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Appeal No. ___________

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DAN FARR PRODUCTIONS, DANIEL FARR,
and BRYAN BRANDENBURG, Defendants–Petitioners,
v.
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF CALIFORNIA, Respondent,
SAN DIEGO COMIC CONVENTION, Plaintiff–Real Party in Interest.
From the United States District Court for the Southern District of California
Case No. 3:14-cv-01865

PETITION FOR WRIT OF MANDAMUS
MICHAEL I. KATZ
mkatz@mabr.com
L. REX SEARS
rsears@mabr.com
MASCHOFF BRENNAN PLLC
20 Pacifica, Suite 1130
Irvine, California 92618
Telephone: (435) 252-1360
Attorneys for Defendants–Petitioners

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure
and Ninth Circuit Rule 21-3, petitioner Dan Farr Productions, a Utah
limited liability company, discloses that it has no parent company and that
no publicly held company owns 10% or more of Dan Farr Productions.
DATED: September 27, 2017

/s/ L. Rex Sears
MICHAEL I. KATZ
mkatz@mabr.com
L. REX SEARS
rsears@mabr.com
MASCHOFF BRENNAN PLLC
20 Pacifica, Suite 1130
Irvine, California 92618
Telephone: (435) 252-1360
Attorneys for Defendants–Petitioners

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ...................................................... ii
I.

INTRODUCTION .........................................................................................1

II.

WRIT RELIEF AND STANDARD OF REVIEW ......................................4

III.

BACKGROUND............................................................................................7
A. Statement of the Case ...........................................................................7
B.

The Suppression Orders.......................................................................8
1.

General Scope of the Orders ........................................................9

2.

Judicial Records and Other Public Documents ......................10

3.

Mandatory Disclaimer ................................................................11

4.

Attorney Fees ...............................................................................14

C. Bases for the Suppression Orders .....................................................14
1.

Second Suppression Order ........................................................14

2.

Third Suppression Order ...........................................................16

IV.

ISSUES PRESENTED AND RELIEF SOUGHT ......................................18

V.

ARGUMENT ...............................................................................................19
A. The Second Suppression Order Should Be Vacated (1) for
Vagueness, (2) Because No Serious and Imminent Threat Was
Shown, and (3) as Not Narrowly Drawn ........................................19
1.

The Second Suppression Order Is Internally Inconsistent,
Hence Unconstitutionally Vague ..............................................19

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2.

No Serious and Imminent Threat Justified the Second
Suppression Order ......................................................................20
a.

The Supposedly “Extensive” Reach of Petitioners’
“Online Networks” Is Belied by San Diego’s Populous
and Metropolitan Character...............................................23
i.

The Venue Is Large, Populous, and
Metropolitan .................................................................24

ii.

The Metrics Relied on by the District Court
Are Not Relevant .........................................................25

iii. The District Court Disregarded Alternatives and
Misapprehended the Relevant Inquiry ....................28

3.
B.

b.

The Evidence the District Court Cited Does Not
Show that the Venire Is Being Influenced .......................29

c.

The Nearness of Trial Cannot, without More, Justify
a Prior Restraint ...................................................................31

The Second Suppression Order Is Not Narrowly Drawn .....32

The Third Suppression Order Should Be Vacated .........................33
1.

Allowing the Legacy Litigation Page to
“Continue to Persist” Did Not Violate the Second
Suppression Order ......................................................................33

2.

The Third Suppression Order Amounts to a Criminal
Contempt Sanction Imposed Without Due Process...............35

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C. Even if Either Suppression Order Were Sustained, Petitioners
Should Not Be (1) Forbidden to Republish or Quote from
Public Documents (Including Judicial Records) or
(2) Required to Post a Disclaimer .....................................................38

VI.

1.

Republication of Already Public Documents Should
Not Be Proscribed........................................................................39

2.

The Counterproductive Disclaimer Mandate Should Be
Undone..........................................................................................40

CONCLUSION ............................................................................................42

CERTIFICATE OF COMPLIANCE ....................................................................43
STATEMENT OF RELATED CASES .................................................................44
CERTIFICATE OF SERVICE ...............................................................................45

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TABLE OF AUTHORITIES
Page(s)
Cases
Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004) ..................................................................... 1, 41
Bauman v. United States District Court,
557 F.2d 650 (9th Cir.1977) ............................................................................ 4, 5
Bose Corp. v. Consumers Union,
466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) .................................... 6
Bridges v. California,
314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941) ......................................31, 32
CBS v. United States District Court,
729 F.2d 1174 (9th Cir. 1983) .............................................................4, 5, 24, 42
Chase v. Robson,
435 F.2d 1059 (7th Cir. 1970) ........................................................................... 15
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975) ..........................1, 39, 40
Craig v. Harney,
331 U.S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947) .................................passim
Daily Herald Co. v. Munro,
838 F.2d 380 (9th Cir. 1988) ............................................................................... 6
F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc.,
244 F.3d 1128 (9th Cir. 2001) ........................................................................... 36
Gentile v. State Bar of Nevada,
501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) .............................. 22
Gilbert v. National Enquirer, Inc.,
51 Cal. Rptr. 2d 91 (Ct. App. 1996) ................................................................ 39

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Hunt v. NBC,
872 F.2d 289 (9th Cir. 1989) ......................................................................passim
Levine v. United States District Court,
764 F.2d 590 (9th Cir. 1985) ......................................................................passim
Nebraska Press Association v. Stuart,
427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) .............................passim
Newton v. NBC,
930 F.2d 662 (9th Cir. 1990) ............................................................................... 6
Organization for a Better Austin v. Keefe,
402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971) ........................................ 20
People v. Harris,
623 P.2d 240 (Cal. 1981) ................................................................................... 25
Rodríguez-Vázquez v. Solivan,
844 F.3d 351 (1st Cir. 2016) ............................................................................. 34
Sacramento Bee v. United States District Court,
656 F.2d 477 (9th Cir. 1981) ........................................................................... 4, 5
Skilling v. United States,
561 U.S. 358, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010) ..........................24, 29
Southeast Promotions, Ltd. v. Conrad,
420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) .................................... 21
Whittaker Corp. v. Execuair Corp.,
953 F.2d 510 (9th Cir. 1992) .................................................................36, 37, 38
Rules
Federal Rule of Criminal Procedure 42.............................................................. 38
Other Authorities
Restatement (Second) of Torts, § 587 ................................................................. 39

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I.

