Petitioners Brief — Tory v. Cochran

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FILED

2 2004

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

ULYSSES TORY AND RUTH CRAFT,

Petitioners,

JOHNNIE L. COCHRAN, JR.,

Respondent.

¢ =

On Writ Of Certiorari To The

Court Of Appeal Of The State Of California,

Second Appellate District, Division One

PETITIONERS’ BRIEF ON THE MERITS

ERWIN CHEMERINSKY

Counsel of Record

DUKE UNIVERSITY LAW SCHOOL

Science Drive and Towerview Road

Durham, North Carolina 27708

(919) 613-7173

Gary L. BOSTWICK

JEAN-PAUL JASSY

- SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

1901 Avenue of the Stars, Suite 1600

Los Angeles, California 90067

(310) 228-3700

Counsel for Petitioners Ulysses Tory and Ruth Craft

— OOOO eee

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION 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.

TABLE OF CONTENTS

Page

Question Presented .......:0:cs:scecsesssssssessseansniaeanananan i

Table of Authorities. .........0:::0cccsessssssessassvesanennanne iv

Opinion Below........0++:+sscccsessosesssscenssesseusennennnnnnnn 1

Statement of Juriadiction...........cccsccssscccssennsesensuanen 1

Constitutional Provision Involved..................::c0eeeeees 1

Statement of the Caee.........000ssssessssesensehsnnseenaeeeea 2

Summary of Argument .......sc.soccossssecesssousssiasineeeann 7

Argument .........102000005:s00eeceseeeesssnenuesinuninnnnnnannnnnnnnnn 11

I. THE TRIAL COURT PERMANENTLY ~-EN-

Il.

IIT.

JOINED SPEECH ABOUT A PUBLIC FIGURE

INVOLVING A MATTER OF PUBLIC CON-

COURT ORDERS PERMANENTLY ENJOIN-

ING SPEECH ARE PRIOR RESTRAINTS..........

A COURT ORDER PERMANENTLY EN-

JOINING SPEECH IS NOT A PERMISSI-

BLE REMEDY IN A DEFAMATION CASE,

ESPECIALLY WHEN THE PLAINTIFF IS A

PUBLIC FIGURIR........0.000s.ss0seseensesseannaialananne

A. Prior Restraints Are Not A Constitution-

ally Permissible Remedy In Defamation

COREE .0..ncc0recsvecssccesecsceneesianneaenlennnnnnnnnan

1. Permanent Injunctions Historically

Have Not Been A Permissible Remedy

in Defamation Actions .....................0+

2. Damages Are A Sufficient Remedy

For Plaintiffs In Defamation Cases ....

| TABLE OF CONTENTS -— Continued

Page

3. Effective Injunctions In Defamation

Cases Are Inherently Overbroad And

Inevitably Put Courts In The Role of

Being Perpetual Censors Determin-

ing Whether Speech Can Occur ..........

4. Allowing Injunctions As A Remedy In

Defamation Cases Would Be A Radi-

cal Change In The Law With A Dev-

astating Effect On Freedom Of

EEE EEE a

B. At A Minimum, Injunctive Relief Should

Not Be Available To Public Figure Plain-

tiffs In Defamation Cases ........................

IV, ANY PERMISSIBLE PRIOR RESTRAINT

MUST BE NARROWLY TAILORED, BUT

THE PERMANENT INJUNCTION IN THIS

_ CASE IS EXTREMELY BROAD......................

A. IfA Prior Restraint Is Ever Permissible, It

Must Be Narrowly Tailored......................

B. The Prior Restraint Imposed On Tory and

Craft Is Unconstitutionally Overbroad ......

SES SL AES SEIS SOD TE

TABLE OF AUTHORITIES

Page

CASES

Advanced Training Systems, Inc. v. Caswell Equip-

ment Co., Inc., 352 N.W.2d 1 (Minn. 1984)................... 32

Aguilar v. Avis Rent A Car Systems, Inc., 980 P.2d

Ste FG Ts Rei 23

Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967).................. 32

Alexander v. United States, 509 U.S. 544 (1993).... 8, 14, 15

American Malting Co. v. Keitel, 209 F. 351 (2d Cir.

