district court vacate the “suppression” and
“disclaimer” orders.
COUNSEL
L. Rex Sears and Michael I. Katz, Maschoff Brennan PLLC,
Irvine, California, for Petitioners.
Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California; Michelle A. Herrera, Peter K. Hahn,
and Callie R. Bjurstrom, Pillsbury Winthrop Shaw Pittman
LLP, San Diego, California; for Real Party in Interest.
OPINION
PER CURIAM:
This petition for a writ of mandamus arises in the context
of a hotly contested trademark action initiated by San Diego
Comic Convention (“SDCC”) against the producers of the
Salt Lake Comic Con—Dan Farr Productions, Daniel Farr,
and Bryan Brandenburg (“Petitioners”)—over the use of the
mark “comic-con” or “comic con.” The case has drawn
nationwide attention and discussion on traditional and social
media alike, in part because “comic cons” have been held in
hundreds of venues across the United States. Because
defendants actively participated in the public discussions

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over the internet, on various websites and through social
media platforms, including Twitter feeds and Facebook
postings, SDCC successfully moved for a sweeping set of
“suppression orders” prohibiting Petitioners from expressing
their views on the pending litigation and from republishing
public documents over social media platforms. Instead, the
court ordered Petitioners to prominently post on their social
media outlets its order prohibiting comments about the
litigation on social media, dubbing this posting a
“disclaimer.” Petitioners assert that the court-ordered prior
restraints on their speech violate the First Amendment. We
agree, and order that the district court vacate the
“suppression” and “disclaimer” orders.
I
BACKGROUND
SDCC is a non-profit corporation dedicated to the
appreciation of comics and other popular arts through
events, including its “Comic-Con convention” in San Diego,
California. Petitioners produce Salt Lake Comic Con, which
is a comic and popular arts convention in Salt Lake City,
Utah. In 2014, SDCC filed this federal trademark action
against Petitioners, alleging that their use of the term “Comic
Con” infringes on SDCC’s “COMIC-CON” family of
service marks and constitutes false designation of origin
under the Lanham Act. Petitioners filed an answer and
counterclaims against SDCC, in which they allege that
SDCC has abandoned the trademarks asserted against them
and that the trademarks are generic and descriptive. The
district court denied Petitioners’ subsequent motion to
amend their defenses and counterclaims to allege that SDCC
procured its trademark registrations by fraud. Trial is
scheduled to begin on November 28, 2017.

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IN RE D AN FARR P RODUCTIONS 5
Throughout the litigation, Petitioners have posted on
their websites and social media platforms various news
articles on the case, documents that are publicly available on
the district court docket, and their own opinions on the
merits of the case and SDCC’s conduct. Petitioners assert
that they are seeking moral and material support from comic
fans everywhere who also use the term “comic con,” and that
the target audience of their speech is “people outside the
venue, where the litigation’s effects will be most felt.”1
On July 6, 2017, SDCC moved the district court for a
“protective order” to prohibit Petitioners from making public
statements prior to and during trial on certain topics relevant
to the merits of the case. SDCC argued that Petitioners’
objective is to “taint[] the jury pool” and “win this case in
the court of public opinion.” In support of its motion, SDCC
submitted evidence of Petitioners’ numerous social media
posts that express their opinions on the merits of the case and
user responses thereto; two of Petitioners’ press releases, one
of which “boast[s] they have secured more than 200,000
media articles reporting on the case” and “claim[s] the
majority are overwhelmingly favorable to [Petitioners’]
case”; pages from Petitioners’ website with links to news
articles on the case and documents filed in the district court;
and one 2014 online magazine article that quoted Petitioner
Brandenburg.
The district court granted the motion in part, concluding
that Petitioners’ comments, posts, and actions were
threatening SDCC’s constitutional right to a fair trial. The
1 As the district court noted, “comic cons are held in nearly every
state of the United States” and “over 100 competitors us[e] the
unhyphenated form of Plaintiff’s trademark.”

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order prohibits Petitioners from commenting on “topics that
relate to”:
(3) 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);
(4) Any statement about the genericness of
the term comic con (other than in documents
to be filed with the Court);
(5) Any statement about whether the term
comic con is descriptive (other than in
documents to be filed with the Court);
(6) Any statement about whether SDCC
abandoned any trademark rights (other than
in documents to be filed with the Court).
The order also states that if Petitioners “post, share, publish,
or link public documents that relate to this case . . . they are
ORDERED to publicize the documents in full or share a link
to the full document,” and may not enhance postings with
“any comments, opinions, editorials or conclusions that
relate to the foregoing statements that have been deemed
suppressed.” Finally, the order requires Petitioners to
prominently post a disclaimer describing its requirements on
their “website, social media site, and any print or broadcast
advertisement or press release that makes reference to San
Diego Comic Con or this dispute.” The mandated disclaimer
is to state that the district 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

