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Free speech rights and defamation clash in high court case

Justices weigh case involving Johnnie Cochran, dissatisfied client

By Bill Mears
CNN Washington Bureau

Supreme Court
Los Angeles (California)

A disgruntled client of famous defense attorney Johnnie Cochran provided a high-profile chance for the Supreme Court on Tuesday to weigh the constitutional benefits and pitfalls of injunctions against public speech.

Cochran, who in the 1990s successfully helped defend former football star O.J. Simpson against murder charges, filed a defamation lawsuit against a Los Angeles man who began picketing outside the attorney's offices.

A judge eventually ruled for Cochran and issued an injunction against Ulysses Tory, setting out a lengthy list of prohibitions against speaking out about the case and the attorney.

Several of the justices continually questioned whether the restrictions went too far, to the point where Cochran's attorney, Jonathan Cole, made the unusual move of admitting to the justices, "I'm getting the impression you're leaning toward the court thinking it's over broad."

"You're very perceptive," Justice Antonin Scalia quickly deadpanned, prompting laughter from the audience.

At issue are the limits of free speech when it becomes defamatory, false, or involves extortion, which Cochran alleges was the case.

The U.S. Constitution's prior restraint doctrine limits the government's ability to censor speech beforehand, but allows courts to punish speech after publication. That places a heavier legal burden on those who seek injunctions against people speaking out in the future, as happened in this case, Tory v. Cochran.

Cochran did not file a claim for monetary damages, which Tory's lawyers claim proves Cochran did not suffer any financial or reputation loss. Cochran's notoriety, too, could play a role in the outcome, since he is considered a "public figure" who presumably would be able to defend himself against false statements through his access to the media, especially television.

The case involves a business relationship that soured after Tory hired Cochran's law firm in the 1980s to provide a number of legal services. Tory was dissatisfied and sought a refund, but there is dispute over whether Cochran initially offered to repay.

Ten years later, in 1995, Tory was still waiting for his money and in frustration began weekly pickets outside Cochran's law offices, along with several other people.

According to the briefs, the picketing went on for about three years, increasing when Cochran sued Tory, and some of the signs became increasingly vulgar. A state judge found Tory's statements were false, and ruled that since he tried to get money from Cochran, he did not deserve free speech protection.

Justices focus on injunction's language

The justices Tuesday hammered away at the breadth of that injunction, which attorney Cole said came after a "repetitive pattern of defamatory speech."

"This injunction has the appearance of being overly broad, " responded Sandra Day O'Connor. "I mean, it's clearly over broad. What should we do about it?"

Justice John Paul Stevens seemed to agree. "Are there other ways to craft it (the injunction) without stopping the picketing completely?" he asked.

Justice Stephen Breyer offered a hypothetical scenario, wondering whether Tory should be punished if a change of heart led him to publicly support Cochran if the lawyer ran for mayor of San Francisco.

Cole said that in that case, it might be appropriate for Tory to speak out for Cochran, although it would technically violate the injunction.

"I thought he lived in Los Angeles," joked Chief Justice William Rehnquist, to loud laughter. Rehnquist returned to the bench for a second straight day, presiding over oral arguments with his usual stern command of the proceedings, mixed with occasional humor.

Arguing for Tory, lawyer Erwin Chemerinsky said such restrictions on speech "would open the door to injunctions as a routine matter in defamation," which he called an overly "strong and heavy prescription."

Several justices seem troubled that Tory should deserve free speech protection, since lower courts concluded Tory wanted money from Cochran. Tory had told a state judge he would continue picketing until he was paid, which Cochran's attorneys argued amounted to extortion, which is a crime.

Scalia hypothetically asked, "Why isn't there a fear of extortion if the speech could help destroy his business?"

Justice Ruth Bader Ginsburg said the court record suggested Tory's picketing was "to extract from Mr. Cochran money owed."

The case is Tory v. Cochran (case number 03-1488). A ruling is expected by late June.

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