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Johnnie Cochran Jr. died on March 29, but his lawsuit may still live at the Supreme Court. The Court, which heard argument in Tory v. Cochran on March 22, has asked the parties to analyze whether his death renders the dispute moot. Although no ruling on mootness had been issued at the time of writing, lawyers for both sides seem to agree that Cochran’s death does not automatically moot the case. That may be fortunate, given the important First Amendment issues at stake that the Court should address. Cochran’s office was picketed by Ulysses Tory, a disgruntled former client. One picket sign, according to the California appellate court opinion, alleged that Cochran was “a crook, a liar, and a Thief.” Other signs claimed that “You’ve been a BAD BAD boy, Johnnie L. Cochran” and “Attorney Cochran, Don’t We Deserve at Least the same Justice As O.J.?” Claiming that the messages prominently displayed outside his law firm were false and harmful to his reputation, Cochran sued Tory for libel in California state court in October 2000. The court ruled in Cochran’s favor after a trial in March 2002. Instead of awarding damages, a sympathetic Superior Court judge entered an injunction against Tory and “all persons acting in concert, cooperation or participation with him.” (Tory’s wife and several friends had occasionally joined him on the picket line.) The order barred Tory and others from a wide range of activity. They were prohibited in “any public forum” from picketing Cochran or his law firm, “displaying signs, placards or other written or printed material” about Cochran or his law firm, and “orally uttering statements” about Cochran or his law firm. The California intermediate appellate court sustained this order in October 2003, and the state Supreme Court declined to intervene, leading to U.S. Supreme Court review this spring. LOATH TO ENJOIN The central issue now before the nation’s highest court is whether defamation may be enjoined when less drastic remedies, notably money damages, are available. Where speech is involved � whether or not that speech is fully protected � the justices have been loath to allow injunctions save under exceptional conditions. Special needs of national security may occasionally warrant restricting expression, though the 1971 Pentagon Papers case ( New York Times Co. v. United States) teaches how narrow is the permissible scope of such an exception. Or, if a trial court decree were deemed vital to maintain physical access to a facility such as an abortion clinic, injunctive relief might be allowed for a limited period and within a limited space. The residence of an abortion provider might also be protected by such a decree to safeguard the privacy and security of the person’s family. Or where the orderly business of a polling place is at risk of interference or impairment on Election Day, an injunction might be issued. In these and a few other narrowly defined and exigent situations, normally protected speech may be enjoined. But absent such compelling and urgent needs, courts are not allowed to restrain expression. NO HARM The Cochran case does not seem to present any such basis for injunctive relief � nor did the California courts note any such conditions before issuing a sweeping and permanent decree. At no time, apparently, did the protesters prevent anyone from entering or leaving the premises. There seems to have been no contact or dialogue between the disaffected former client marching outside the office and current or prospective clients wishing to engage Cochran’s counsel. Indeed, the complaint contains no claim that business had suffered � that, in short, anyone acted differently with regard to Cochran and his associates because of the placards. The gravest harm that Tory’s and his friends’ derogatory messages might have inflicted would have been to Cochran’s reputation or image. Yet even as a libel case, this one seems rather tenuous. Some of the offending placards, in fact, did not even mention Cochran by name, stating only “Absolute Discrimination” or “I Know How it Feels to be Terrorized. God Bless USA.” Of those that did name the renowned defense attorney, many would not be deemed defamatory because they were essentially statements of opinion, thus lacking the factual element that is vital to a libel judgment. For example, one placard stated, “Attorney Johnnie, It’s Past Time,” and another said, “Unless You have O.J.’s Millions � You’ll be Screwed if You USE J.L. Cochran, Esq.” And even of the small portion of the offending statements that might meet the legal standards for defamation, Cochran, who was nothing if not a public figure, would, of course, have needed to prove “actual malice” under the Supreme Court’s ruling in New York Times v. Sullivan (1964). That test requires public officials and public figures to show that any defamatory statements were made with knowledge of their falsity or a reckless disregard for their truth. Curiously, the California courts seemed relatively untroubled by the distinction between public figures and private plaintiffs, apparently assuming that the need to meet a higher standard of proof in the case of a high-profile libel claimant applied when that person sought money damages but not when seeking an injunction. Equally perplexing is the broad sweep of the decree that the trial judge gratuitously entered and the appellate court approved. In at least two respects, its terms go well beyond even those that would be acceptable in the exigent circumstances already noted. The reach of the decree was not limited to defamatory statements, but indiscriminately covered a host of uncomplimentary accusations and insinuations. Some of the enjoined statements referred only inferentially to Cochran, and thus in any other context would almost surely have failed the “innuendo” or “of and concerning” test that the New York Times decision also imposes as an element of First Amendment scrutiny. In the Times case, one of the less visible constitutional rulings concerned precisely this issue. The justices declared that a plaintiff must submit convincing proof that the allegedly libelous statement not only was false and injurious to reputation, but