INTRODUCTION

Petitioners Dan Farr Productions (“DFP”), Daniel Farr, and Bryan
Brandenburg, defendants below, produce Salt Lake Comic Con (“SLCC”),
in Utah. They seek a writ directing the district court to vacate a series of
increasingly repressive prior restraint orders that:
(1)

indiscriminately prohibit “all references to the pending
litigation,”1 without any basis for finding “a serious and
imminent threat to the administration of justice”;2

(2)

deny them their right to truthfully report “official court records
open to public inspection”;3 and

(3)

violate their right “to remain silent”4 by forcing them to post a
“disclaimer” that serves no purpose other than shaming them.

Plaintiff below is San Diego Comic Convention (“SDCC”), which
produces its own comic con that it claims has become “the focal point for

1

See ECF Doc. 264 at 2:10.

2

See Craig v. Harney, 331 U.S. 367, 373, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947).

See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495, 95 S. Ct. 1029, 43
L. Ed. 2d 328 (1975).
3

4

See Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 n. 4 (10th Cir. 2004).
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the world of comics conventions.” SDCC was not the first to produce a
comic con; and for its first quarter century, SDCC was content to
distinguish its event from others by calling it the “San Diego Comic-Con.”
But in 1995 SDCC began, in ineffective fits and starts, trying to corner the
market on terminology by claiming exclusive rights in the standalone,
generic term “comic con” (or “comic-con”). In 2014, SDCC brought its first
suit for infringement of its alleged rights in the standalone “comic con,”
against petitioners.
Comic fans outside San Diego have been skeptical of SDCC’s effort to
anoint itself the one and only comic con. The district court’s recent order
denying summary judgment observes:
“[C]omic cons” are held in nearly every state of the United
States including New York Comic Con, Amazing Arizona
Comic Con, Emerald City Comic Con, and Tampa Bay
Comic Con. … [O]ver 100 competitors us[e] the
unhyphenated form of Plaintiff’s trademark …5
Thus in more than a hundred other places, fans and organizers are hoping
petitioners vindicate everyone’s right to continue participating in
eponymous cons nearer their homes by obtaining a judgment that “comic

5

See ECF Doc. 253 at 19:20-23.
2

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con” is generic. Petitioners have appreciated the moral support; and they
had hoped to translate it into material support—including funding,
strategic discussions, and live witness appearances—for the expensive trial
that appears inevitable now that summary judgment has been denied. But
the district court’s suppression6 orders will prevent them from doing so.
The natural and intended targets and audience of petitioners’ speech
are people outside the venue, where the litigation’s effects will be felt most:
win or lose, SDCC will still have the right to call its event a comic con; at
issue is the right of people outside the venue to call their local comic con a
comic con. No showing was made that the jury pool within the venue has
been or would be affected; indeed, the most recent suppression order is not
even nominally premised on any supposed threat to the venire but instead
was imposed as a sanction for petitioners’ failure to comply with a
provision that the district court was asked (by SDCC) to include in an
earlier suppression order but did not. Individually and collectively, the

Although the more familiar terminology for a prior restraint is “gag
order,” the district court is “not fond of the gag order term” and prefers
“suppression order.” See transcript of “Motion/Status Hearing” (“July 14
Transcript,” excerpted as Exhibit F hereto) at 6:3-5. Petitioners defer to the
district court’s preference.
6

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suppression orders are a constitutional affront that should not be allowed
to stand.
II.

WRIT RELIEF AND STANDARD OF REVIEW

This Court assesses the “availability of writ relief” by reference to the
“Bauman factors”7:
(1) The party seeking the writ has no other adequate
means, such as a direct appeal, to attain the relief he or she
desires. (2) The petitioner will be damaged or prejudiced
in a way not correctable on appeal. … (3) The district
court’s order is clearly erroneous as a matter of law. (4) The
district court’s order is an oft-repeated error, or manifests
a persistent disregard of the federal rules. (5) The district
court’s order raises new and important problems, or issues
of law of first impression.8
“[R]arely if ever will a case arise where all the guidelines point in the same
direction or even where each guideline is relevant or applicable.” 9 Instead,

7

See CBS v. United States District Court, 729 F.2d 1174, 1177 (9th Cir. 1983).

Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977)
(citations omitted).
8

Bauman, 557 F.2d at 655; see also Sacramento Bee v. United States District
Court, 656 F.2d 477, 480-81 (9th Cir. 1981) (“Writs of mandate are …guided
by these factors only in extraordinary circumstances, guided by these
factors, all of which need not be present”).
9

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“[t]he considerations are cumulative and proper disposition will often
require a balancing of conflicting indicators.”10
In suppression order cases, “[t]he first Bauman factor … is satisfied
because … direct appeal is unavailable” and “[t]he second Bauman factor …
is also satisfied” because “the damage resulting from a prior restraint—
even a prior restraint of the shortest duration—is extraordinarily grave.”11
If the third factor is also satisfied—i.e., if “the district court’s decision to
restrain [petitioners] was clear error as a matter of law”—then that is
enough: “the Bauman analysis favors an exercise of … mandamus
jurisdiction.”12
In determining whether a district court that “holds a restriction on
speech constitutional” has erred, this Court “conduct[s] an independent, de

10

Bauman, 557 F.2d at 655.

11

See CBS, 729 F.2d at 1177.

See CBS, 729 F.2d at 1178; see also Levine v. United States District Court, 764
F.2d 590, 594 (9th Cir. 1985) (“The first two Bauman guidelines support an
exercise of our mandamus jurisdiction. [Citations.] The fourth Bauman
guideline does not apply … The fifth Bauman guideline is also inapplicable
… Accordingly, the third Bauman guideline is critical.”); Sacramento Bee, 656
F.2d at 481 (“The key factor is whether the … orders are so clearly
erroneous as a matter of law that the Bee’s right to issuance of the writ is
clear and indisputable.”).
12

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novo examination of the facts”13 in order to “ensure the appropriate
appellate protection of First Amendment values.”14 “[T]he rule of
independent review assigns to judges a constitutional responsibility that
cannot be delegated to the trier of fact, whether the factfinding function be
performed in the particular case by a jury or by a trial judge.”15
There is a “credibility exception” to that de novo review, which
leaves some room for deference to a district court’s “findings of fact that
turn on credibility determinations” but not to “a factfinder’s findings [that]
rely on its weighing of evidence and drawing of inferences.”16 Here, this
Court’s review should be de novo because there are no predicate credibility
determinations, only findings that rely on the district court’s “drawing of
inferences.”

13

Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir. 1988).

