Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, June 14, 2005

Supreme Court Lifts Injunction on Cochran's Former Client, Ruling It An "Overly Broad Prior Restraint on Speech"

With a majority opinion written by Associate Justice Stephen Breyer, the Supreme Court has lifted an injunction granted by a California trial court and upheld by the 2d Appellate District of California to the late Johnnie Cochran, finding that "as written, [it] now amounts to an overly broad prior restraint upon speech, lacking plausible justification." According to the syllabus provided by the Court, upon hearing the facts presented, "a California trial court found that petitioner [Ulysses] Tory, assisted by petitioner Craft and others, had inter alia, falsely claimed that Cochran owed him money, picketed Cochran's office with signs containing insults and obscenities, and pursued Cochran while chanting similar threats and insults, in order to coerce Cochran into paying Tory money to desist from such libelous and slanderous activity....The court permanently enjoined petitioners and their agents from, among other things, picketing, displaying signs, and making oral statements about Cochran and his firm in any public forum."

Cochran died shortly after the case was heard, but the Court considered that the case was not moot, since the injunction remained in effect.  "Nothing in its language says the contrary. Cochran's counsel tells us that California law does not recognize a `cause of action for an injury to the memory of a deceased person's reputation,'...[b]ut counsel adds that `the [i]njunction continues to be necessary, valid and enforceable.' The parties have not identified, nor have we found, any source of California law that says the injunction here automatically becomes invalid upon Cochran's death, not even the portion personal to Cochran."

The Court declined the invitation to consider whether the First Amendment allows the issuance of a  permanent injunction in defamation cases when the plaintiff is a public figure or whether the injunction here was improperly drawn when first written. It simply decided that "the injunction, as written, has now lost its underlying rationale. Since picketing Cochran and his law offices while engaging in injunction-forbidden speech could no longer achieve the objectives that the trial court had in mind (i.e. coercing Cochran to pay a "tribute" for desisting in this activity), the grounds for the injunction are much diminished, if they have not disappeared altogether."

The Court allowed the substitution of Mrs. Cochran for Mr. Cochran as respondent and remanded the case to the California courts. Read the opinion here.  Justices Thomas and Scalia dissented.

Julie Hilden writes concisely about the case in an April 12, 2005 column. Read her piece here.

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