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IN RE D AN FARR P RODUCTIONS 7
of the status of the proceedings or the evidence presented
will be made on social media.”
SDCC then requested contempt sanctions for
Petitioners’ alleged violation of the order. The district court
found Petitioners were not in contempt of court, but
nevertheless entered a sanctions order that further restricted
Petitioners’ speech by prohibiting “all references to the
pending litigation, except the disclaimer ordered by the
Court, on [Petitioners’] websites and social media.” Further,
the district court prohibited Petitioners from re-publishing
any publicly available documents about the case, including
documents publicly filed in the district court. See September
21, 2017 Hearing Transcript at 108:19–21 (“[N]ow I’m
basically saying you post no documents about the issues in
the caseno comment, no postings.”). The district court
also ordered Petitioners to pay all costs and fees associated
with the contempt motion.
II
The orders at issue are unconstitutional prior restraints
on speech.2 They prohibit speech that poses neither a clear
and present danger nor a serious and imminent threat to
SDCC’s interest in a fair trial. The well-established
doctrines on jury selection and the court’s inherent
management powers provide an alternative, less restrictive,
means of ensuring a fair trial.3 Levine v. U.S. Dist. Court,
2 There is no dispute that the district court’s orders are prior
restraints on speech, as the district court itself acknowledges. There is a
heavy presumption against prior restraints on speech, and they are
subject to the strict scrutiny standard of review.
3 Contrary to SDCC’s argument, Levine’s recognition that a lower
standard applies to prior restraints of attorneys participating in a case,

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8 IN RE D AN FARR P RODUCTIONS
764 F.2d 590, 595 (9th Cir. 1985); see also Org. for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971).
A
Petitioners’ speech does not constitute a serious and
imminent threat to SDCC’s right to a fair trial. A prior
restraint to ensure a fair trial is permissible “only if its
absence would prevent securing twelve jurors who could,
with proper judicial protection, render a verdict based only
on the evidence admitted during trial.” Hunt v. Nat’l Broad.
Co., 872 F.2d 289, 295 (9th Cir. 1989) (citing Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 569 (1976)).
The district court found that standard was met because
of the reach of the internet. It found that Petitioners through
their “range of online networks would reach an extensive
amount of people” because “Brandenburg’s Twitter feed has
more than 5,200 followers, the Salt Lake Comic Con Twitter
feed has more than 30,000 followers, there have been more
than 200,000 media articles reporting on the instant case, and
in 2014 Salt Lake Comic Con had more than 120,000
attendees.” It concluded that the jury “venire is being
influenced through social media dialogue” in which
Petitioners express “their opinions on the merits of this
case,” giving nine examples of Facebook comments
responding to Brandenburg’s posts that expressed support
for Petitioners’ litigation position.
However, there is no causal link between the numbers of
social media participants and the district court’s conclusion
who are officers of the court subject to fiduciary and ethical obligations,
does not apply to non-attorney participants.

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IN RE D AN FARR P RODUCTIONS 9
that Petitioners’ speech will preclude the seating of an
impartial jury. The district court draws prospective jurors
from a list of approximately 1.75 million registered voters in
San Diego and Imperial Counties.4 Simply stated, there is
no evidence connecting the scope of Petitioners’ speech with
the relevant jury pool. SDCC has presented no evidence as
to how many, if any, of the approximately 35,200 Twitter
followers are registered voters in San Diego and Imperial
Counties and how many, if any, of the 120,000 attendees of
the 2014 Salt Lake Comic Con in Utah are even possibly
members of the current San Diego-area jury pool. Even
were we to hypothetically and implausibly assume that each
Twitter follower and 2014 Salt Lake Comic Con attendee is
a registered voter in San Diego and Imperial Counties (and
that there is no overlap), that group would constitute only
approximately 8.9 percent of the relevant jury pool, which is
insufficient to demonstrate that twelve unbiased jurors could
not be found absent the restraining orders. See Hunt,
872 F.2d at 295 (where pre-trial broadcast would likely
reach slightly more than 20 percent of all adults in the
relevant area, “there remain[ed] an extremely large pool of
untainted potential jurors from which to draw twelve”);
Columbia Broad. Sys. v. U.S. Dist. Court, 729 F.2d 1174,
1182 (9th Cir. 1984) (“CBS”) (pretrial broadcast of
government surveillance tapes “extremely unlikely” to
produce “community-wide prejudice” in a venue of twelve
million people). As for the “200,000 media articles”
4 See U NITED S TATES D ISTRICT COURT, SOUTHERN D ISTRICT OF
C ALIFORNIA, https://www.casd.uscourts.gov/Jurors/SitePages/Home.as
px (last visited Oct. 19, 2017); CALIFORNIA SECRETARY OF STATE ,
REPORT OF REGISTRATION AS OF FEBRUARY 10, 2017, REGISTRATION
BY COUNTY, http://elections.cdn.sos.ca.gov/ror/ror-pages/ror-odd-year-
2017/county.pdf (last visited Oct. 19, 2017).