14

See Newton v. NBC, 930 F.2d 662, 670 (9th Cir. 1990).

Bose Corp. v. Consumers Union, 466 U.S. 485, 501, 104 S. Ct. 1949,
80 L. Ed. 2d 502 (1984).
15

16

See Newton, 930 F.2d at 671.
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III.
A.

BACKGROUND

Statement of the Case
SDCC sued petitioners for trademark infringement in 2014.17 The case

lay dormant for about two years while the parties participated in
discussions involving a third-party interested in acquiring SLCC.
Discovery began in earnest late last year.
Shortly after discovery closed, and based in part on documents
produced and deposition testimony obtained late in discovery, petitioners
made a motion18 (which the district court ultimately denied19) for leave to
add a counterclaim to cancel SDCC’s trademark registrations because they
were obtained through a fraudulent declaration of exclusive use. As they
had done with other documents, petitioners posted these materials on

See ECF Doc. 1. Except as otherwise indicated, district court filings are
referenced by their ECF document numbers and cited by their own internal
page and line numbering.
17

18

See ECF Doc. 108.

19

See ECF Doc. 202.
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Facebook and on a page of the SLCC website that had been used to provide
information about the litigation (the “Litigation Page”).20
SDCC alleged that petitioners’ fraud-related filings and internet
postings indirectly disclosed some deposition testimony that was subject to
protective order. Petitioners disagreed that any protected material had
been disclosed but offered to redact the references SDCC complained of.
SDCC, however, demanded that petitioners also stipulate to a far-reaching
gag order. When petitioners refused, SDCC went to the district court.
B.

The Suppression Orders
Ultimately, SDCC obtained three suppression orders: a sweeping but

short-lived oral order;21 a second order that broadly suppresses comment
on four major topics; and a more comprehensive subject-matter ban on
internet speech. The first was superseded by a less objectionable, “more

The Litigation Page was taken down last week, as ordered. It was
formerly accessible at: ≪http://saltlakecomiccon.com/san-diego-comiccon-intl-v-salt-lake-comic-con/≫.
20

See Transcript of “Telephonic Status Conference” (“June 28 Transcript,”
excerpted as Exhibit E hereto) at 27:1-13. Hearing transcripts are cited by
their internal page and line numbering.
21

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narrowly drawn” written order.22 This petition seeks relief from the second
and third.
1.

General Scope of the Orders

The second suppression order “prohibits Defendants from making
comments”—except “in documents to be filed with the [district] Court”—
that “relate to”:
Any statement 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 …
Any statement about whether SDCC abandoned any
trademark rights …23
More succinctly: the second suppression order prohibits petitioners from
talking about fraud, genericness, descriptiveness, or abandonment—except
in district court filings. Under a literal reading, the instant petition is a

22

See ECF Doc. 119 at 2:22.

“Order: (1) Granting in Part and Denying in Part Plaintiff’s Motion for a
Protective Order; …” (“Order 147,” ECF Doc. 147, reproduced as Exhibit A
hereto) at 2:6-3:5 (parenthetical numbering omitted).
23

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violation of that order because it includes statements about genericness and
fraud, and is not a district court filing.
The third suppression order is both broader and narrower than the
second. Regarding subject matter, the third order is broader because it
prohibits “all references to the pending litigation,”24 not just references to
the four topics suppressed by the second order. But instead of regulating
speech in all contexts, like the second order, the third is limited to speech
that occurs “on … websites and social media.”25
2.

Judicial Records and Other Public Documents

Regarding public documents, including judicial records, the second
suppression order provides: “If Defendants … 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.”26

“Amended Order … on Plaintiff’s Motion for … Contempt …” (“Order
264,” ECF Doc. 264, reproduced as Exhibit D hereto) at 2:10 (underlining in
original); see also transcript of “Final Pretrial Conference/Motion Hearing”
(“September 21 Transcript,” excerpted as Exhibit G hereto) at 99:17-18
(“”no further postings … about the case can appear”).
24

25

Order 264 at 2:11.

26

Order 147 at 3:6-9 (boldface in original, italics added).
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Pre-suppression, petitioners’ practice had been to accompany any
quotations with links to complete source documents, which would seem to
be consistent with that. But orally, the district court clarified that
petitioners should only link or publish complete documents, and not quote
or otherwise draw attention to any particular passages:
[Counsel]: … I think I heard … quotations are okay
provided there is a link to the full document …
The Court: No. No. What I said is you can re-publicize it
by printing it in full or linking it to a full copy.27
The third suppression order goes beyond that. As written, the third
order does not mention public documents. But orally, the district court has
now completely suppressed them: “now I’m basically saying you post no
documents about the issues in the case—no comment, no postings.”28
3.

Mandatory Disclaimer

The second suppression order instructs petitioners:
to note on the Salt Lake Comic Con website that the 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

27

July 14 Transcript at 28:16-23.

28

September 21 Transcript at 108:19-21.
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proceedings or the evidence presented will be made on
social media.29
The order requires “[t]his disclaimer … to be placed prominently on the
home page of the Salt Lake Comic Con website [and] social media site.”30
The district court later “clarif[ied] the breadth” of that provision, as
follows:
First … the disclaimer relates to any of the various media
platforms that discuss the instant action … and applies to
all of the Defendants including Defendant Brandenburg.
Second … the disclaimer [should] be displayed in a place
where a consumer would see it once it landed on
Defendants’ website. … [T]he disclaimer should be placed
at the top of the SLCC website page …31
The mandated disclaimer that “no … comments … about the
litigation may be made on social media” diverges from the rest of the
second suppression order in ways reminiscent of the third suppression
order. Thus the disclaimer is not limited to the four topics otherwise
suppressed by the second order (i.e., fraud, genericness, descriptiveness,
and abandonment) but instead reaches “the litigation” generally; and the

29

Order 147 at 3:17-21 (italics added).

30

Order 147 at 3:21-23.

