From the Summer 2005 issue of The News Media & The Law, page 40.
By Kimberley Keyes
Although a May U.S. Supreme Court decision left the door “wide open” for celebrity lawyer Johnnie Cochran’s widow to seek a gag order against a disgruntled former client of Cochran’s, Ulysses Tory apparently has remained quiet, according to Cochran’s attorney.
The high court decided 7-2 that a gag order forbidding Tory from ever uttering another word about Cochran was an unconstitutional prior restraint on speech violating the First Amendment.
A California trial judge had issued the permanent injunction in March 2002 after finding that Tory defamed Cochran by picketing outside his law office with signs such as “Unless you have O.J.’s Millions — You’ll be Screwed if You Use J. L. Cochran, Esq.” and “Attn: Johnnie L. Cochran Jr., Flaunting and Flossing, It’s the People He’s Costing.” Tory also sent Cochran letters demanding money.
Cochran — who sought no monetary damages against Tory, only a court order to silence him — died two months before the Supreme Court ruled.
Although it invalidated the gag order as overbroad, the high court allowed a request 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.
As of mid-July, Sylvia Cochran had not pursued any legal action against Tory, whose grudge against Johnnie Cochran stemmed from the lawyer’s representation of him in a 1980s personal injury case.
“The answer is, we hope Mr. Tory goes back to where he came from and leaves us alone,” said Cochran’s attorney, Jonathan B. Cole of Nemecek & Cole in Sherman Oaks, Calif. “At this point in time we don’t know what Mr. Tory is up to, and if he doesn’t bother us, we’re not going to deal with him.”
If Tory chooses to resume picketing, Cole said he assumes Sylvia Cochran or her late husband’s law firm “will exercise whatever remedy they believe is appropriate.”
Cochran’s death raised thorny procedural issues in the case. In a brief dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, criticized the court for not dismissing the appeal.
“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.”
The fact that the court proceeded with an opinion may reflect the severity of the constitutional violation, said Ronald K.L. Collins of the First Amendment Center in Arlington, Va.
“It seems to me that the First Amendment error by the lower court was so egregious that this court was willing to trek through a procedural thicket to cure that First Amendment problem,” Collins said.
The majority opinion said Cochran’s death, while not mooting the entire case, made it “unnecessary” to analyze the actual question presented: 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.”
Cole, who said he wasn’t “particularly pleased” with the opinion, said he agreed with the approach recommended by the dissent. Nevertheless, he viewed the ruling as a victory since the court declined to “make some sort of global statement that you could never get injunctive relief in a defamation action,” as Tory’s lawyers had hoped, he said.
The gag order, which Cole drafted and the California Court of Appeal upheld, prohibited Tory, his associate Ruth 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.”
The case probably would have turned out differently if Cochran had survived, Cole said.
“I believe had Johnnie lived, we would’ve gotten a decision that might have indicated that there was a portion of my injunction which was overbroad, but otherwise a finding that injunctive relief is in fact available in a defamation action under certain circumstances,” he said.
“Even if Cochran had remained [alive], the court never would have reached the larger First Amendment issue as to whether permanent injunctive relief can be had where money damages do not give the plaintiff the relief he seeks to protect his reputation,” he said. “Given the posture of this case and the overbreadth problems, there was no way they were ever going to reach that question. That is a very tough question. I don’t know how they would have come out on that.”