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highlighted by the district court, they were predominantly a
single article written in 2014 by the Associated Press and
printed in approximately 160,000 papers world-wide. There
is no evidence of the extent to which the jury pool was
exposed to such coverage, which apparently did not even
reach the district court judge.5 There is also no evidence that
any of the Facebook users who expressed support for
Petitioners in response to Brandenburg’s postings about this
case are part of the jury pool, and in any event the record
reflects that the total number of such users is insignificant.
The district court’s analysis also disregarded two critical
factors for evaluating the likely effect of pretrial publicity on
the jury pool: whether the subject matter of the case is lurid
or highly inflammatory, and whether the community from
which the jury will be drawn is small and rural, or large,
populous, metropolitan, and heterogeneous. See Hunt,
872 F.2d at 294–95 (citing CBS, 729 F.2d at 1180) (the court
must examine the capacity of pretrial publicity “to inflame
and prejudice the entire community”). Both demonstrate
that this case is simply not one of the rare instances in which
pretrial publicity mandates prior restraints.
This civil trademark infringement action involves issues
that are far more banal than the subject matters of the
criminal trials in which pretrial publicity has presented
serious constitutional problems. See, e.g., CBS, 729 F.2d at
1181 (collecting cases that involved armed robbery,
kidnapping, bludgeoning, and murder, and concluding
prosecution of prominent defendant for conspiracy to import
cocaine was not lurid or highly inflammatory); Sheppard v.
5 The district court noted at one hearing about the extensive nature
of the postings, “Because for some reason, I must live under a rock. I
didn’t see any [of] this stuff.”

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Maxwell, 384 U.S. 333, 356, 363 (1966) (holding that media
coverage contributed to due process violation in murder trial
that “intrigue[d] and captivate[d] the public fancy to a degree
perhaps unparalleled in recent annals”). And, as we have
long held, pretrial publicity is less likely to threaten the
fairness of trial in a large metropolitan area. See Hunt,
872 F.2d at 295 (concluding that although double murder
trial “may involve lurid or inflammatory subject matter, San
Mateo County is the type of populous, heterogeneous
metropolitan area where prejudicial publicity is less likely to
endanger the defendant’s right to a fair trial”); CBS, 729 F.2d
at 1181–82; Associated Press v. U.S. Dist. Court, 705 F.2d
1143, 1146 (9th Cir. 1983); see also Skilling v. United States,
561 U.S. 358, 382 (2010) (“Given this large, diverse pool of
potential jurors, the suggestion that 12 impartial individuals
could not be empaneled is hard to sustain.”).
The district court also erroneously focused on
Petitioners’ effective use of their First Amendment rights to
mobilize sentiment within the community of “Comic
Fandom” worldwide. That a handful of passionate
supporters engaged with Brandenburg on his Facebook page
and the indisputable fact that “the ‘Comic Fandom’
community is logically inclusive of San Diego comic fans”
does not prove that the jury pool—all adult, registered voters
in the San Diego and Imperial Counties—was reached, let
alone irreparably tainted. Without such an evidentiary
demonstration, the prior restraint orders cannot stand.
B
A prior restraint is not the least restrictive means of
ensuring a fair trial here. See Levine, 764 F.2d at 595. We
have previously approved “voir dire, jury instructions, delay,
change of venue or jury sequestration” as appropriate

