Supreme Court indicates prior restraint may be 'overbroad'

• A disgruntled former client of Johnnie Cochran claimed a court order muzzling his speech violates the First Amendment and should be overturned by the high court.

March 22, 2005 — The Supreme Court hinted Tuesday that it could invalidate at least part of a California trial judge’s order forbidding a disgruntled former client of Johnnie Cochran from ever saying another word about the celebrity lawyer.

Several justices, including Sandra Day O’Connor and Antonin Scalia, characterized the injunction against Ulysses Tory as overly broad during a one-hour argument in Tory v. Cochran, one of the few First Amendment cases it is considering this term.

“The injunction on its face . . . has the appearance of being overbroad,” O’Connor said.

The order at issue prohibits Tory from picketing, displaying signs, or orally uttering statements about Cochran or his law firm in any “public forum.” Tory, whom Cochran successfully sued for defamation for calling Cochran “a crook, a liar and a thief,” among other insults, claims the injunction is an unconstitutional prior restraint on his speech.

Justice Anthony Kennedy said the injunction “chilled” Tory’s speech because uttering even non-defamatory statements about Cochran could subject him to a contempt order.

Cochran’s attorney, Jonathan B. Cole, who admitted to the court that he helped craft the order, suggested the high court could remand the case to the trial court with instructions for narrowing the injunction.

Asked if he was conceding that the order was overbroad, Cole said, “I’m gleaning the impression this court thinks it’s overbroad.”

“You’re very perceptive,” Justice Scalia replied.

In response to a question from Justice David Souter, Cole said he would defend the order “in its entirety.” Later, Breyer asked Cole whether the injunction as worded would prevent Tory from saying positive things about Cochran. The justice followed up by venturing that Cole would have said the order only barred defamatory statements of the kind Tory was found to have made.

“Now I’ve said it, and it’s too late for you to say it,” Breyer admonished, eliciting laughter from spectators.

Duke University law professor Erwin Chemerinsky, who argued the case for Tory, pointed out that the court has never upheld a prior restraint as a remedy for defamation — although Justice John Paul Stevens pointed out that it had never explicitly rejected it either.

Tory’s grudge against Cochran apparently stemmed from a 1983 personal injury case in which Cochran withdrew as Tory’s attorney. In July 1995, Tory wrote to Cochran — by then famous as one of O.J. Simpson’s defense lawyers — demanding money he said Cochran owed him.

When Cochran refused Tory’s demands, Tory and some of his associates began picketing outside Cochran’s law office and a Los Angeles courthouse, carrying signs such as, “Unless you have O.J.’s millions — you’ll be screwed if you use J. L. Cochran, Esq.”

Cochran sued in 2000 for defamation and won, although an invasion of privacy claim was dismissed. He sought no money damages, only an order permanently stopping Tory from saying anything about him.

California’s Second District Court of Appeal upheld the trial court order, holding that once a court determines that certain speech is unprotected by the First Amendment, “an injunction restraining that speech does not constitute an impermissible prior restraint.” The California Supreme Court refused to hear the case, prompting Tory to appeal to the U.S. Supreme Court.

Numerous media organizations, including The Reporters Committee for Freedom of the Press, submitted a friend-of-the-court brief urging the court to declare defamation-based injunctions unconstitutional. Although the case did not directly involve the press, the court’s ruling could have First Amendment implications for the media, according to attorney Susan Seager of Davis Wright Tremaine, which represented the media groups.

The Supreme Court will rule by late June when the current term is scheduled to end.

(Tory v. Cochran, Media Counsel: Kelli L. Sager, Davis Wright Tremaine, Los Angeles) — KK

© 2005 The Reporters Committee for Freedom of the Press

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