Can a libel verdict be a permanent prior restraint?

Prior restraints on speech and publication “are the most serious and the least tolerable infringement on First Amendment rights,” the U.S. Supreme Court has said.  As such, they are “presumptively unconstitutional,” and carry a heavy burden to sustain.

Lower courts, however, are divided on whether an injunction is a permissible remedy for speech that a judge or jury has found to be defamatory. Some jurisdictions, such as California, say that such an order is not an unconstitutional "prior restraint," and therefore not subject to the requirement that prior restraints be narrowly tailored to prevent harm.  The theory, according to some courts, is that once a court has adjudicated a statement to be defamatory, an order prohibiting its future publication is not a "prior" restraint on protected speech. 

The U.S. Supreme Court was set to address this very issue in 2005, in the case of Tory v. Cochran.  Celebrity lawyer Johnnie Cochran won a libel verdict in California court against a disgruntled former client.  As part of the state court's decision, it barred Tory from making future statements about Cochran and his law firm.  When Tory appealed, the U.S. Supreme Court agreed to decide whether a permanent injunction against speech about a public figure is a permissible remedy for libel.  

However, the high court never reached that specific issue.  Johnnie Cochran died before the Court rendered a verdict in the case, changing the circumstances of the appeal.  Although the high court struck down the permanent injunction as it was originally entered, it did so on the grounds that the order was overly broad and not justified given the changed circumstances.  The Court  declined to address whether any new remedy would be constitutionally permissible.     

See "Gagging Gadflies" in the Winter 2005 edition of The News Media & The Law.