“Order Supplementing the Court’s July 18 and 21, 2017 Orders” (“Order
215,” ECF Doc. 215, reproduced as Exhibit C hereto) at 2:1-10.
31

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disclaimer, unlike the other provisions of the second order, is limited to
social media.32 Either the mandatory disclaimer revises the second order’s
other provisions or the disclaimer that petitioners were ordered to post is
inaccurate.
SDCC never asked the district court to impose this mandate. Instead,
when the district court issued its first suppression order—the one that is no
longer in force or at issue—petitioners’ counsel asked:
If our clients’ website and whatnot just goes totally dark,
people are going to have questions. [¶] Are we permitted
to say we’ve been instructed not to comment on the case …
so people understand?
And the district court responded: “I think that is appropriate.”33 But the
district court’s subsequent written orders transformed that permission into
a mandate.
The third suppression order, as written, preserves the disclaimer
requirement by “except[ing] the disclaimer ordered by the Court” from the

Compare Order 147 at 2:24-27 (“the Court … prohibits Defendants from
making comments on topics that relate to statements three through six
listed above”) with id. at 3:18-19 (“no editorial comments … about the
litigation may be made on social media”).
32

33

June 28 Transcript at 32:20-25.
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instruction “to remove all references to the pending litigation.”34 Orally, the
district court offered petitioners a choice: (1) retain the oppressive mandate
to “prominently” display a disclaimer across all internet platforms; or
(2) “hold their water” and say absolutely nothing about the case, not even
that they are under court order not to comment about the case.35 The
district court has denied to petitioners the option to say either nothing or
that they have been suppressed—as, when, where, and to whom they see
fit.
4.

Attorney Fees

Finally, the third suppression order (but not the second) includes an
attorney fee award.36
C.

Bases for the Suppression Orders
1.

Second Suppression Order

“[B]efore a trial court can limit … first amendment rights … the
record must contain sufficient specific findings by the trial court
establishing … ‘a serious and imminent threat to the administration of

34

See Order 264 at 2:10-11.

35

See September 21 Transcript at 91:5-15, 100:19-21.

36

See Order 264 at 2:1-4.
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justice.’”37 Thus here, a few days after entering its second suppression
order, the district court issued an additional document setting forth the
following findings:
(1)

“through their range of online networks,” petitioners “reach an
extensive amount of people”;

(2)

there is “evidence that demonstrates that the venire is being
influenced through social media dialogue”;

(3)

“trial is set for the end of November”; and

(4)

“as of [July 21, 2017], San Diego Comic Con is currently
occurring, and Salt Lake Comic Con is set to begin in two
months.”38

The district court did not explain why the imminence of the parties’
respective conventions matters. But whatever the reason, that factor has
now dropped out because SDCC’s convention ended on July 23 and
petitioners’ on September 23, 2017.

37

Chase v. Robson, 435 F.2d 1059, 1061 (7th Cir. 1970).

See “Order Granting in Part and Denying in Part Plaintiff’s Motion for a
Protective Order” (“Order 159,” ECF Doc. 159, reproduced as Exhibit B
hereto) at 8:17-18, 6:18, 6:23-7:1, 8:13-16.
38

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As “evidence … that the venire is being influenced through social
media dialogue” (finding 2) the district court quoted nine “Facebook user
responses to Defendant Brandenburg’s Facebook posts.”39 None of those
users were identified as members of the jury pool and all nine posts relate
to fraud; none relate to genericness, descriptiveness, or abandonment—the
other banned topics.
2.

Third Suppression Order

The third suppression order originated in contempt proceedings
based on the second. After the district court announced its intent to issue
the second suppression order, but before entering it on the docket, it
circulated a draft for comment. SDCC asked the district court to add that
petitioners must retroactively “remove and/or modify” the Litigation Page
of the SLCC website; petitioners objected that “plaintiff cited no authority
for the proposition that defendants may now be ordered to retract and
purge postings and statements” they had made before being suppressed;

39

See Order 159 at 7:6–7.
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and the district court entered its order without plaintiff’s proposed
modification.40
Because the district court did not adopt SDCC’s request to order it
purged or taken down, the Litigation Page stayed up, with all the content it
had before petitioners were suppressed. SDCC brought a motion alleging
contempt, focused primarily on supposed failures to comply with the
disclaimer requirement but also alleging that petitioners were in contempt
because they had not purged or taken down the Litigation Page.41 The
district court sidelined SDCC’s disclaimer allegations, before the contempt
motion was fully briefed, by entering a further order “to clarify … its
previous orders”;42 and petitioners promptly complied with that
“clarification.” But the district court agreed that petitioners had violated

See generally Exhibits H-K. The exhibits hereto have been branded with
four-digit numbers that run sequentially through all 11 exhibits. With
reference thereto, see especially Exhibit I at 0064-0065 (SDCC’s proposed
addition), Exhibit J at 0067-0068 (petitioners’ response), Order 147 at 3:21
(order as entered, without SDCC’s proposed addition).
40

41

See ECF Doc. 207.

42

See Order 215 at 1:25.
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Order 147 by not retroactively purging the Litigation Page;43 and “as a
sanction,” the district court entered its third suppression order.44
IV.
1.

ISSUES PRESENTED AND RELIEF SOUGHT

Should the second suppression order be vacated because:

(a) the district court’s finding of a serious and imminent threat to the
administration of justice cannot be sustained; (b) its internal inconsistency
renders it unconstitutionally vague; and/or (c) it is not narrowly drawn?
2.

Should the third suppression order be vacated because:

(a) there was no violation of the second suppression order to sanction
petitioners for; and/or (b) it is not punitive, not coercive—but was imposed
without the due process required for a criminal contempt sanction?
3.

Even if the second and third suppression orders are not vacated

entirely, should (a) the restrictions on republication of judicial records and
other public documents be lifted and (b) the disclaimer requirement be
removed?

43

See September 21 Transcript at 97:24–98:8; Order 264 at 2:27.

44

See September 21 Transcript at 98:25-100:1; Order 264 at 1:24-25.
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V.
A.

ARGUMENT

The Second Suppression Order Should Be Vacated (1) for
Vagueness, (2) Because No Serious and Imminent Threat Was
Shown, and (3) as Not Narrowly Drawn
1.

The Second Suppression Order Is Internally Inconsistent,
Hence Unconstitutionally Vague

Although it suffers from graver defects, the second suppression
order’s most simply stated constitutional infirmity is uncertainty. As
pointed out above, the second suppression order’s disclaimer provision is
at odds with its other terms. According to the disclaimer provision,
petitioners are prohibited from commenting on any aspect of the case—but
the order elsewhere suppresses only four specific topics; and according to
the disclaimer, the prohibition extends only to social media—but the order
elsewhere suppresses comments in any medium or setting (other than
“documents to be filed with the [district] Court”).45
A prior restraint “is unconstitutionally vague if it fails to give clear
guidance regarding the types of speech for which an individual may be

Compare Order 147 at 2:24-27 (“the Court … prohibits Defendants from
making comments on topics that relate to statements three through six
listed above”) with id. at 3:18-19 (“no editorial comments, opinions, or
conclusions about the litigation may be made on social media”).
45

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punished.”46 Because different provisions of the second suppression order
give different and conflicting guidance as to subject matter and media, the
order is unconstitutionally vague and should be vacated.
2.