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alternatives preferable to censorship. Hunt, 872 F.2d at 295–
96; see also Nebraska Press, 427 U.S. at 564.
The district court considered and rejected voir dire, jury
instructions, and sequestration. The court found voir dire
insufficient because it would entail excluding from the jury
all citizens who have read or heard about the case and who
keep abreast of current events.6 But voir dire means nothing
of the sort—rather, it screens out “those with fixed opinions
as to guilt or innocence.” Nebraska Press, 427 U.S. at 564
(emphasis added). Similarly, the district court found jury
instructions “inadequate” because “the Court cannot run the
risk of thinking the jury will do as the Court says.” But we
and the Supreme Court have repeatedly recognized a
rebuttable presumption that juries follow jury instructions.
See, e.g., Harris v. Rivera, 454 U.S. 339, 346 (1981) (per
curiam); Trillo v. Biter, 769 F.3d 995, 1000 (9th Cir. 2014).
The district court failed to identify any reason why that
presumption is inappropriate in this case.7 And the court
6 We note that the district court purported to rely on our analysis of
voir dire in Levine but actually cited a quote from the district court’s
opinion. Our opinion clearly recognized that “searching voir dire” could
eliminate bias caused by pre-trial publicity. Levine, 764 F.2d at 600.
7 For the same reason, SDCC’s argument that, regardless of whether
an impartial jury could be selected, the restraining orders are necessary
based on “the risk jurors would find improper material online” during
trial is unavailing. Our recognition in Levine that “[e]ven if an impartial
jury could be selected, intense prejudicial publicity during and
immediately before trial could allow the jury to be swayed by
extrajudicial influences,” was in the context of a “circus-like
environment that surrounds highly publicized trials,” a context far
removed from the situation here. 764 F.2d at 598 (citing Sheppard,
384 U.S. at 342–49 (describing circus-like environment surrounding
sensational murder trial)).

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found sequestration “would not be appropriate as jurors
should not have to endure the burden of [Petitioners’]
transgressions.” But juror inconvenience alone cannot
outweigh Petitioners’ exercise of fundamental First
Amendment rights.8
In addition to improperly analyzing each alternative, we
note that the district court’s logic disqualified alternatives
categorically and would justify imposition of prior restraints
in almost any situation where an article is written or a
statement is made in a public forum. Cf. Nebraska Press,
427 U.S. at 554 (“[E]ven pervasive, adverse publicity does
not inevitably lead to an unfair trial.”). In doing so, the
district court rejected binding precedent that voir dire,
sequestration, and jury instructions can be alternatives to
prior restraints. See CBS, 729 F.2d at 1182–83. This record
does not demonstrate that those alternatives are unavailable
or inappropriate, and any imposition of a prior restraint must
be based on case-specific justifications for why less extreme
measures are not viable alternatives.
III
Unlike other cases involving attorneys or the press,
grisly crimes or national security, the district court’s orders
8 To the extent the district court or SDCC believes Petitioners’
speech was transgressive rather than just effective, persuasive, or
opinionated—and there is no evidence in the record before us supporting
such a finding—the proper remedy is almost certainly retrospective
damages, not a broader prior restraint. CBS, Inc. v. Davis, 510 U.S.
1315, 1318 (1994) (“Subsequent civil or criminal proceedings, rather
than prior restraints, ordinarily are the appropriate sanction for calculated
defamation or other misdeeds in the First Amendment context.”).
Similarly, to the extent Petitioners posted materials subject to a court
order sealing them, judicial sanctions might be warranted.

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silence one side of a vigorously litigated, run-of-the-mill
civil trademark proceeding. The orders ban Petitioners from
electronically posting, transmitting, or referencing publicly
available documents, in their entirety, even if posted without
commentary. And the district court went beyond silencing
Petitioners: it mandated that they prominently and
ubiquitously articulate a “disclaimer” that, at the very least,
incriminates and disparages their previously expressed
opinions.
The orders are simultaneously unmoored from the
interest they purport to protect—the integrity of the San
Diego-area jury pool. For example, nothing prohibits
Petitioners from contacting and collaborating with San
Diego-area media to create newspaper articles, magazine
features, or television coverage of the case, and Petitioners
would not even have to include the “disclaimer,” which is
explicitly limited to Petitioners’ online activities. Nothing
prevents Petitioners from mailing all San Diego-area
residents annotated copies of the publicly available filings.
And nothing prevents Petitioners from holding press
conferences in San Diego at which they discuss the case
(while avoiding the specific prohibitions in the first
protective order).
Prior restraints “are the most serious and the least
tolerable infringement on First Amendment rights.”
Nebraska Press, 427 U.S. at 559. The district court clearly
erred in determining that Petitioners’ speech presents a
serious and imminent threat to a fair trial and that less
restrictive alternatives to a prior restraint on speech were
unavailable. “The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373–74
(1976). Accordingly, we grant the petition for a writ of

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IN RE D AN FARR P RODUCTIONS 15
mandamus.9 The district court is directed to vacate its order
of July 18, 2017, as modified on July 21, 2017 and August
24, 2017; and its order of September 25, 2017.
PETITION GRANTED.
9 Mandamus jurisdiction is proper under the All Writs Act,
28 U.S.C. § 1651(a), in instances where district courts clearly err in
imposing prior restraints. CBS, 729 F.2d at 1177–78. The first three
factors articulated in Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55
(9th Cir. 1977), weigh in favor of granting the writ (as we did in Perry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010), we assume
without deciding that pre-trial restraining orders on speech are not
reviewable under the collateral order doctrine); the second two factors
are inapplicable.

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