Quick look at Tory v. Cochran

Tuesday, May 31, 2005

Case name: Tory v. Cochran

Background: Ulysses Tory, a disgruntled former client of the famed Los Angeles defense lawyer Johnnie Cochran Jr., picketed his offices over the years, claiming Cochran was a liar and a thief. Cochran, who claimed Tory was trying to coerce him into paying money to stop Tory from picketing, obtained a sweeping injunction barring Tory from speaking about Cochran or his firm in any public forum. Tory appealed on First Amendment grounds, but the California Court of Appeal upheld the injunction. Tory appealed to the U.S. Supreme Court. A week after oral arguments in March, Cochran died. Tory’s lawyer argued that the case was not moot, because the injunction barred Tory from speaking about Cochran’s firm, which had survived his death.

Ruling: Cochran’s death does not make the case moot, though the injunction “has lost its underlying rationale.” As a result, the injunction amounts to an overly broad prior restraint on speech and violates the First Amendment. The case is remanded to California courts where interested parties may seek a more suitable injunction.

Verbatim: “Given the uncertainty of California law, we take it as a given that the injunction here continues significantly to restrain petitioners’ speech, presenting an ongoing federal controversy. … Since picketing Cochran and his law offices while engaging in injunction-forbidden speech could no longer achieve the objectives that the trial court had in mind (i.e., coercing Cochran to pay a ‘tribute’ for desisting in this activity), 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.”

Lineup: Justice Stephen Breyer wrote for an 7-2 majority. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, arguing that the case should have been dismissed as moot.

First Amendment impact: Free-speech advocates will likely cheer the Court’s decision that the injunction is invalid. But, as Thomas points out in his dissent, “the court’s decision invites the doubts it seeks to avoid.” This is because Breyer based his invalidation of the injunction on the changed circumstances resulting from Cochran’s death — not for broad First Amendment reasons relating to the injunction itself. In addition, by sending the case back to California courts with an invitation to parties to seek a narrower injunction, Breyer holds open the possibility that some kind of injunction against Tory might be valid, which media organizations that filed briefs in the case would dispute.