Two do-not-publish orders recently nullified, while a complete gag on speech awaits high court review
From the Spring 2005 issue of The News Media & The Law, page 14.
By Kimberley Keyes
In a year that saw a number of prior restraint controversies, March 22 stood out.
The U.S. Supreme Court heard arguments that day in Tory v. Cochran, one of the handful of First Amendment cases it is considering this term, while federal appeals courts in New York and Atlanta invalidated restraints on the news media.
One week after the high court heard arguments, Johnnie Cochran died of a brain tumor, sparking a legal debate over how his death affects the case. At issue in Tory v. Cochran is the constitutionality of a prior restraint on speech as a remedy for defamation. A Los Angeles trial court judge had ordered Ulysses Tory and his wife, Ruth Craft, never to utter another word about Cochran or his law firm in public. Tory, a disgruntled former client who was previously found liable for defaming Cochran, claimed the prior restraint violates the First Amendment.
The Supreme Court accepted the case for review after the California Supreme Court declined to consider whether an intermediate appellate court was correct in upholding the trial court order.
Within weeks of Cochran’s death at age 67, Cochran’s lawyers filed a “suggestion of death” with the Supreme Court arguing that the case is moot. Attorney Jonathan B. Cole pointed out that the question presented to the court is whether a permanent injunction against speech is a proper remedy in a defamation action. Under the law, a dead person cannot be defamed.
Tory’s legal team, led by Duke University law professor Erwin Chemerinsky, filed a response two days later on April 13 , urging the court not to dismiss the case.
“This case is not moot because the California Superior Court’s injunction remains in effect and Ulysses Tory and Ruth Craft are still permanently enjoined from saying or publishing anything about Johnnie Cochran or the Law Offices of Johnnie Cochran in ‘any public forum,'” the petitioners wrote in their filing to the court.
Indeed, Judge Ronald M. Sohigian’s order against Tory — who had marched outside Cochran’s law office carrying signs that said, “Johnnie is a crook, a liar and a thief,” among other things — seems, as Justice Antonin Scalia asserted during oral arguments, to prevent Tory from speaking even on a matter of public concern, such as “Johnnie Cochran shouldn’t be elected mayor of San Francisco.”
The U.S. Supreme Court hinted during arguments that it believes the order is “clearly overbroad,” in the words of Justice Sandra Day O’Connor.
The fact that the court asked for briefs on the mootness issue in the wake of Cochran’s death indicates it is considering the question carefully, said Ronald K.L. Collins, a scholar with the First Amendment Center in Arlington, Va.
“I suspect this tells you there are certain members of the court who want to hold on to that opinion,” he said. He predicted that if the court addresses the merits of the case, a decision on the order’s overbreadth would be unanimous.
Even if the court decides the case is moot, “and Tory went out and said, ‘This law firm will rip you off from now until eternity,’ I doubt that they can make that [injunction] stick a second time,” Collins said. “But I would have doubted they could make that stick the first time.”
The court will issue a ruling by late June when the current term is scheduled to end.
On the same day as the Tory v. Cochran arguments, two separate federal appeals courts invalidated restraints on the news media.
The U.S. Court of Appeals in Manhattan (2nd Cir.) said a federal judge in New York violated the First Amendment when — in a misguided attempt to avoid a Dennis Kozlowski-style mistrial — he forbade the press from publishing the names of potential jurors said aloud in open court during the trial of former Credit Suisse First Boston executive Frank Quattrone on obstruction charges.
During jury selection in the retrial of Quattrone in April 2004, U.S. District Judge Richard Owen stated the names of 12 potential jurors in open court. He then announced that “it’s an order of this court that no member of a press or media organization is to divulge at any time until further order of this court the name of any prospective or selected juror.”