No Serious and Imminent Threat Justified the Second
Suppression Order

A more grievous and fundamental failing of the second suppression
order is that “a serious and imminent threat to the administration of
justice,”47 the essential predicate for any pretrial suppression order, was
not shown.
Starting with first principles, “[a]ny prior restraint on expression
comes to this Court with a ‘heavy presumption’ against its constitutional
validity”48 because “prior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amendment rights.”49
“The presumption against prior restraints is heavier—and the degree of

46

See Levine, 764 F.2d at 599.

47

See Craig, 331 U.S. at 373.

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575,
29 L. Ed. 2d 1 (1971).
48

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791, 49 L. Ed. 2d
683 (1976); see also Order 159 at 3:25-26 (“based upon the nature of SDCC’s
requests … its protective order is a prior restraint”).
49

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protection broader—than that against limits on expression imposed by
criminal penalties” because “a free society prefers to punish the few who
abuse rights of speech after they break the law than to throttle them …
beforehand.”50 Unless that “heavier presumption” has been rebutted, the
district court’s order is a clear error of law and this Court should exercise
its mandamus jurisdiction to remedy the constitutional wrong.
“The Nebraska Press standard is an exacting one, and … allows a prior
restraint 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.”51 Because “[p]rior restraints are subject to
strict scrutiny,”52 “it is not enough for a court to decide that the fair trial
right may be affected by the exercise of free speech. Nor is it enough … …
to conclude … that the prior restraint has a rational basis.”53 Instead, “the
district court’s order may be upheld only if …: (1) the activity restrained

Southeast Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S. Ct. 1239, 43
L. Ed. 2d 448 (1975).
50

51

Hunt v. NBC, 872 F.2d 289, 295 (9th Cir. 1989).

52

Levine, 764 F.2d at 595 (citations omitted).

53

Levine, 764 F.2d at 603 (Nelson, J., concurring and dissenting).
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poses either a clear and present danger or a serious and imminent threat to
a protected competing interest”—here, the district court’s ability to conduct
a fair trial; “(2) the order is narrowly drawn; and (3) less restrictive
alternatives are not available.”54
Here, the district court found a “serious and imminent threat”
justifying the second suppression order because:
(1)

any “dissemination of information by Defendants through their
range of online networks … reach[es] an extensive amount of
people”;

Levine, 764 F.2d at 595 (citations omitted). Levine discerned in Supreme
Court precedent a “suggest[ion] that it is appropriate to impose greater
restrictions on the free speech rights of trial participants than on the rights
of nonparticipants,” generally; and noted: “[t]he case for restraints on trial
participants is especially strong with respect to attorneys.” Id. But here the
issue is party-litigant speech, not attorney speech—to which the
justifications for regulating lawyers do not apply. See Gentile v. State Bar of
Nevada, 501 U.S. 1030, 1071, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991)
(“lawyers in pending cases [are] subject to ethical restrictions on speech to
which an ordinary citizen would not be”); Nebraska Press, 427 U.S. at 601 n.
27 (Brennan, J., concurring in the judgment) (“As officers of the court, …
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.”). In any event, Levine itself still applied the threepart Nebraska Press test to restraints on party litigants, so there is no
precedent for applying a different standard.
54

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(2)

“the venire is being influenced” through that dissemination;
and

(3)

trial is near.55

As shown below, the evidence relied on by the district court does not
support its first two findings, and the third standing alone cannot show a
serious and imminent threat. Therefore the second suppression order
should be vacated.
a.

The Supposedly “Extensive” Reach of Petitioners’
“Online Networks” Is Belied by San Diego’s Populous
and Metropolitan Character

“[R]elevant factors in evaluating the likely impact of pretrial publicity
upon a community” include “whether the community itself is small and
rural, or large, populous, metropolitan and heterogeneous.”56 Where there
is a “large, diverse pool of residents eligible for jury duty, any suggestion
that 12 impartial individuals could not be empaneled … is hard to

See Order 159 at 6:17-18, 6:23-7:1, 8:13-14. As noted above, the district
court also mentioned the timing of the parties’ conventions, but that is
moot because both are now over.
55

56

Hunt, 872 F.2d at 294.
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sustain.”57 “[I]n a populous metropolitan area, the pool of potential jurors
is so large that even in cases attracting extensive and inflammatory
publicity, it is usually possible to find an adequate number of untainted
jurors.”58
i.

The Venue Is Large, Populous, and Metropolitan

Here, the district court “draws names of prospective jurors from the
list of registered voters … in San Diego and Imperial Counties.”59 San
Diego County has about 3.3 million residents, Imperial County about
200,000;60 there are nearly 1.7 million registered voters in San Diego County
and more than 72,000 in Imperial County, or about 1.75 million in both

Skilling v. United States, 561 U.S. 358, 361, 130 S. Ct. 2896, 177 L. Ed. 2d 619
(2010).
57

CBS, 729 F.2d at 1181; see also Hunt, 872 F.2d at 294 (“whether the
community itself is small and rural, or large, populous, metropolitan and
heterogeneous” is “relevant … in evaluating the likely impact of pretrial
publicity upon a community”).
58

59

https://www.casd.uscourts.gov/Jurors/SitePages/Home.aspx.

See http://www.dof.ca.gov/Forecasting/Demographics/Estimates/E1/documents/E-1_2017PressRelease.pdf.
60

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counties combined.61 The venue is “large, populous, metropolitan and
heterogeneous.”62
ii.

