Tory v. Cochran


Oral argument: March 22
Appealed from: The Court of Appeal of the State of California, Second Appellate District, Division One

First Amendment, Free Speech, Permanent Injunction against Speech, Defamation

In 1983, Ulysses Tory retained Johnnie L. Cochran, Jr. as his attorney in a personal injury lawsuit. Dissatisfied with Cochran's manner of representation, Tory complained that Cochran was conspiring with the City of Los Angeles against him. Tory threatened Cochran and claimed that he would "settle" his conspiracy claims against Cochran if Cochran quickly paid him $10 million…." Cochran consequently withdrew as Tory's lawyer.  Tory made subsequent requests for money, which Cochran ignored. 

In the 1990's, Tory and a group of people began picketing outside Cochran's office and the Los Angeles Superior Court. Tory had brought the picketers to these locations. In 2000, Tory wrote to Cochran demanding more money.  In October of that year, Cochran filed this lawsuit against Tory and alleged causes of action for defamation and invasion of privacy. A preliminary injunction was granted and the case was tried in March 2002. The trial court held that Cochran was entitled to a permanent injunction.  The permanent injunction forever prohibits Tory from all future speech in any public forum, regardless of content or context, about Cochran, an admitted public figure. Tory appealed to the California Court of Appeal, which ultimately affirmed the permanent injunction decision of the lower court.  Now the United States Supreme Court must decide whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.

[Question(s) presented] | [Summary] | [Analysis]

Question(s) presented

Whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.

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Summary

In 1983, Ulysses Tory (Tory) and Javier Gutierrez (Gutierrez) retained Johnnie L. Cochran, Jr. (Cochran) as their attorney in a personal injury lawsuit against the City of Los Angeles. Cochran v. Tory, No. B159437, 2003 WL 22451378, at *1 (Cal.App. 2 Dist., 2003). Cochran filed the action and eventually settled Gutierrez's claim, but not Tory's. Id. Dissatisfied with Cochran's mode of representation, Tory wrote to Cochran, complaining that Cochran was conspiring with the City. Id. Tory claimed that he would "settle" his conspiracy claims against Cochran and "refrain from any public discussions of conspiracy or scandal" if Cochran quickly paid him $10 million…." Id. In response to Tory's actions, Cochran filed a motion to withdraw as Tory's lawyer, which was ultimately granted. Id. In 1995, Tory wrote to Cochran again and demanded that Cochran return money that Tory had paid to Earl E. Evans (Evans), a lawyer who had allegedly represented Tory and his wife, Ruth Craft (Craft) in family law matters; however, Cochran did not respond to this letter. Id.

In the late 1990's, Tory and others began picketing outside Cochran's office and outside the Los Angeles Superior Court. Id. Only one or two picketers, which included Tory, were former Cochran clients. Id. Tory had brought the picketers to Cochran's office and the courthouse, bought them lunch, and admitted that some of the picketers may have helped simply for the free lunch. Id. Once again, in 2000, as the picketing continued, Tory wrote to Cochran demanding $6,500 allegedly paid to Evans, as well as $15,000 from Cochran as compensation for Tory's "time and efforts to bring this entire matter to closure...." Id.

In October 2000, Cochran filed this lawsuit against Tory and alleged causes of action for defamation and invasion of privacy. Id. at *2. A preliminary injunction was granted and the case was tried in March 2002. Id. The trial court held that Cochran was entitled to a permanent injunction against Tory because Tory's statements were false and were made with knowledge of their falsity, "maliciously and with reckless disregard for the truth [and] for the purpose of inducing Cochran to pay Tory various amounts of money to which Tory was not entitled." Id. The permanent injunction forever prohibits Tory and Craft from speaking about Cochran, an admitted public figure, in a public forum, regardless of the content or context of the speech. Id.

Tory appealed to the California Court of Appeal, which ultimately affirmed the permanent injunction decision of the lower court.  See id at *4. In making its decision, the appellate court rejected Tory's argument that the permanent injunction was an overbroad prior restraint in violation of the First Amendment and the California Constitution. Id. at *2-3. The appeals court concluded that permanent injunctions on speech are not prior restraints and that the overbreadth doctrine does not apply. Id.

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Analysis

The only issue before the United States Supreme Court is whether a permanent injunction can be used to prohibit an individual from speaking about a public figure. The Supreme Court's decision could have enormous implications upon the world in which we currently live, where public figures are continuously berated by individuals and the public. If such persons were granted a right to enjoin such criticism, then the First Amendment right to free speech would be effectively nonexistent.  This result is largely avoided by the Constitution's prohibition of prior restraints on speech, meaning individuals and courts cannot prevent someone from exercising their free speech rights in the future. SeeNear v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). There are limited exceptions to the prohibition on prior restraints, namely where a compelling government interest is asserted and the restraint is narrowly tailored. See id.

