The Volokh Conspiracy
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No Gag Order Against Extrajudicial Commentary in AR-15-Related Intellectual Property Case
"Armory correctly notes the InRange Video and Recoil Article are accessible "to millions of people," as is anything posted publicly on the internet. Nonetheless, Armory fails to show the InRange Video or Recoil Article reached members of the potential jury pool, let alone irreparably tainted them."
From GWACS Armory, LLC v. KE Arms, LLC, decided yesterday by Magistrate Judge Susan Huntsman (N.D. Okla.):
The ownership and use of intellectual property for the CAV-15 monolithic polymer receiver for AR-15 assault rifles is at the center of this dispute. Among other things, Armory alleges that KE Arms, LLC ("KEA") has breached a non-disclosure agreement, misappropriated trade secrets, and misappropriated its intellectual property rights by developing and marketing a lower that is based on Armory's protected designs. Armory also has claims against Brownells, Inc. ("Brownells") and other defendants. KEA, meanwhile, asserts that it has done nothing wrong and alleges that Armory committed various torts by informing KEA's customer, Brownells, of its claims before the lawsuit was filed. …
Non-party Karl Kasarda ("Kasarda") has previously filed a declaration in this litigation as the owner and manager of InRange, LLC ("InRange"), another non-party. According to Kasarda, InRange is "an online video program dedicated to the study of firearms, shooting, gun culture, and history." While a non-party, InRange allegedly has a pecuniary interest in the outcome of the case. According to Kasarda's declaration, in 2018, Brownells and InRange entered into an agreement where Brownells would be the exclusive retailer, and InRange the primary marketer, of a fully assembled AR-15 rifle for a project called "What Would Stoner Do" ("WWSD")…. According to Kasarda, InRange will receive 5 percent of the retail purchase price for each firearm using the "WWSD" designation. KEA is manufacturing the polymer lower for this rifle, and it appears this lower is the one Armory claims misuses its designs. Armory deposed Kasarda on April 7, 2022….
Non-party Reed Oppenheimer ("Oppenheimer") is one of Armory's investors. At his May 27, 2022, deposition, Oppenheimer testified he was funding the instant litigation ….
On July 24, 2022, InRange posted a YouTube video titled "WWSD -GWACS Armory Sucks" (the "InRange Video") in which Kasarda explains his involvement in the WWSD project and expresses his opinion on several related topics, including the merits of Armory's claims in the instant lawsuit. Kasarda discusses Oppenheimer's deposition testimony in the final few minutes of the video, stating that Oppenheimer made "pretty flagrant anti-AR-15 and military-style firearms comments" during the deposition, including that he "was no longer interested in manufacturing or being associated with the manufacture of any AR-15 product or military-style firearms but was willing to continue to fund the lawsuit against KE, et al."
Kasarda then presents the following question: "If [Armory is] suing about the supposed property rights of the CAV Arms slash now GWACS Mark II lower in relation to the completely new designed KP-15 … what is it they're trying to acquire if it isn't to manufacture more or a new monolithic polymer lower if the person investing in them flat out says that he is against AR-15s and military-style firearms in the civilian hands?" Kasarda offers his "interpretation" of the answer to this question by suggesting the instant lawsuit could be the result of one of the following: (1) a realization that Armory is a failure; (2) a legitimate effort "to diminish the amount of AR-15s available on the market as some form of activism in a very weird backhanded way"; or (3) a genuine belief that "they own the A1 length of pull, trap door buttstocks, QD swivels, and … [the] What Would Stoner Do … project." Kasarda ultimately concludes that no matter the reason for the litigation, Armory has "done immense harm to no benefit to [InRange], to the industry, or to … the consumer."
