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The Supreme Court considers a California court's attempt at turning a libel verdict into a permanent prior restraint From the…

The Supreme Court considers a California court’s attempt at turning a libel verdict into a permanent prior restraint

From the Winter 2005 issue of The News Media & The Law, page 25.

By Kimberley Keyes

The case of a disgruntled former client of celebrity lawyer Johnnie Cochran whose speech was muzzled after he picketed Cochran’s office and a Los Angeles courthouse with signs like “Johnnie is a crook, a liar and a thief” has reached the U.S. Supreme Court.

The high court will hear arguments March 22 in the dispute between Ulysses Tory and Cochran, a rare prior restraint case for the court and one of the few First Amendment cases it is considering this term. The court’s ruling will center on the constitutionality of a California court order barring Tory, who was found liable for defaming Cochran, from ever uttering another word about him.

Tory v. Cochran is just one of three prior restraint cases involving individuals who criticized public officials &#151 or, in the case of Cochran, a public figure &#151 that have emerged in federal and state appellate courts in recent months. Though none of the cases involve the media, all could have First Amendment implications for the press.

In a case similar to Cochran’s, the Nebraska Court of Appeals in December upheld a prior restraint against disgruntled citizen Tim Campbell that prohibited him from republishing specific allegations he made against a city official that a jury found to be defamatory. Campbell has asked the Nebraska Supreme Court to review the decision, which could be affected by the U.S. Supreme Court’s ruling in Tory v. Cochran.

On a more encouraging note for the First Amendment, a self-styled “citizen reporter” scored a victory in October when the U.S. Court of Appeals in New York (2nd Cir.) ruled that a broad no-trespassing order barring him from court property &#151 issued after he displayed signs outside a Vermont courthouse criticizing a local judge &#151 violated the man’s rights of free expression and judicial access. Last month, after rehearing the case, the appeals court told the trial court to award summary judgment to Scott Huminski in his civil rights suit to prevent a court official and local sheriff from ever issuing a similar order against him.

Muzzling a Cochran critic

In the late 1990s, after Cochran gained fame as one of O. J. Simpson’s defense lawyers, Tory and others began picketing Cochran’s office and a Los Angeles courthouse. They carried signs with various messages, including: “Atty Cochran, we have no use for illegal abuse,” “Unless you have O.J.’s millions &#151 you’ll be screwed if you use J.L. Cochran, Esq.,” and “Attn: Attorney Johnnie L. Cochran, Jr., flaunting and flossing, it’s the people he’s costing.”

Around the same time, Tory &#151 whose grudge dates back to a 1983 personal injury action from which Cochran withdrew as his attorney &#151 wrote to Cochran demanding the return of $6,500 that Tory claimed to have paid to another lawyer who rented space from Cochran. Tory also demanded an additional $15,000 to “compensate” him “for his time and efforts to bring this entire matter to closure.”

In response, Cochran sued Tory in October 2000 for defamation and invasion of privacy. Tory’s “band of picketers” only became more vocal, adding banners to their display and chanting obscenities. Cochran sought no money damages from Tory, just a court order to stop him. A Los Angeles Superior Court judge granted Cochran a preliminary injunction. Following a trial in March 2002, the court found that Tory’s statements were false and made with actual malice.

Los Angeles Superior Court Judge Ronald M. Sohigian then permanently ordered Tory, his employees, agents, representatives, and “co-conspirator[s],” including his wife, not to do any of the following in public: picket Cochran or his law firm; display signs, placards or other written or printed materials about Cochran or his law firm; or utter statements about Cochran or Cochran’s law firm. The court further ordered Tory and company not to contact, harass, threaten, or stalk Cochran, nor to disturb his peace, keep him under surveillance, or block his movements.

In October 2003, the California Court of Appeal for the Second District upheld the lower court’s order after a terse analysis of the issues. Relying heavily on a California Supreme Court case, Aguilar v. Davis Rent-A-Car System, the appellate court held that an injunction against defamatory speech is not an impermissible prior restraint under either the federal or state constitutions.

The court rejected Tory’s claim that the order prohibiting any statements whatsoever about Cochran was unconstitutionally overbroad, distinguishing cases that hold otherwise because they involved temporary injunctions and thus “have nothing to do with the permanent injunction issued in this case.” After the California Supreme Court denied further appellate review, Tory asked the U.S. Supreme Court to review the case.

The single issue before the high court is whether “a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.”

Constitutional law expert Erwin Chemerinsky, a Duke University law professor who will argue the case for Tory, said the California court must comply with strict First Amendment principles. It does not matter that Tory is not a member of the press, he said.

“What he’s saying is, the First Amendment precludes injunctive relief in defamation cases,” Chemerinsky said in a telephone interview. “Whatever the identity of the speaker, at the very least any injunction has to be narrowly tailored, and this one isn’t.”

Cochran argues that Tory’s actions amount to extortion, a claim Chemerinsky rejected.