The rules of prior restraint become unclear when the future speech being enjoined is allegedly defamatory. If the future speech is defamatory, then it is deemed to be unprotected under the First Amendment.  See Resp. Brief 19. In this case, the Supreme Court can finally resolve a growing issue where public figures and major corporations often enjoin their critics before they even speak. These lawsuits are commonly referred to as SLAPP suits, signifying "Strategic Lawsuits Against Public Participation." See Chad Baruch, 3 Tex. Wesleyan L. Rev. 55, 56 (1996). The Amicus Curiae brief of Michelangelo Delfino and Mary Day states that the Respondent has the same purpose as those who file SLAPP suits, which is to "silence the speaker by threatening a crushing legal battle that the individuals cannot afford" Brief Amicus Curiae of Michelangelo Delfino and Mary Day in Support of Petitioners, 5. There is a real sense of urgency in curtailing SLAPP suits because their popularity is growing among wealthy individuals and corporations who are simply seeking to quiet outspoken individuals who are often unable to pay money damages. See id.  Though this case doesn't directly involve a SLAPP suit, the Court is strongly urged by the Amicus Curiae to address the issue.

Since this case doesn't involve a SLAPP suit, the Supreme Court will be faced primarily with trying to determine how appropriate a permanent injunction is to remedy a successful defamation claim.  Considering that the Court is faced with a seventy-four year old precedent in Near v. Minnesota ex rel. Olson, where a permanent injunction was found to be an inappropriate remedy because of the First Amendment, the lower court's injunction will very likely not stand as it was issued. If the injunction were permitted to stand as is, then celebrities, political figures, and many others in the public sphere will have a right to enjoin any speech about them, negative or positive.  Essentially, the petitioner would be absolutely barred from speaking about the respondent in public space, even during private conversations in public places.  Pet. Brief 10. This result is almost too absurd to be a real possibility given the rights secured by the First Amendment, which is why the Supreme Court is expected to at least limit the injunction if they uphold it at all. See e.g. Resp. Brief 46; Medill School of Journalism, available at http://www.medill.northwestern.edu/~secure/docket/mt/archives/001814.php.

Discussion

The Supreme Court will first likely address whether a preliminary injunction, as a remedy in a defamation action, constitutes a prior restraint.  A prior restraint is a governmental restriction on speech before the speech is expressed.  See Black's Law Dictionary (8th ed. 2004).  The Supreme Court has held in the leading case of Near v. Minnesota that prior restraints are only allowed in the most limited of circumstances.  See Near v. Minnesota, 283 U.S. 697.  In Near, the lower court determined that defendant's newspaper was devoted to malicious and defamatory articles and prevented the defendant from ever publishing again.  See id.  The Supreme Court in Near held that such an injunction on future speech was unconstitutional.  See id.  In addition, in Vance v. Universal Amusement Co., the Supreme Court held that it was unconstitutional to enjoin a defendant from showing any films in the future based on the fact the defendant had shown obscene films in the past.  See Vance v. Universal Amusement Co., 445 U.S. 308 (1980).  The court stated that prohibiting future conduct based on present conduct constitutes a prior restraint and is unconstitutional under the First AmendmentSee id.  Applying these cases to the case at hand, it would seem that issuing a preliminary injunction against Tory and Craft is unconstitutional since the facts in the Cochran case are very similar to those in Near and Vance.  In the instant case, Tory and Craft are forbidden, by the injunction, from ever saying anything about Cochran.  The Supreme Court may view this as a future restraint based on present conduct, and label it a prior restraint that is unconstitutional.

However, not all injunctions that effect expression are necessarily prior restraints.  See Madsen v. Women's Health Center, Inc., 512 U.S. 753, 763, fn. 2 (1994); See also, Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973).  Rather, a prior restraint only exists where the government has regulated protected speechSee Ward v. Rock Against Racism, 491 U.S. 781, 812 (1989) (Justice Marshall, dissenting); See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).  Thus, the Supreme Court will have to consider whether the speech at issue in the Cochran case constitutes protected speech.  Tory's speech in Cochran was arguably made to extort money from Cochran, since Tory refused to cease his picketing attempts unless he was paid a monetary settlement from Cochran.  The Supreme Court may agree with the lower court and hold that Tory made defamatory statements about Cochran with the purpose of coercing Cochran to pay him money to stop making the statements.  Thus, it follows that the Court may decide that this is not protected speech under the First Amendment.

The Court will also have to decide whether an injunction is an appropriate remedy for defamation.  To date, the Court has never held a prior restraint as appropriate in a defamation action.  See Pet. Brief Historically, courts of equity have not had jurisdiction to enjoin defamation.  See Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742) ("For whether it is a libel against the public or private persons, the only method is to proceed at law").  However, the Supreme Court did consider granting an injunction for libel in Bill Johnson's Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731 (1983)Bill Johnson's Restaurants involved a lawsuit seeking an injunction and a temporary restraining order against picketing employees.  See id.  Among the causes of action against the employees was libel, and a temporary restraining order was issued in that case.  See id.

Another important facet to the Cochran case is the fact that Cochran is a public figure.  The fact that Cochran is a very public and prominent figure in society means that Cochran has special access to the media to rebut any statement made about him.  See, e.g., Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 164 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 337 (1974).  The Supreme Court has previously stressed the importance of speech about individuals who hold a prominent position in society.  See Curtis Publ'g Co. v. Butts, 388 U.S. 130,164 (1967).  Petitioners argue that the speech here is of great public concern since it concerns the relationships between lawyers and clients.  The respondents, however, argue that Tory's comments about Cochran were either lies, or else just bizarre, meaningless statements. 

The Supreme Court ultimately is faced with a balancing test in this case.  The Court first must decide the value and the degree to which Tory's speech is protectable.  Then, the court must weigh Tory's speech against the severity of the remedy sought and the fact that Cochran is a public figure.

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