FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DAN FARR PRODUCTIONS; 

BRYAN BRANDENBURG; DANIEL 

FARR.

______________________________ 

DAN FARR PRODUCTIONS; DANIEL 

FARR; BRYAN BRANDENBURG, 

Petitioners, 

 v. 

UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA, SAN DIEGO, 

Respondent, 

SAN DIEGO COMIC CONVENTION, 

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

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).

FILED

OCT 26 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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 “comiccon” 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
3 

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,” 
4 

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.”
5 

(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
6 

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. 
7 

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. 
8 

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).
9 

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.”
10 

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 
11 

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 
12 

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 pretrial 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 
13 

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 casespecific 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, runof-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.
14 

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 
15 

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. 
16 

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.