The Metrics Relied on by the District Court Are
Not Relevant

According to the district court, “dissemination of information by
Defendants through their range of online networks would reach an
extensive amount of people” because:
Defendant 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.63

http://elections.cdn.sos.ca.gov/ror/ror-pages/ror-odd-year2017/county.pdf. More precisely: 1,677,468 in San Diego County and 72,282
in Imperial County.
61

See People v. Harris, 623 P.2d 240, 247, 246 (Cal. 1981) (when trial was held
in San Diego, “the populous metropolitan character of the community
dissipated the impact of pretrial publicity” and “tipped the balance against
venue change”).
62

63

Order 159 at 6:12-18.
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The last figure, 120,000 attendees at the 2014 Salt Lake Comic Con, is
irrelevant because no link was shown between convention attendance in
Salt Lake City and tainting of the San Diego venire, 750 miles away.64
The largest number, “200,000 media articles,” has to be digested. It
cannot mean that 200,000 separate news reports have been written; that
would be absurd. The explanation is found in one of the sources cited by
the district court: “The Associated Press has written two articles on the
issue, the last one of which was published in more than 160,000 news
outlets worldwide.”65 Given that scale of distribution, two news reports
distributed through AP’s network is enough to account for the entire
“200,000 media articles.”
And that is worldwide: a more relevant inquiry might be how many
of those articles appeared in San Diego news outlets, and with what
circulation; but the record does not answer that question because SDCC
provided no evidence of news coverage in San Diego. SDCC did not, for

San Diegans have what SDCC calls “the focal point for the world of
comics conventions” happening right in their backyard, see
https://www.comic-con.org/about; why assume 120,000 of them traveled
750 miles to attend the Salt Lake upstart?
64

65

ECF Doc. 126-5 at 4, Exhibit 3 p. 17.
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example, show which newspapers or television stations picked up the
stories, or what their circulation or viewership is.
Moreover no connection was shown between statements by
petitioners and either the frequency or content of news reports. Telling
against any direct correlation: the district court’s summary judgment ruling
came after its second suppression order; but the Associated Press still
covered the ruling, with no encouragement or input from the muzzled
petitioners.66
That leaves 35,000 followers of petitioners’ twitter feeds. But again,
nothing in the record shows how many of those followers are part of San
Diego’s jury pool, if any, or how many are current (rather than former)
followers. And even if they all were, that would be just 2% of the pool—
which under this Court’s jurisprudence is inconsequential.67

See https://www.usnews.com/news/best-states/california/articles/
2017-09-13/comic-con-court-battle.
66

See Hunt, 872 F.2d at 295 (“[T]he jury pool in San Mateo County …
exceeded … NBC projected that 15% of adults in San Mateo County would
watch the broadcast; ultimately, approximately 21.3% watched. Even
taking into account any possible ‘ripple effect’ … there remains an
extremely large pool of untainted potential jurors from which to draw
twelve.”).
67

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iii.

The District Court Disregarded Alternatives and
Misapprehended the Relevant Inquiry

The district court’s fixation on petitioners’ online reach and following
is also misguided because it disregards “less restrictive alternatives,”68
including alternatives the district court is already implementing.
Specifically, the district court has prepared a questionnaire to explore
potential jurors’ “familiarity … with either or both defendants,” screen for
“some relationship, affinity, whatever … -- or animosity -- … and their
exposure, if any, to any pretrial publicity,” and weed out those with “any
ax to grind.”69 If any of the nine Facebook users who posted sympathetic
comments or 35,000 twitter followers mentioned by the district court are
potential jurors and do receive the questionnaire—the odds are vanishingly
small—they will be excluded from service based on the questionnaire.
In a related vein, the district court waved aside the national character
of petitioners’ online outreach as follows: “to argue that Defendants’ posts
are meant to target the community of comic fans instead of the San Diego

68

See Levine, 764 F.2d at 595

See July 14 Transcript at 51:8-9, 52:7; September 21 Transcript at 49:2350:1.
69

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citizenry completely flouts the fact that the ‘Comic Fandom’ community is
logically inclusive of San Diego comic fans.”70 That rejoinder might be
more compelling if the relevant inquiry were whether any potential jurors
might be influenced. But that is not the standard. The standard is whether
the “absence” of a prior restraint “would prevent securing twelve jurors
who could, with proper judicial protection, render a verdict based only on
the evidence admitted during trial.”71
“Given the large, diverse pool of residents eligible for jury duty, any
suggestion that 12 impartial individuals could not be empaneled … is hard
to sustain.”72 And on this record, it has not been.
b.

The Evidence the District Court Cited Does Not Show
that the Venire Is Being Influenced

In addition to the numbers considered above, the district court also
cites “evidence that demonstrates that the venire is being influenced
through social media dialogue.”73 The evidence consists of nine
sympathetic comments to petitioners’ initial post of “the fraudulent

70

See Order 159 at 8:9-11.

71

Hunt, 872 F.2d at 295.

72

Skilling, 561 U.S. at 361.

73

Order 159 at 6:23-7:1.
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statement [SDCC] used to obtain their trademarks [i.e., trademark
registrations from the PTO] when they knew there were many comic cons
out there.”74 Out of 35,000 followers, nine were “influenced” enough to
comment. And no evidence suggests any of them live in San Diego. That
hardly “demonstrates that the venire is being influenced through social
media.”
The district court also noted that:
Defendants’ websites and social media applications are
packed with comments such as “‘Comic Con’ is generic,”
“SDCC declared false information to obtain the ‘Comic
Con’ trademark,” and the Salt Lake Comic Con website has
an entire section devoted to the instant matter with
subheadings titled “Comic Con is generic.”75
But “relevant factors in evaluating the likely impact of pretrial publicity
upon a community” include “whether the subject matter of the case is lurid
or highly inflammatory”76—and genericness is hardly “lurid or highly
inflammatory.” Moreover “pretrial publicity, even if pervasive and
concentrated, cannot be regarded as leading automatically … to an unfair

74

See Order 159 at 7:1–21.

75

Order 159 at 7:22–26.

76

Hunt, 872 F.2d at 294.
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trial,”77 and the district court cited no evidence that the genericness
comments that “packed” petitioners’ “websites and social media
applications” has had any effect on the venire.
There simply is no evidence “that the venire is being influenced.”78
c.

The Nearness of Trial Cannot, without More, Justify a
Prior Restraint

Without more, the nearness of trial weighs at least as heavily against
prior restraints as in favor, because that is “the precise time when public
interest in the matters discussed would naturally be at its height” and “[n]o
suggestion can be found in the Constitution that the freedom there
guaranteed for speech … bears an inverse ratio to the timeliness and
importance of the ideas seeking expression.”79 To conclude otherwise—to
allow the nearness of trial, of itself, to justify prior restraints—would be to
countenance “[a]n endless series of moratoria on public discussion” about
first one case and then another, as they work their way through the system

77

See Nebraska, 427 U.S. at 565.

78

Cf. Order 159 at 6:23.

See Bridges v. California, 314 U.S. 252, 268-69, 62 S. Ct. 190, 86 L. Ed. 192
(1941).
79

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and near trial, which “could hardly be dismissed as an insignificant
abridgment of freedom of expression.”80
Of the district court’s four findings in support of its second
suppression order, one is moot because the parties’ conventions are over
and two are unsustainable because there is no evidence of petitioners’
supposedly “extensive reach” within the venue or that the venire is being
influenced. That leaves only the fact that trial is approaching, which cannot
alone warrant the imposition of any prior restraints. Therefore the second
suppression order should be vacated.
3.

