Tory, Ulysses, et al. v. Cochran, Johnnie (05/31/2005)

Question presented: Whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the 1st Amendment?

BY JESSICA YOUNG & KARA REINHARDT, MEDILL NEWS SERVICE

In the late 1990s, Ulysses Tory, his wife and a troop of others began to make a habit of picketing outside the Los Angeles Superior Court and downtown office of high profile attorney Johnnie L. Cochran Jr. Their critical and rather explicit placards frequently alleged that Cochran had unethical and even illegal dealings with former clients.

The demonstrators' signs leveled charges with slogans such as "Johnnie Cochran I Know WHAT You, the County and city DID to my CASE," "Johnnie is a crook, a liar and a Thief. Can a lawyer go to HEAVEN?," "Hey Johnnie, How Much Did They Pay $$ You to F--- Me?" and "Unless You have O.J.'s Millions – You'll be Screwed if You USE J.L. Cochran, Esq."

Cochran represented Tory and another man in a personal injury suit filed in 1983 against the city of Los Angeles after a police shooting, but withdrew as counsel two years later after receiving a letter from Tory accusing him of stretching out the case and conspiring with the city. Tory asked for $10 million "or very close to it" to "refrain from any public discussions of conspiracy or scandal," but then he seemed to disappear after the request went unheeded.

In July 1995, after 10 years of silence and a great deal of media publicity for Cochran during the O.J. Simpson trial, Tory resurfaced and sent Cochran another written demand for money. Again, he received no response from his former lawyer.

Tory then decided to air his frustrations in a more public manner, transporting picketers to Cochran's office and the courthouse and buying lunch for everyone. Only one other person in the group may have been a client of Cochran's, and Tory "admitted the ‘possibility'" that the others were in it just for the free lunch, according to court documents. In October 2000, Tory again wrote to Cochran demanding the return of some alleged fees and $15,000 in compensation.

Cochran filed a defamation and invasion of privacy lawsuit against Tory the same month. More than a year later, in March 2002, the trial court sided with Cochran and issued a permanent injunction against Tory, setting the stage for a vigorous battle against prior restraint that would make it all the way to the U.S. Supreme Court.

Los Angeles Superior Court Judge Ronald Sohigian, the judge who initially heard Cochran's complaint, concluded that monetary damages, the standard award in cases claiming reputational injury, were an inadequate remedy under the circumstances. During the trial, Tory admitted that without court-ordered restraint, he would continue to picket Cochran.

Sohigian found that Tory's statements were "maliciously" made with "disregard for the truth [and] for the purpose of inducing Cochran to pay Tory… money to which Tory was not entitled." Although Cochran's suit did not formally allege criminal extortion, Sohigian incorporated the charge in justifying his decision.

Tory, his wife and "their agents" were enjoined from picketing Cochran and speaking or displaying written material about Cochran or his firm "in any public forum, including, but not limited to, the Los Angeles Superior Court and any other place at which Cochran appears for the purpose of practicing law." The group also could not stand, assemble or approach within 300 yards of Cochran or his place of business.

Tory appealed on the grounds of unconstitutional prior restraint, but the 2nd District Court of Appeals affirmed Sohigian's decision in October 2003. Justice Miriam Vogel, who wrote the opinion for the unanimous three-judge panel, rejected Tory's contention that the permanent injunction is a "‘particularly egregious'" prior restraint and therefore is unconstitutional.

Once certain speech has been determined to be unprotected under the 1st Amendment, "an injunction restraining that speech does not constitute an impermissible prior restraint… [The] same is true here, where the pervasive use of libelous and slanderous statements have been judicially determined to violate" the law, Vogel wrote.

The court similarly dismissed Tory's claim that he was untouchable from a defamation standpoint because his placards voiced merely opinion and did not purport to be factual.

"Substantial evidence shows that Tory ‘crossed the line separating protected rhetorical hyperbole from unprotected fraudulent misrepresentations of fact,'" Vogel wrote, because it was established that Cochran did not owe Tory money, and Tory knew his statements about Cochran were false.

Tory accused Cochran of theft and of accepting money as a bribe to abandon Tory's case against the city and the county, which were false statements "reasonably calculated to induce the reader to understand that a person is guilty of a crime or is dishonest in his profession" and thereby "sufficient to establish libel," Vogel added.

When Tory reached the California Supreme Court, his case reached a roadblock when it was not granted review after garnering only two of the necessary four votes amongst seven justices.

However, on Sept. 28, 2004, the U.S. Supreme Court accepted review in the case.

At the root of the issue is whether the 1st Amendment protects against permanent injunctions issued as a potential remedy in defamation cases, which could potentially prevent all future speech about an admitted public figure.

Howard M. Wasserman, assistant law professor at Florida International University and 1st Amendment scholar, understands why the U.S. Supreme Court is entering the controversy.

"The U.S. Supreme Court has never upheld prior restraint as a remedy for defamation," he said. "Post-publication punishment, in way of criminal proceedings or an award of civil damages, is always an option. But what the First Amendment is stingier about is prior restraint, which is what we're dealing with here because a prospective remedy was issued, and that is beyond the pale of the First."

Susan Baker is one of Cochran's three lawyers from the firm Nemecek & Cole in Sherman Oaks, Calif., along with Jonathan B. Cole and Karen Coffin. For Baker, the intricacies of the case arise out of the parameters of the 1st Amendment.

"Free speech is not unlimited," she said. "Mr. Tory was using free speech as a guise to commit the crime of extortion. There's a time and a place for prior restraint. If you've used your 1st Amendment right to commit a crime, you've abrogated yourself of that right in the future."

According to Wasserman, this is where the lower court's affirmation of the injunction and Cochran's team's arguments tread on dangerous ground.