“Our reply to that is, this isn’t extortion. Cochran didn’t sue for extortion, he didn’t file a complaint with the police for extortion. He could have &#151 the court would certainly take seriously a complaint from Johnnie Cochran,” Chemerinsky said. “The Court of Appeal didn’t use the word extortion. Johnnie Cochran sued for defamation. This is going to therefore turn on the First Amendment standards for defamation.”

Numerous media groups, including The Reporters Committee for Freedom of the Press, asked the Supreme Court in a friend-of-the-court brief to declare defamation-based injunctions unconstitutional. Although the case does not involve the press directly, if allowed to stand the California court’s decision could potentially affect the freedom to publish news.

“We filed this because we were concerned that there was a sort of chipping away at the prior restraint doctrine, and that it would bleed over into the press, so we wanted to preserve and strengthen the prior restraint doctrine as it applies to the press,” said attorney Susan E. Seager of Davis Wright Tremaine in Los Angeles, who represents the media groups.

The friend-of-the-court brief argues that prior restraints are “antithetical” to longstanding First Amendment rights, and that this case fails to present the “extraordinary circumstances” needed to justify a prior restraint. It also notes that, for at least three decades, the court has strongly protected speech about public figures.

In 1931, the U.S. Supreme Court in Near v. Minnesota invalidated a prior restraint that a court issued against a newspaper publisher for libeling various public officials.

Near v. Minnesota clearly says that injunctions are not an appropriate remedy in defamation cases, and yet this court issued an injunction as a remedy in a defamation case,” Chemerinsky said.

It should not matter that the libeled persons in that case were public officials and Cochran is not, said Chemerinsky, pointing out that the Supreme Court has held in cases such as 1974’s Gertz v. Welch that “public officials and public figures are treated the same for defamation purposes.”

“No one contests in this case that Johnnie Cochran is the quintessential public figure,” he said.

Lower courts are divided on whether an injunction is a permissible remedy for speech that a judge or jury has found to be defamatory. Chemerinsky surmised that the split among lower courts on the issue interested the Supreme Court enough to take the case.

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.

“I think that’s flat-out wrong,” Chemerinsky said.

“Here, what you have is an extremely broad injunction. Tory can’t say anything about Johnnie Cochran ever again in any public forum. Tory’s wife, who’s not a party to the lawsuit, can’t say anything about Johnnie Cochran,” Chemerinsky said. “By the terms of the injunction, even my brief could be held in contempt, because I am an agent of Ulysses Tory and I’m saying something in a public forum.”

Chemerinsky, who taught at the University of Southern California Law School for 21 years, acknowledged that California &#151 where secrecy in the Michael Jackson case continues to make headlines &#151 may be “particularly sympathetic to the privacy interests of celebrities.”

“Whether that is reflected in this judge’s decision or it’s just idiosyncratic to this judge, I don’t know,” he said. “The particular trial court judge here I think clearly violated the First Amendment with an overbroad prior restraint.”

Republishing defamatory speech

Like the California Court of Appeal in Tory, the Nebraska Court of Appeals in December relied on a decision from its own state Supreme Court to uphold an injunction against defamatory speech.

Unhappy with the outcome of a dispute between his parents and the city over construction of a sidewalk in their subdivision several years earlier, Tim Campbell of Norfolk, Neb., began filing public notices in the district court clerk’s office that harshly criticized city administrator Michael Nolan. Specifically, Campbell alleged that Nolan conducted “scams involving deceit and collusion,” that he “stole,” “extorted” and “embezzled,” and that he was a “thief” and a “con artist.” Campbell also claimed Nolan stayed in office through “oppression, deception [and] intimidation.”

After Campbell did not respond to a request for retractions, Nolan sued in May 2002, claiming Campbell’s statements in three recorded notices defamed him and invaded his privacy. He sought damages and a permanent injunction against Campbell. After Campbell filed an incomplete answer to the complaint, then failed to respond to several requests to supplement his answer and to respond to discovery requests for information, the court granted Nolan’s request for summary judgment on the libel and invasion of privacy claims. However, it denied his request for an injunction until damages were determined at trial.

A jury in March 2003 awarded Nolan $78,000 for both claims. Campbell, who represented himself, asked for a new trial. Madison County District Court Judge Patrick G. Rogers denied Campbell’s request and issued a two-part permanent injunction in April 2003.

The first part of the order forbade Campbell from ever “republishing, displaying or delivering” any publication pertaining to Nolan that had been published before the trial. The second part prohibited him from ever publishing “any new material” about Nolan that contained specific words and phrases, including “con artist,” “thief,” “collusion and grand theft by deception under color of law,” “dishonest” and “fleeced.”

Campbell, now represented by attorney Elaine A. Waggoner of Lincoln, Neb., appealed to the Nebraska Court of Appeals, arguing that the trial court erred in permanently prohibiting him from using “certain terminology” about Nolan.

The intermediate appellate court upheld the republishing portion of the injunction, relying primarily on a 1997 Nebraska Supreme Court case, Sid Dillon Chevrolet v. Sullivan, involving a dissatisfied car dealership customer named Morton Sullivan who “flood[ed] the media and public” with announcements about the plaintiff’s dishonesty. The state high court held that absent a prior finding that the publication is false or a misleading representation of fact, a court cannot issue a prior restraint except in specific cases in which publication would violate a trust or contract or aid another illegal act, or if injunctive relief is essential to preserve a property right.