that no reader could fairly doubt that the statement referred to that person directly and not by implication or inference. Moreover, even a laudatory statement � for example, praising Cochran’s defense of O.J. Simpson � would equally have run afoul of the challenged order, since the decree barred all mention of the celebrated defense attorney. The unlimited duration of the order in this case also seems at sharp variance with precedent. Where expression may be enjoined at all, the Supreme Court has been careful (in rulings such as those involving anti-abortion protests) to limit the duration of such a restraint, noting the hazards of open-ended orders of limitless duration. Curiously, though, neither of the California courts addressed the problems with a permanent duration, apparently assuming that if speech may be enjoined at all, the duration of the restraint has no independent significance. Equally puzzling was the seemingly casual application of the injunction to unnamed “agents, representatives, and all persons acting in concert” with the named defendant, even though specific collaborators could presumably have been identified with modest effort. The notion of an injunction that might inadvertently subject an occasional participant to contempt for simply holding one of the signs to relieve a regular protester during a coffee break is especially troubling, though that prospect hardly seems implausible. PRIOR RESTRAINT Finally, among the troubling elements of this case is a central premise of equitable relief. Where remedies at law seem adequate to redress a plaintiff’s claims, equity wisely abstains. When it comes to libel, the preference for money damages seems obvious. That is so even where the defendant’s financial condition might make ultimate recovery speculative. Such is clearly the rule even with respect to indisputably libelous statements, let alone to messages of the type in this case, many of which lack the elements essential to a viable libel claim. Yet the lower California courts seem not to have pondered that historic preference for non-injunctive relief � making all the more surprising the state Supreme Court’s refusal to review a central First Amendment issue posed by a high-profile plaintiff. This is particularly true in light of the classic concerns about “prior restraint.” Our deep abhorrence of prior restraint is partly historical, reflecting unhappy memories of the practices of colonial British judges. In more recent times, we insist that controversial information should reach the public so citizens may judge its value (or its risks). We also stress the far more protective procedures that accompany a criminal trial but are absent in a contempt proceeding � and which therefore better serve freedom of expression. Additionally, there are other good reasons why courts look unkindly upon orders that restrain speech or press. While a defendant will presumably get his or her day in court before being held in contempt of an injunction, the scope and breadth of the issues that may be raised at a contempt hearing would almost inevitably fall short of those that would naturally arise in a civil damage suit, much less in a criminal prosecution. The force of the New York Times libel standard well illustrates the contrast. Before a publisher � or a private speaker, for that matter � may be forced to pay damages for a libelous statement, a public-figure or public-official plaintiff must establish that the statements were made with actual malice. Whether Cochran could have proved that Tory knew that some of his charges on the signs were false, or simply did not care whether they were true or false, we will never know. Although the California appeals court assumed that actual malice would be required and further assumed that Tory had acted with such a heedless or reckless state of mind, evidence of his knowledge or motives had never been sought or provided, as it would need to be as a constitutional matter before an adverse libel judgment could be entered. WHAT NOW? The Supreme Court’s options are several, intriguing in their range and variety. The threshold question is whether the case is moot. On the one hand, both parties may conclude that it is not: The injunction on Tory is still in effect, and Cochran’s law firm still would benefit from its ban on picketing. On the other hand, the Court might reasonably wonder if it still has a genuine case or controversy, particularly if it appears unlikely that Tory would continue his picketing after Cochran’s death. If the Supreme Court reaches the merits, the justices might simply direct the California courts to do what they have thus far failed to do � assess a range of First Amendment issues that were inexplicably ignored on the initial round. Such issues would include the scope and duration of the virtually limitless decree, as well as the new issue of the inability to libel the dead. Or a remand might compel the state courts to reconcile the injunction they entered and affirmed in this case with the rigorous standards that govern equitable relief in other circumstances such as national security, abortion clinics, polling places, and the like, where injunctions against expression have been allowed. The high court could declare categorically that wherever an adequate remedy exists at law, as it presumably does here, even less than fully protected speech may simply not be enjoined. Finally, though less likely, the justices could rule narrowly that defamation may, at the very least, never be enjoined when it targets a public official or a public figure, for reasons consistent both with the New York Times doctrine and the celebrity of a prominent attorney whose role as a plaintiff was most unusual. Whatever the outcome, any ruling on the merits is unlikely to affirm the lower court’s injunction. When challenging established First Amendment principles, even a lawyer as eminent as the late Johnnie Cochran seems destined to lose. Robert M. O’Neil, a law professor at the University of Virginia, is director of the Thomas Jefferson Center for the Protection of Free Expression. He filed an amicus brief on behalf of Ulysses Tory in the Supreme Court case.

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