David Lane ("Lane") holds himself out as "the Web Editor for RECOILWeb.com, the digital side of RECOIL Magazine." http://davidlane.biz/ (last visited Dec. 6, 2022). On July 29, 2022, Lane published an article on RECOILweb.com (the "Recoil Article"), discussing the instant lawsuit and his opinion on the merits of Armory's claims. Lane also explores Oppenheimer's involvement in the instant lawsuit, his contributions to federally registered political committees, and the Reed Jules Oppenheimer Foundation's annual returns. Based on statements Oppenheimer made in his deposition, Lane characterizes Oppenheimer as someone who is "flagrantly against the AR-15 in the hands of civilian ownership." …
Armory asks the Court to prohibit the parties from disseminating any information about the case (confidential or not); to order the public in general not to harass or oppress Armory or Oppenheimer; and to prohibit the use of any evidence from this case for any purpose other the prosecution of this case. Armory asserts such extraordinary relief is justified, because Defendants have engaged in a "smear campaign" to harass and oppress Armory and/or Oppenheimer, to prejudice Armory's ability to have a fair trial, and to seek their own "public justice." Specifically, Armory contends that Defendants acted "in apparent concert" with Kasarda in publishing the InRange Video, which also resulted in the publication of the Recoil Article. According to Armory, the InRange Video misrepresents the facts and mischaracterizes Armory's claims, misleading the public (including potential jurors) about the case. As evidence of the InRange Video's ability to taint the potential jury pool and prejudice a fair trial, Armory points to one disparaging voicemail from an anonymous caller in Oklahoma it received the day after InRange posted the video. Armory also generally points to the InRange Video's comments "about Oppenheimer, his charitable foundation, boycotting any business he is a part of, … Armory, and Armory's lawyers."
An order prohibiting extrajudicial commentary regarding a pending case imposes a prior restraint on the rights guaranteed by the First and Fourteenth Amendments. In the Tenth Circuit, "[a] party seeking to impose a gag order on any trial participant must show there is a 'reasonable likelihood' that media attention or extrajudicial commentary will prejudice a fair trial." Stated differently, the moving party must demonstrate "a 'reasonable likelihood' of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial." In determining whether a reasonable likelihood of prejudice exists, and whether an order restraining speech is justified, the court should consider: "(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger." Taking each factor in turn, the Court concludes Armory has not satisfied its burden of proof for the imposition of a gag order on trial participants, much less other non-parties….
There is no evidence this matter has been publicized by any local news sources. The only media attention Armory identifies is the InRange Video and the Recoil Article, which the Court finds insubstantial. Armory correctly notes the InRange Video and Recoil Article are accessible "to millions of people," as is anything posted publicly on the internet. Nonetheless, Armory fails to show the InRange Video or Recoil Article reached members of the potential jury pool, let alone irreparably tainted them. "[P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial."
Although originally published on YouTube, Armory states the InRange Video was subsequently shared on Facebook, Reddit, and other platforms. Armory asserts InRange has 426,000 YouTube subscribers, 40,134 Facebook followers, and approximately 3,800 Reddit members. Armory states the InRange Video was viewed 92,203 times, received 1,050 comments, and received nearly 7,500 likes within a week of publication. As to the Recoil Article, Armory states Recoil has 517,302 followers on its "Facebook page alone." Significantly, there is no evidence connecting InRange's or Recoil's social media participants with the potential jury pool in this case. For example, Armory presents no evidence on the number of InRange's 426,000 YouTube subscribers or Recoil's 517,302 Facebook followers, if any, who either are registered voters in one of the counties that make up this district or are licensed drivers in Tulsa County. Likewise, there is no evidence that any of the YouTube users who made disparaging comments about Oppenheimer, Armory, and/or Armory's counsel are part of the jury pool, and in any event, the total number of commenters (whether 1,050 or 1,125) is insignificant. Because the pretrial publicity is insubstantial and Armory has failed to connect the scope of the speech at issue with the potential jury pool, the pretrial publicity factor weighs against the imposition of a gag order on the trial participants in this case….
The Court concludes there are protective measures short of prior restraint available to address Armory's concerns and guarantee a fair trial. These measures "include such possibilities as a change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors." Armory fails to address whether any of these measures are appropriate in this case, and the undersigned makes no finding as to what the Court may find appropriate once voir dire has occurred. For purposes of this order, it is sufficient that Armory fails to explain why these measures—if warranted—would be inadequate to address any adverse trial publicity….
Regarding the effectiveness of a gag order in preventing the alleged danger, the Court notes the information Armory seeks to restrain was first publicized on July 24, 2022, and the trial date in this case is March 20, 2023…. [T]he InRange Video and Recoil Article will be over six months old by the time of trial. Moreover, it appears interest in the InRange video has waned over time. Since the initial interest spike during the first week of publication over four months ago, the InRange video has only been viewed an additional 31,797 times, liked an additional 1,500 times, and commented on 75 more times. In any event, "the information that [Armory] seeks to restrain has, by its own admission, already been publicized. Although not wide-reaching, such information is still in the public arena, and the Court cannot suppress access to such information."