The Sid Dillon court concluded that the injunction in that case was a prior restraint on Sullivan’s right of free speech because “a jury had not yet determined whether Sullivan’s allegations were false or misleading representations of fact,” and because the publication did not meet any of the other criteria necessary to justify an injunction.

In Campbell’s case, the Nebraska Court of Appeals ruled that Campbell’s statements about Nolan were not protected under the First Amendment because &#151 unlike the statements in Sid Dillon &#151 the trial court had found them to be libelous. “Therefore, the rationale that enjoining a libel constitutes an unconstitutional prior restraint on speech is not applicable here,” the court stated, ruling that the trial court did not err in issuing the order.

But after concluding the injunction was not a prior restraint, the court went on to apply a traditional prior restraint analysis, to “determine whether the injunction, as written, was narrowly drawn so as not to offend the constitutional prohibition against prior restraint of speech.”

Deeming the injunction overbroad, the court limited it to the precise statements that were already found libelous. The court rewrote the injunction to forbid Campbell from republishing “in any fashion” the publications received in the Madison County clerk’s office on April 3, April 11 and May 15, 2002 . It further prohibited him from publishing specific phrases quoted in a Jan. 22, 2003, district court order “which . . . it found were libelous and published with ‘actual malice,'” without listing the prohibited phrases.

The court agreed with Campbell that the second part of the injunction wrongly restricted his right to speak freely about Nolan as a city official in other contexts. “Subsequent events and issues, which we cannot foresee, could make Campbell’s use of the prohibited words ‘collusion,’ ‘dishonest,’ ‘oppression,’ ‘deception,’ or ‘fleeced’ in reference to Nolan lawful protected speech,” the court stated. Holding that the second part of the injunction was therefore “an overly broad prior restraint,” the court dissolved it.

In January, Campbell asked the Nebraska Supreme Court to review the decision. As of late January, the court had not decided whether to grant the request. A decision by the U.S. Supreme Court in Tory v. Cochran, however, is likely to affect the Nebraska case since they raise similar First Amendment issues.

Wheels of justice

A third case decided recently has a more favorable outcome for freedom of expression. It began in 1998, after Vermont District Court Judge Nancy Corsones allowed the state to vacate a plea agreement and reinstate obstruction of justice charges against Scott Huminski. A self-styled “citizen reporter,” Huminski filed several complaints against the judge with the state’s judicial conduct board.

In subsequent letters to Vermont officials, Huminski complained bitterly about his treatment by the state and warned he would have to “take the law into [his] own hands and initiate activities that will get national media attention.”

In May 1999, Huminski parked outside a Rutland courthouse where Corsones was presiding and displayed three signs on his van. One called Corsones a “butcher of the Constitution,” and listed her numerous alleged transgressions, including that she “strips defendants of the right to defense counsel,” “punishes protected expression with criminal charges,” and “ignores and encourages prosecutorial violations of the Code of Professional Responsibility.” Another sign displayed a copy of her opinion vacating Huminski’s plea agreement, and the third displayed another state’s criminal court decision and three motions by Huminski.

After alerting Corsones, court officials barred Huminski from Rutland District Court property, including parking lots. Huminski sued Corsones and another state judge, M. Patricia Zimmerman, as well as Rutland District Court Manager Karen Predom, Rutland County Sheriff R.J. Elrick, and the sheriff’s department, for violating his First Amendment rights of free speech and access to courts. The complaint sought $500,000 in damages, according to Ronnie London of Davis Wright Tremaine, LLP, one of Huminski’s lawyers.

After a federal district court in Brattleboro ruled on the parties’ motions for summary judgment in 2002, both sides appealed. A three-judge panel of the U.S. Court of Appeals in New York (2nd Cir.) in October invalidated the no-trespassing order as overly broad and concluded that it violated Huminski’s rights of free expression and access to the courts. Although Rutland court officials had issued the no-trespassing notice because they viewed Huminski as a potential security risk, the Second Circuit deemed such a response “wildly disproportionate” to any perceived threat he may have posed.

The ruling was a mixed victory for Huminski. Although the court determined he had viable First Amendment claims, it nevertheless ruled that Corsones and Zimmerman were immune from suit. But Huminski’s claim for damages for violating his right to free speech may proceed against Predom and Elrick.

The court reinstated a preliminary injunction that restrains the defendants &#151 except Corsones and Zimmerman &#151 from issuing or enforcing no-trespassing notices against him solely in retaliation for his “public expression of his political opinions.” The court also permitted Huminski to seek a permanent order to that end. On rehearing, the Second Circuit amended its decision in January and instructed the trial court to grant summary judgment in favor of Huminski in his claims for injunctive and declaratory relief.

“We’re at the point where we can start dealing with damages,” London said in January.

Huminski said in a telephone interview in October that he had been “chased out” of Vermont, which he described as “probably one of the most corrupt states in the Union,” and now lives in North Carolina.