Cochran ruling only narrow free-speech victory

Wednesday, June 1, 2005

WASHINGTON — Yesterday’s Supreme Court ruling in Tory v. Cochran invalidated a sweeping injunction that barred Ulysses Tory, a disgruntled former client of famed lawyer Johnnie Cochran Jr. from uttering a word about him in public.

But the fact that the Court invalidated it only because Cochran is dead leaves open the possibility that future injunctions might be found valid — a disquieting prospect for free-speech advocates who view any speech injunction as a form of prior restraint forbidden by the First Amendment.

For now, however, Tory’s lawyer Erwin Chemerinsky was glad to celebrate the decision as a solid, if narrow, win. “I do regard it as a victory,” said Chemerinsky, a leading constitutional law expert at Duke Law School. “The Court overturned the injunction, albeit on narrow grounds. The Court reaffirmed that injunctions, including in defamation cases, must be narrowly tailored.”

The injunction, approved by a California Superior Court judge and upheld by a state appeals court, stemmed from Tory’s campaign against Cochran in the mid-1990s, when Tory picketed outside Cochran’s Los Angeles office, calling Cochran a liar and a thief. Cochran accused Tory of defamation and said Tory was trying to force him to pay money to get Tory to stop picketing. Tory appealed the case to the Supreme Court and was joined by numerous media organizations that decried the sweeping nature of the injunction.

Cochran died a week after the March oral arguments in the case. While not making the case moot, Justice Stephen Breyer said in yesterday’s decision, Cochran’s death “makes it unnecessary, indeed unwarranted,” to delve deeply into Tory’s First Amendment claims.

“Rather, we need only point out that the injunction, as written, has now lost its underlying rationale,” Breyer wrote. If the injunction was aimed at keeping Tory from exacting a payment from Cochran, Breyer said, “The grounds for the injunction are much diminished, if they have not disappeared altogether. Consequently, the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification.”

Breyer went on to allow Cochran’s widow to replace Cochran as a party to the case and said she could go back to California courts to seek a new injunction “tailored to these changed circumstances.”

Dissenting Justice Clarence Thomas, joined by Justice Antonin Scalia, pointed out the uncertainties that remain in the wake of the opinion. Because the majority invites Cochran’s widow or his law firm to seek a narrower injunction, Thomas said, the “Court’s decision invites the doubts it seeks to avoid.” Thomas said he would have dismissed the case entirely.

In comments to the Los Angeles Daily Journal following the decision, Cochran’s lawyer Jonathan Cole indicated that when the case returns to California courts, he is likely to drop the complaint that led to the injunction — unless Tory’s future actions require renewal of the injunction.