In the 2nd District Court of Appeal decision, Vogel rejected Tory's claim that the injunction is overbroad in its scope. In his appeal, Tory argued that he cannot even "praise [Cochran] as the finest lawyer of Los Angeles," "inform people that [Cochran] represented O.J. Simpson," "write a letter to the editor criticizing the court's ruling," "appear in court to challenge the injunction," or "tell friends, at a picnic in a public park: ‘Johnnie Cochran was not very nice to me.'"

Vogel wrote that the order "simply preclude[s Tory] from continuing [his] unlawful activity."

This understanding of the injunction is problematic, Wasserman said.

"The California court didn't limit the injunction to defamatory remarks, which in and of itself would have had its own issues," he said. "Mr. Tory can't ever make statements of any kind about Mr. Cochran – whether truthful or opinionated, let alone defamatory. That's where the court overstepped the line."

Baker said without the "ability to enjoin Mr. Tory and police what he says," he would continue the vicious cycle of defamation. The U.S. Supreme Court likely agreed to review the case because of inconsistent rulings of California courts on the matter of prior restraint, she said.

According to Baker, the circumstances of Tory's alleged criminal conduct differentiate the case from others and explain apparent ruling discrepancies.

Wasserman does not buy that argument.

Even if Tory had engaged in criminal conduct, the law does not allow him to be enjoined against any "non-extortionary activity with regard to the same parties involved," Wasserman said. "On a more general level, the fact that you engaged in unprotected speech in the past can't, or shouldn't, be grounds for stopping you from engaging in what may or may not be protected speech in the future."

In essence, the court told Tory he "cannot, under any circumstances, talk about Mr. Cochran ever," said Erwin Chemerinsky, a law professor at Duke University, who represented Tory before the U.S. Supreme Court. "If someone defamed you, damages can be awarded, but you can't chill speech."

Wasserman said it is possible that the U.S. Supreme Court will rule that speech already deemed unprotected can prospectively be stopped instead of being punished after the fact.

"They may leave that hole rather than ruling that any and all prior restraint as a remedy for defamation is unconstitutional," he predicted. "However, I'd imagine the Court may go a step beyond merely saying the specific injunction was too broad."

During the Court's oral arguments on March 22, 2005, the justices appeared convinced that the injunction was overbroad, but also seemed dissatisfied with other suggested remedies.

They were concerned because the injunction had no time limit and prohibited not just defamatory speech but any speech about Cochran or his firm, including "lawful, harmless, truthful speech," Justice Anthony Kennedy said.

The injunction also applied not only to Tory but to "his employees, agents, representatives, and all persons acting in concert, cooperation or participation with him." As Justice David Souter pointed out, that included Chemerinsky, Tory's counsel.

"You're in trouble too, aren't you?" Souter asked the attorney, drawing laughter from the audience.

"[The injunction] is clearly overbroad," Justice Sandra Day O'Connor said. "Now, what should we do about that?"

Chemerinsky argued that the only option was for Cochran to sue for monetary damages, since any injunction against speech would be unconstitutional prior restraint. But Justice Stephen Breyer wondered how the Court could ban injunctions against speech without affecting injunctions against harassment, which could involve speech. In addition, several justices suggested that without the option of an injunction, poor people would be able to defame with impunity because they are "judgment-proof," or unable to pay monetary damages.

"We may agree with you that it's overbroad," Souter told Chemerinsky. "We may agree with you that as to pure speech, you can't enjoin it. But that doesn't necessarily mean that every part of this injunction is wrong."

Cochran's attorney, Jonathan B. Cole, maintained that an injunction was the only viable remedy.

However, he admitted he was "gleaning the impression" that the justices thought the injunction was overbroad.

"You're very perceptive," Justice Antonin Scalia said, prompting laughter from spectators.

Scalia suggested narrowing the injunction by prohibiting Tory only from defaming Cochran in the same manner as he had been for the past few years. That way, if, for instance, Tory had a sudden change of heart and complimented Cochran in public, he wouldn't be violating the injunction. But "that injunction would be attacked on being vague or ambiguous," Cole said. "Mr. Tory wouldn't have sufficient notice as to what he was allowed to say and not to say."

Several justices seized on extortion as a way of differentiating this injunction from one based purely on defamation. Not only was Tory defaming Cochran, they said, he was doing so as a way of pressuring Cochran into paying him money he thought was owed him. Cole eventually agreed the injunction could be limited to "defamatory speech of a similar nature designed to extort," but insisted Cochran still would be entitled to injunctive relief even if there were no extortion involved.

"You've got to give us some line," Scalia said. "The only reason we're grabbing onto extortion is that there's reluctance to say you can issue injunctions in all defamation actions."

Chemerinsky said the difficulty of narrowing injunctions against speech shows that they are not an appropriate remedy for defamation. If an injunction were allowed in this case, he said, injunctions against speech could become the norm.

Johnnie Cochran died in his home in Los Angeles on March 29, 2005, one week after his case was argued orally before the Court. He had been diagnosed with an inoperable brain tumor in December 2003.

On May 31, 2005, only two months after oral arguments, the Court issued its opinion, holding 7-2 that the injunction as written amounted to an overly broad prior restraint in violation of the 1st Amendment.

Justice Stephen Breyer wrote the brief majority opinion, in which he concluded that despite Cochran's death, the case was not moot because the injunction against Tory remained in effect.

Since the underlying rationale of the injunction -- coercing Cochran to pay a "tribute" for desisting in this activity -- no longer existed after Cochran's death, Breyer concluded that the constitutionally problematic injunction lacked "plausible justification."

Justices Clarence Thomas and Antonin Scalia dissented, arguing that the Court should have dismissed the writ as improvidently granted. By not doing so, Thomas wrote, the Court's decision "is unnecessary and potentially self-defeating."