The Second Suppression Order Is Not Narrowly Drawn

Even where “a serious and imminent threat” is shown, any prior
restraint must be “narrowly drawn” to that threat.81 Here, the district
court’s findings all have to do with “social media dialogue” prompted by
“Defendant Brandenburg[‘s] use” of “various websites and social media
pages to voice … opinions on the merits of their case.”82 The only evidence
cited to show that opinions have actually been affected by Mr.

80

See Bridges, 314 U.S. at 269.

81

Levine, 764 F.2d at 595.

82

See Order 159 at 6:19-7:1.
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Brandenburg’s online commentary is “Facebook user responses to
Defendant Brandenburg’s Facebook posts” about petitioners’ fraud claim.83
Thus, if a threat to the integrity of the venire had been shown, it would be a
threat posed by Mr. Brandenburg’s online commentary about fraud.
As shown above, the district court’s predicate findings are
unsustainable. But even if they could be sustained—even if the nine posts
about fraud could be traced to San Diego, and even if nine were more than
a tiny percentage of the jury pool—they would have supported only a
restraint against Mr. Brandenburg (not all petitioners) commenting on
fraud (not genericness, descriptiveness, or abandonment) on social media
(not in other settings). Therefore the second suppression order is not
narrowly drawn and should be vacated.
B.

The Third Suppression Order Should Be Vacated
1.

Allowing the Legacy Litigation Page to “Continue to Persist”
Did Not Violate the Second Suppression Order

The district court imposed its third suppression order “as a sanction”
for violating its second suppression order by not purging legacy content
from the SLCC website’s Litigation Page—“not that they were posted after

83

See Order 159 at 7:1-21.
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the court’s orders, but they have remained,” “they continue to persist.”84
Because the second suppression order cannot fairly be construed to have
required petitioners to purge the Litigation Page, the district court should
not have sanctioned petitioners by entering the third suppression order.
As issued, the second suppression order “prohibits Defendants from
making comments on [suppressed] topics.”85 That language is prospective.
Nothing in the order has any retroactive application or requires petitioners
to do anything about content that had already been posted. Prior restraints
“are narrowly construed”;86 so construed, the second suppression order
did not require petitioners to purge legacy content from the Litigation
Page.
Looking beyond the language of the second suppression order, as
explained above: SDCC asked the district court to include in its second
suppression order a requirement that petitioners retroactively purge the
Litigation Page; petitioners objected; and the district court did not include

84

See September 21 Transcript at 98:25, 98:3-6.

85

Order 147 at 2:24.

86

See Rodríguez-Vázquez v. Solivan, 844 F.3d 351, 355 (1st Cir. 2016).
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that provision in its final order.87 Even without the canon of narrow
construction, the only reasonable way to read the second suppression order
in light of that record is that it did not require petitioners to purge the
Litigation Page.
Because the second suppression order could not properly be
stretched to require that petitioners take down or purge the Litigation
Page, petitioners did not violate the second suppression order and the
district court should not have sanctioned them by entering its third
suppression order.
2.

The Third Suppression Order Amounts to a Criminal
Contempt Sanction Imposed Without Due Process

So far as petitioners are aware, imposing a prior restraint not to
protect the competing constitutional interest in a fair trial but to sanction
the violation of some other court order is unprecedented. Unless this Court
embraces a new ground for depriving citizens of their First Amendment
rights, that alone is reason to vacate the third suppression order.
Another is that the third suppression order amounts to a criminal
contempt sanction, imposed without due process. Despite finding that

87

See Exhibit I at 0064-0065, Exhibit J at 0067-0068, Order 147 at 3:21.
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petitioners “are not in contempt of court,” the district court also found
“that Defendants did violate the Court’s previous orders” then sanctioned
them88—and the absence of contempt cannot diminish the procedural
protections to which petitioners were entitled: whether or not the district
court called the violation “contempt,” “the principles … articulated
for cases of contempt … guide our determination of what procedural
protections are necessary in imposing sanctions” for it.89
“If the purpose of the court’s order is to punish past defiance and to
vindicate the court’s judicial authority, it is a criminal sanction.”90 “Civil
contempt sanctions, by contrast, are employed for two purposes: to coerce
the defendant into compliance with the court’s order, and to compensate
the complainant for losses sustained.”91 “If a sanction operates whether or
not a party remains in violation of the court order, it does not coerce
compliance.”92 “[W]here the elements of both civil and criminal are mixed,

88

See Order 264 at 1:24-26.

See F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244
F.3d 1128, 1137 (9th Cir. 2001).
89

90

Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992).

91

Whittaker, 953 F.2d at 517.

92

Whittaker, 953 F.2d at 517.
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the sanctions are reviewed under the procedural requirements of criminal
contempt.”93
The third suppression order (1) awarded attorney fees to SDCC and
(2) greatly expanded the restrictions on petitioners’ expressive conduct,
both by extending proscribed subject matter (for online postings, at least)
from the four topics that the second suppression order suppressed to “all
references to the pending litigation”94 and by stripping petitioners’ right to
post public documents altogether.95 The attorney fee award is
compensatory, hence civil. But the rest is criminal because it is neither
compensatory nor coercive: it is not compensatory because it does not
compensate SDCC for some harm it suffered as a result of the legacy
Litigation Page not being taken down sooner; it is not coercive because
petitioners cured the alleged violation of the second suppression order by

93

Whittaker, 953 F.2d at 518.

94

See Order 264 at 2:10.

95

September 21 Transcript at 108:19-21.
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taking the Litigation Page before the court even entered its third
suppression order on the docket, but still the restraints continue.96
Because the third suppression order combines elements of both civil
and criminal contempt, it must be “reviewed under the procedural
requirements of criminal contempt”97—which it fails, because: (1) FEDERAL
RULE OF CRIMINAL PROCEDURE 42 was not followed; (2) no willful
disobedience was (or could have been) found; and (3) willfulness and
disobedience were not “proved beyond a reasonable doubt.”98
C.

Even if Either Suppression Order Were Sustained, Petitioners
Should Not Be (1) Forbidden to Republish or Quote from Public
Documents (Including Judicial Records) or (2) Required to Post a
Disclaimer
The second and third suppression orders should be vacated, entirely.

But even if some part of them were allowed to stand, still this Court should
restore petitioners’ right to quote from and republish public documents
and relieve them of the disclaimer requirement.

