NEWS MEDIA UPDATE · U.S. SUPREME COURT · Prior Restraints · May 31, 2005
High court overturns restraining order on protester’s speech
May 31, 2005 · A gag order forbidding a disgruntled former client from ever uttering another word about lawyer Johnnie Cochran is an unconstitutional prior restraint on speech, the U.S. Supreme Court ruled today.
The high court decided 7-2 that Cochran’s death in March — one week after oral arguments — did not moot the case since the gag order against former client Ulysses Tory and Ruth Craft remained in effect. But the court said Cochran’s death made it “unnecessary” to analyze the question presented, namely whether the First Amendment forbids a permanent injunction against speech as a remedy for defamation when the plaintiff is a public figure.
Instead, the court pointed out that the underlying rationale for the order — to prevent Tory from trying to extort money from Cochran — had all but vanished.
“Consequently the injunction, as written, now amounts to an overly broad prior restraint on speech, lacking plausible justification,” Justice Stephen Breyer wrote for the majority. “As such, the Constitution forbids it.”
The gag order, which was upheld by the California Court of Appeal, prohibited Tory, Craft, and their “agents” or “representatives” from saying anything about Cochran or his law firm “in any public forum.” The U.S. Supreme Court, which had hinted during oral arguments March 22 that the order was unconstitutionally overbroad, vacated the California court’s judgment and sent the case back for “proceedings not inconsistent with this opinion.”
Duke Law School professor Erwin Chemerinsky, who represented Tory before the high court, told The Associated Press that the ruling “clearly reaffirms that any injunctions against speech, in a defamation case, have to be narrowly drawn.”
In a brief but pointed dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, criticized the court for not dismissing the appeal after Cochran died.
“Whether or not Johnnie Cochran’s death moots this case, it certainly renders the case an inappropriate vehicle for resolving the question presented,” Thomas wrote. He said he would have dismissed the appeal as “improvidently granted.”
It is unclear whether the case is now over. The high court allowed a motion to substitute Cochran’s widow, Sylvia, as a party to the case, enabling her to seek another gag order. “We express no view on the constitutional validity of any such new relief, tailored to these changed circumstances, should it be entered,” the court stated. In his dissent, Thomas said the court “only invites further litigation by pronouncing that ‘injunctive relief may still be warranted..'”
Cochran had sought the order in 2000 to stop Tory and his associates from picketing outside Cochran’s law office with signs such as “Unless you have O.J.’s millions — you’ll be screwed if you use J. L. Cochran, Esq.” The picketing began after Cochran refused Tory’s requests for money he claimed Cochran owed him. A California trial court issued the order after finding that Tory had defamed Cochran.
California’s Second District Court of Appeal upheld the trial court order, ruling that it was not a prior restraint. The California Supreme Court refused to hear the case, prompting Tory to appeal to the U.S. Supreme Court.
Several media groups, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief with the U.S. Supreme Court asking it to declare defamation-based injunctions unconstitutional. Although the case did not involve the press directly, the California court’s decision could have affected the freedom to publish news.
(Tory v. Cochran) — KK