A coalition of media organizations immediately objected. At a hearing the next day, Owen explained he was trying to avoid what happened in the Kozlowski case less than one week earlier. The former Tyco executive’s six-month trial had ended in a mistrial after newspapers published the name of a juror who allegedly made an “OK” gesture to the defense. The juror reported receiving threats after her identity was publicized, prompting the judge to scrap the trial.
When Owen refused to lift his ban in Quattrone, 12 press groups, including The New York Times, The Washington Post and The Associated Press, appealed to the Second Circuit. Lawyer Floyd Abrams, who represented the media coalition, told the Times that the order was a “direct prior restraint on publication, which is extremely unlikely to meet First Amendment standards.
“Our courts have basically all but totally banned prior restraints on the publication of information by newspapers, and I don’t see any basis for concluding that this restraint would be held constitutional,” Abrams said at the time.
He was right. A three-judge panel of the federal appeals court ruled March 22 that the prior restraint imposed by Owen against the media violated both the free speech and free press clauses of the First Amendment.
“While we appreciate the district court’s efforts to avoid an unfair or disorderly trial, the freedoms of speech and press invariably must inform a court’s choice of remedy,” Judge Sonia Sotomayor wrote for the panel.
Owen “based the prior restraint entirely on the incidents of the Kozlowski trial,” and failed to consider other alternatives to protect Quattrone’s right to a fair trial — such as changing the venue or sequestering the jury — as required by the First Amendment, she said.
Forbidding the media from publishing information revealed in open court was “an independent constitutional harm . . . [that] rendered the district court’s violation of the First Amendment even more plain,” the panel ruled, since anyone else in the courtroom could have heard the jurors’ names and disclosed them to the world.
Finally, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled March 22 in Cooper v. Dillon that a Florida law prohibiting leaks by any participant in an internal police investigation — including the person who filed the complaint — violates the First Amendment.
Finding oneself at odds with the local police department is nothing new for a small-town journalist. But Dennis Reeves Cooper, editor and publisher of the weekly Key West The Newspaper, was actually arrested after he reported in his paper that he had filed a complaint against a certain Key West police officer.
Then-Police Chief Gordon Dillon, who had been given 45 days by the Florida Department of Law Enforcement to investigate Cooper’s complaint, obtained a warrant for Dillon’s arrest on the same day that the newsman published a commentary urging the chief to “tell the truth . . . and let the chips fall where they may.”
Dillon charged Cooper with violating Florida law, chapter 112533(4), for reporting the name of the officer under investigation and other details of the probe. The statute makes it a misdemeanor for anyone who participates in a law enforcement agency’s internal investigation to disclose any information learned as a result of the investigation before it becomes public record.
“This was just a case of a publisher publishing the truth,” Cooper told The Associated Press.
Cooper, aided by the Florida chapter of the American Civil Liberties Union, sued Dillon for enforcing the law against him, claiming it imposed a prior restraint on his speech in violation of the First Amendment. A federal district judge dismissed the suit, finding the law was content-neutral. Cooper appealed to the 11th Circuit.
The appeals court determined that the law was not a prior restraint because it punished Cooper after publication, rather than silencing him “before he could speak.” It cited CBS v. Davis, a 1994 in-chambers opinion by U.S. Supreme Court Justice Harry Blackmun in which the court, quoting Nebraska Press Ass’n v. Stuart, distinguished between a post-publication threat of a criminal or civil penalty that “chills” speech, and a prior restraint that “freezes” it. (See sidebar, page 15)
Nevertheless, the law was still invalid because it imposed a content-based restriction on publication without a compelling enough government interest, the 11th Circuit held. The three state interests cited by Dillon — shielding witnesses from influential information, protecting the reputations of wrongfully accused officers, and preserving the privacy interests of participants in the investigation — “are not sufficiently compelling to justify the statute’s abridgement of First Amendment freedoms,” Judge Stanley F. Birch Jr. wrote for the three-judge panel.
The ruling paved the way for Cooper to proceed with his lawsuit against the city of Key West for violating his civil rights.