                               FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                      OCT 26 2017
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

In re: DAN FARR PRODUCTIONS;                   No.   17-72682
BRYAN BRANDENBURG; DANIEL
FARR.                                          D.C. No.
______________________________                 3:14-cv-01865-AJB-JMA

DAN FARR PRODUCTIONS; DANIEL
FARR; BRYAN BRANDENBURG,                       OPINION

                Petitioners,

 v.

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, SAN DIEGO,

                Respondent,

SAN DIEGO COMIC CONVENTION,

                Real Party in Interest.

                          Petition For Writ Of Mandamus

                           Submitted October 10, 2017 *
                            San Francisco, California

Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
PER CURIAM:


      *
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      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 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


                                           2
                                     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.

        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,”




                                           3
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 order prohibits Petitioners from commenting on “topics that relate to”:




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.”

                                            4
      (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 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

                                           5
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.




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, who are officers of the court
subject to fiduciary and ethical obligations, does not apply to non-attorney
participants.

                                            6
Court, 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.




                                            7
      However, there is no causal link between the numbers of social media

participants and the district court’s conclusion 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



4
 See UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA,
https://www.casd.uscourts.gov/Jurors/SitePages/Home.aspx (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).

                                           8
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” 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


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.”

                                           9
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. 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


                                           10
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

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




                                          11
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 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


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)).
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

                                         12
      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 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


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.

                                           13
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


                                            14
of 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.

                                         15
                                  COUNSEL

Michael I. Katz and L. Rex Sears, Maschoff Brennan PLLC, Irvine, California, for
Petitioners.

Callie R. Bjurstrom, Peter K. Hahn, and Michelle A. Herrera, Pillsbury Winthrop
Shaw Pittman LLP, San Diego, California; Kevin M. Fong, Pillsbury Winthrop
Shaw Pittman LLP, San Francisco, California, for Real Party in Interest.




                                       16
