The Supreme Court Case Involving Johnnie Cochran:
Does The Controversy Survive His Death? And If So, Who Should Win?

By JULIE HILDEN
julhil@aol.com
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Tuesday, Apr. 12, 2005

Last month, the Supreme Court heard oral argument in the First Amendment case of Tory v. Cochran. This month, sadly, one of the parties in the case - famed attorney Johnnie Cochran - died.

In this column, I will discuss whether the case is mooted by Cochran's death (I believe it is not), and who has the better of the argument. In particular, I will argue that Cochran's adversary, Ulysses Tory, is right to argue that the court injunction at issue violates his First Amendment rights.

The Basis for the Case: A California Court's Permanent Injunction Against Speech

The case involved a California court's injunction applying to Ulysses Tory, a very dissatisfied former Cochran client. Tory and others had picketed outside Cochran's law office holding up a variety of placards criticizing Cochran.

Among them were placards claiming Cochran was a "liar," a "thief," and a "crook"; suggesting he was involved in "illegal abuse" and discrimination; and saying that unless a client were rich, he or she would be "screwed" if represented by Cochran.

If such statements are indeed untrue, as the California judge held, then they are classic instances of defamation. Indeed, because some of these statements disparage Cochran's professional competency and integrity, they are, if untrue, a kind of defamation that the law especially despises -- for it can lead to job loss and blackballing.

Accordingly, Cochran on the basis of these statements, sued Tory and others associated with him, including other picketers, for defamation and "false light" invasion of privacy (a claim which is very similar to - and arguably, duplicative of - a defamation claim).

In the end, Cochran won, and he won big: The court issued a permanent injunction directing Tory and others not to picket, display placards, or otherwise speak about Cochran or his firm in any public forum.

This injunction will stay in place until and unless the court modifies it. It thus could gag Tory and his associates forever.

Is the Case Moot Now That Cochran Has Died?

Will Cochran's death end the case? Under the constitutional doctrine known as "mootness," a case is "moot," and can no longer be considered by a court, if there is no longer a controversy to be resolved. Thus, the Supreme Court requested that lawyers for both Cochran and Tory submit briefs on the question of whether the case survives Cochran's death.

Arguments support each side:

On one hand, any risk of defamation is gone, because deceased persons cannot bring defamation claims. (An earlier column by John Dean argues, however, that the law should recognize such a claim.) So if the injunction was simply meant to prevent Cochran from being further defamed, then its job is done.

On the other hand, the injunction relates not only to speech about Cochran, but also to speech about Cochran's firm - which certainly continues on without him. As Tory's lawyer, Erwin Chemerinsky, argued to legal journalist Tony Mauro, this strongly suggests that the injunction "continues after death," at least as against the firm.

But what if the injunction only reached the firm (which did not claim it was defamed) in order to prevent Tory from circumventing the ban on defamation claims against Cochran by critiquing the firm, not the attorney? In that case, one can argue, once again, that the injunction has no purpose - and thus is void - after Cochran's death, because no defamation of him can now occur, and that the case is moot.

A final point by Professor Chemerinsky may settle the debate: As he noted in speaking to Mauro, "[T]he terms of the injunction say that Tory never can say anything about Cochran" - not within Cochran's lifetime, but forever.

Since the injunction isn't time-limited, it continues on, and so do its benefits to the defendant -- as Cochran's lawyer, Jonathan Cole, pointed out. Cole told Mauro, "the firm and [Cochran's] estate could stand to benefit" from leaving the injunction in place.

The Core of the Case: Can A Defamation Claim Justify a Permanent Injunction?

The injunction the California court issued is very probably doomed, for the Supreme Court will almost certainly hold that it is contrary to the First Amendment - for a number of reasons.

First, defamation claims typically lead to damages awards - not to court orders like injunctions. In this case, Cochran was not able to show a concrete way in which his firm was hurt by the picketing - for instance, a particular prospective client that was lost. In most cases, the failure to prove damages would mean the claim simply could not succeed. Here, however, the judge, rather than ruling against Cochran, shifted the remedy - choosing to issue an injunction rather than awarding damages.

Second, the doctrine of "prior restraint" strongly disfavors any court order that affects words that have not yet been said (or posted, or published, or put on a picket sign, as the case may be). Precisely because damages are available if the words are defamatory, the court generally allows the words to be communicated to the world.

The idea is that the damages will be able to make the plaintiff "whole" - compensating him for any injury he may suffer - and thus, a prior restraint is not only anti-free-speech, but simply unnecessary.

Of course, that's not accurate in all instances: Defamation plaintiffs like Cochran probably tend to suffer unprovable harms. (For instance, would Cochran necessarily have known about it if a potential client was reluctant to cross a picket line, and instead chose a different lawyer?) But the law sometimes addresses this issue by presuming that damages are suffered when certain types of defamatory statements are made -- whether or not the plaintiff has evidence of damages.

And there's a strong First Amendment reason, in any event, to entertain the fiction that a damages award, in fact, fully compensates for defamation. If words aren't spoken, it's not only the speaker who suffers: It may also be society.

In addition, the harm from defamation, unlike many other harms, can be countered by speech itself - especially when the defamation targets a public figure. Cochran had a very prominent public podium from which he could fight Tory's allegations through his eloquent words, as well as fighting them in court.

Many public figure defamation plaintiffs have the same advantage. Indeed, some - such as Britney Spears - are blogging in order to directly address their fans about rumors they say are untrue.

Could a Narrower Injunction Possibly Pass Muster?

There's a third reason that this injunction ought to be a goner: It's extremely broad. It lasts forever. It does not limit the type of speech to which it applies, only the topic. It limits speech about the firm, not just about Cochran. And it applies to a number of people other than Tory, whose conduct sparked the lawsuit.

For all these reasons, the Supreme Court, even if it somehow did not invalidate the injunction, would be forced at least to narrow it. A slightly more palatable court order - but one that would very probably still be held to violate the First Amendment - would apply only to Tory; would apply only to false and defamatory statements; and would be subject to automatic, periodic court review to determine if it ought to continue.

Yet I doubt the Supreme Court will be inclined to intervene to rewrite the injunction this way. It's much more likely to simply invalidate it, and see if the court that initially issued the injunction is inclined to now issue a newer, narrower version in light of the guidance from the Court's opinion.

Thus, it may not ever reach what is, in my view, the only truly debatable question this case raises: Are injunctions simply off limits as remedies in defamation cases, or might there be injunctions much narrower than this one that are permissible under the First Amendment?

While Tory Will Very Probably Win, It's Cochran's Advocacy That Is Impressive

In the end, there seems little question Tory will win his case. But this one loss ought not to mar Johnnie Cochran's impressive record: The First Amendment arguments here were just too much to overcome.

And even if Cochran, his firm, and their outside attorney, Cole, lose at the Supreme Court, as they ought to, they deserve credit. They talked a judge into imposing an extremely broad, perhaps unprecedented remedy. Then they got a California appeals court to approve that remedy despite such serious First Amendment problems that the U.S. Supreme Court subsequently took notice. Admiring advocates must wonder: Was hypnotism employed?

Overall, the result in this case is, thus, already worthy of Cochran - who, while he lived, was possessed of an exceptionally silver tongue. Had he and his counsel been lesser lawyers, this case would never have made it to the Supreme Court in the first place.

Full disclosure: Petitioner Ulysses Tory is represented by Professor Erwin Chemerinsky, who has written for this site.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden also has experience in criminal motions and appeals. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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