See Whittaker, 953 F.2d at 517 (“If a sanction operates whether or not a
party remains in violation of the court order, it does not coerce
compliance.”).
96

97

Whittaker, 953 F.2d at 518.

98

See Whittaker, 953 F.2d at 517.
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1.

Republication of Already Public Documents Should Not Be
Proscribed

Considering first public documents, “[t]ruthful reports of public
judicial proceedings have been afforded special protection.”99 “What
transpires in the court room is public property. … Those who see and hear
what transpired can report it with impunity.”100 This applies to court
records as well as proceedings.101
The right to truthfully report public judicial records has one
limitation: he who makes and then disseminates defamatory claims in a
court filing, to persons and for reasons wholly unrelated to the judicial
proceeding, may be answerable in tort.102 But even where after-the-fact tort
liability might attach, “prior restraints are not permitted to stop the
publication of a defamatory statement”103 in advance. Moreover here,

99

Nebraska, 427 U.S. at 559.

100

Craig, 331 U.S. at 374.

See Cox, 420 U.S. at 496 (“the First … Amendment[ ] will not allow …
liability for truthfully publishing information released to the public in
official court records”).
101

102

See RESTATEMENT (SECOND) OF TORTS, § 587.

See Gilbert v. National Enquirer, Inc., 51 Cal. Rptr. 2d 91, 96 (Ct. App.
1996).
103

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petitioners are forbidden to report the contents of any records, even the
district court’s own orders, which no one suggests are defamatory. So far as
petitioners can tell, the district court’s prior restraint against “truthfully
publishing information released to the public in official court records”104 is
unprecedented.
Nor should petitioners be barred from republishing or quoting from
other public records, such as third-party press reports. What the press has
already reported is already in the public domain. Barring petitioners from
disseminating what is already in the press protects the venire from nothing
it is not already exposed to.
2.

The Counterproductive Disclaimer Mandate Should Be
Undone

If any prior restraint survives this Court’s review, petitioners should
be permitted to say they have been restrained, when and to whom they will,
without being required to. The mandatory disclaimer requirement should
be undone.

See Cox Broadcasting, 420 U.S. at 496; see also Craig, 331 U.S. at 374 (“What
transpires in the court room is public property.”).
104

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First, the disclaimer mandate is a further “constitutional harm”
because “[t]he First Amendment prohibits … being forced to speak rather
than to remain silent.”105 Second, the mandatory disclaimer bears no
relation to the district court’s findings because far from discouraging “social
media dialogue”106 about the case, the disclaimer has actually encouraged
it.107 Third, the petitioners should not be forced to make the Hobson’s
choice between (1) acquiescing in the continued infringement of their right
to remain silent, by retaining the unduly intrusive disclaimer mandate, or
(2) saying nothing, not even that they have been suppressed, when they
want to explain their silence.
The only apparent purpose served by requiring petitioners to
“prominently” display a disclaimer across all their corporate and personal
websites and social media pages, where a visitor “would [unavoidably] see

105

See Axson-Flynn, 356 F.3d at 1284 n. 4.

Cf. Order 147 at 6:23-7:1 (“the venire is being influenced through social
media dialogue”).
106

As SDCC observed in its contempt motion: “[a]s of August 1, 2017, …
more than 90 people chose to comment on the disclaimer” and “[t]he
disclaimer required by the Court … invites public commentary or
discourse about the lawsuit …” ECF Doc. 207-1 at 10:4-5, 11-13.
107

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it once it landed on Defendants’ website,”108 as the price of being able to
explain their silence, is to shame them—which is a more “serious and
imminent threat to the administration of justice”109 than anything cited by
the district court to justify its orders.
VI.

CONCLUSION

This Court should intervene to alleviate the “extraordinarily grave”
damage110 being done to petitioners by the district court’s unconstitutional
suppression orders.
DATED: September 27, 2017

/s/ L. Rex Sears
MICHAEL I. KATZ
mkatz@mabr.com
L. REX SEARS
rsears@mabr.com
MASCHOFF BRENNAN PLLC
20 Pacifica, Suite 1130
Irvine, California 92618
Telephone: (435) 252-1360
Attorneys for Defendants–Petitioners

108

See Order 215 at 2:1-9.

109

See Craig v. Harney, 331 U.S. at 373.

110

See CBS, 729 F.2d at 1177.
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CERTIFICATE OF COMPLIANCE
1.

This petition complies with the type-volume limitation of

Federal Rule of Appellate Procedure 21(d)(1) because the petition contains
7,718 words.
2.

This petition complies with the typeface requirements of

Federal Rule of Appellate Procedure 32(a)(5) and the type style
requirements of Federal Rule of Appellate Procedure 32(a)(6) because this
petition has been prepared in proportionally spaced roman-style typeface
using Microsoft Word in 14-point Book Antiqua font.
DATED: September 27, 2017

/s/ L. Rex Sears
L. Rex Sears
Attorney for Defendants–Petitioners

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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, defendants-petitioners Dan
Farr Productions, LLC, Daniel Farr, and Bryan Brandenburg state they are
not aware of any related cases pending before this Court.
DATED: September 27, 2017

/s/ L. Rex Sears
L. Rex Sears
Attorney for Defendants–Petitioners

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CERTIFICATE OF SERVICE
I, L. Rex Sears, counsel for defendants-petitioners Dan Farr
Productions, Daniel Farr, and Bryan Brandenburg, certify that on this 27th
day of September, 2017, the foregoing PETITION FOR WRIT OF
MANDAMUS was filed electronically with the U.S. Court of Appeals for
the Ninth Circuit by means of the Court’s CM/ECF system. I further certify
that the foregoing was served on the following counsel of record, by means
of electronic mail and/or hand delivery:
Callie A. Bjurstrom, Esq.
callie.bjurstrom@pillsburylaw.com
Peter K. Hahn, Esq.
peter.hahn@pillsburylaw.com
Michelle A. Herrera, Esq.
michelle.herrera@pillsburylaw.com
PILLSBURY WINTHROP SHAW PITTMAN, LLP
501 West Broadway, Suite 1100
San Diego, CA 92101
Telephone: (619) 544-3107
Attorneys for Plaintiff–Real Party in Interest
Honorable Anthony J. Battaglia (hand delivery via courier)
Courtroom 4A, Suite 4135
221 West Broadway
San Diego, CA 92101
DATED: September 27, 2017

/s/ L. Rex Sears
L. Rex Sears
Attorney for Defendants–Petitioners

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