Supreme Court appears unsympathetic to famed attorney’s plight

Wednesday, March 23, 2005

Editor’s note: Johnnie Cochran died March 29. However, his death does not automatically make Tory v. Cochran moot, because the injunction at issue in the case bars disgruntled former client Ulysses Tory from picketing Cochran’s law firm and from talking about Cochran forever — both activities that could continue in spite of his death. The Supreme Court on March 30 asked both sides for their views on the effect of Cochran’s death on the case.

WASHINGTON — It looks like famed lawyer Johnnie Cochran won't be ridding himself of his personal nemesis anytime soon.

The Supreme Court appeared roundly unsympathetic yesterday as a lawyer for Cochran tried to defend an injunction issued by a California judge against Ulysses Tory, a disgruntled former client who picketed outside Cochran's Los Angeles office with signs describing him as a liar, cheat and worse.

The injunction bars Tory, along with his agents and representatives, from picketing or even speaking about Cochran in any public forum, apparently forever. A California appeals court upheld the injunction and Tory, backed by numerous press and free-speech organizations, asked the Supreme Court to strike it down in Tory v. Cochran.

Cochran's lawyer, Jonathan Cole, portrayed the injunction as Cochran's only possible remedy for years of verbal abuse and attempted extortion by Tory. Suing Tory for defamation afterward would yield little in damages from Tory, who has few assets.

But several justices attacked his argument, with Justice Sandra Day O'Connor swiftly invoking Near v. Minnesota, the classic 1931 ruling that made prior restraint of speech a constitutional evil. “You can't square it with the Near case at all,” O'Connor told Cole. “It's clearly overbroad. What are you going to do about it?”

Cole, sensing defeat, started shedding several sections of the injunction that were clearly speech-related and overbroad, but he did not appear to have helped himself. Justice Anthony Kennedy said even a narrower injunction would chill speech. Cole tried repeatedly to return to the argument that Tory's picketing was part of an extortion scheme in which Tory said he would stop picketing if Cochran paid him money.

Chief Justice William Rehnquist said that what Tory had done was “a far cry” from the classic kind of extortion threat: “Give me $5 million, or I'll shoot you.”

Tory's lawyer, Erwin Chemerinsky, described the injunction as an unprecedented prior restraint on speech that should be protected by the First Amendment. Upholding the injunction, Chemerinsky warned, would lead other public figures to obtain similar injunctions, which “will become the norm.”

Justice David Souter was the first of several justices to appear sympathetic toward Tory and Chemerinsky. “You're in trouble, too,” Souter told Chemerinsky, referring to the fact that as Tory's lawyer, Chemerinsky was also covered by the injunction. Chemerinsky agreed that he could be held in contempt for talking about Cochran before the justices.

Justice Stephen Breyer seemed slightly troubled as to how to strike down the injunction without also endangering court injunctions and protective orders aimed at preventing domestic violence and sexual harassment, which may also contain elements of speech. Justice Antonin Scalia and others also wondered if poor people who defame public figures would in effect be “judgment-proof” because suing for defamation would yield little or no money in damage awards.

But Chemerinsky insisted that Tory had not defamed Cochran, and in any event the injunction was so broadly worded that it endangered freedom of speech in ways that other kinds of injunctions would not match. Chemerinsky also said that if Cochran really believed extortion was involved, he could file a criminal complaint against Tory.

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