BBE) cco csccsvissenesnnienttdimsnaticaendgmsiiendindiiimeintmanniaaa tsi neaiaiel 32

Avis Rent A Car Sys., Inc. v. Aguilar, 529 U.S. 1138

GRIP cncurccccvinsssscnesahegieientintajeniiiedaiiuanaia ame atau 19

Balliet v. Cassidy, 104 F. 704 (C.C.D.Or. 1900)................ 21

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)......... 18

Beck v. Ry. Teamsters’ Protective Union, 77 N.W. 13

CRG, Be ccrentccsicsieciisicsinsstbinipsitaininigiacaaiiannmldeimaiiiis tetas 32

Board of Airport Commissioners v. Jews for Jesus,

ag Ps Fa a) ccciesetviscenssnsarianiindiiatitdaiaiiabiienl 36

Bose Corp. v. Consumers Union of United States,

Bia. , SB WE. Gp Cae vicehtcacntscevincitesasacdeatbindeabineamias 34

Brandreth v. Lance, 8 Paige Ch. 24 (N.Y. Ch. 18339)......... 21

Branzburg v. Hayes, 408 U.S. 665 (1972) ............cccccceeeeees 39

Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir. 1992)....... 32

Carroll v. President and Comm'rs of Princess Anne,

S56 US. Fi0 Ge) wsscunhicbunnictesekedents 26, 35

Carter v. Knapp Motor Co., 11 So.2d 383 (Ala. 1943)....... 32

CBS Inc. v. Davis, 510 U.S. 1315 (1994)....0000.... 18, 27

— a oe os « -

TABLE OF AUTHORITIES — Continued

Page

Citizens’ Light, Heat & Power Co. v. Montgomery

Light & Water Power Co., 171 F. 553 (C.C.M.D.

BE, TD cxccessvcrivtntpiicintarssnnitnnsscaiaiteitiibesindedtaainatiaeat 22

Community for Creative Non-Violence v. Pierce, 814

PDE GOB CAC Ie, NEG GD cccccestctneiesanscvisncitncviddreisapivetinns 31

Couch v. San Juan Unified Sch. Dist., 39

Cal.Rptr.2d 848 (Cal.Ct.App. 1995) ...........::ccccsssseeseeeeees 4

CPC Int'l, Inc. v. Skippy Inc., 214 F.3d 456 (4th Cir.

SID cxcciinneccpntsconetuciactapisivciiaeiasiipiastidmbamipaitisiieaiediaial 36

Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.

IUD cctistinitidees secmepuniiastiiintaiinietiniladidantadaiiannilamaaiaal 32, 36

Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967)...... 9, 19, 34

Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) ......... 36

Francis v. Flinn , 118 U.S. 385 (1886) ....................2..00 9, 24

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)........... 9, 11

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)........ 13

Greenberg v. Burglass, 229 So.2d 83 (La. 1969)............... 32

Guion v. Terra Mktg. of Nevada, Inc., 523 P.2d 847

Ga BGO cn acesecisenisnsivictntuntvitinnibdabipeanstiddbiasmmetianiitieds 32

Gooding v. Wilson, 405 U.S. 518 (1972) .......c...cccccseseneeeeees 36

Gruschus v. Curtis Publ’g Co., 342 F.2d 775 (10th

Ce BIT acanacticsocniinccescatciitneleainninishasiaidpeinmaniniiamiesieaia 38

Hague v. CIO, 307 U.S. 496 (1939) .............scscsecseeeeees 10, 38

Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253

CO, SGD cccicicinateicisncssenisciinintiiaticunacedamiaia 32

Hansbury v. Lee, 311 U.S. 32 (1940)... eeeeeeeeee 28, 39

Houston v. Hill, 482 U.S. 451 (1987)...............ccccceeeeeneneeees 36

TABLE OF AUTHORITIES -— Continued

Page

Howell v. Bee Publ’g Co., 158 N.W. 358 (Neb. 1916)......... 21

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ....... 13, 27

In re Providence Journal Co., 820 F.2d 1342 (1st

Cie BED vcistesavcintcsisisnsiismiaitiateatdendbidiianiiameiiaaindiiaiiemeaiia 31

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) ... 30, 31

Kwass v. Kersey, 81 S.E.2d 237 (W.V. 1954)............c2cceee00 32

Life Ass’n of Am. v. Boogher, 3 Mo. App. 173 (1876)......... 21

Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.

ITD ccnncecnasrcnvhiciencatitcintiaaieniiabcnpibabinnmsisbimabebaiieiigddaia 32

Madsen v. Women’s Health Center, Inc., 512 U.S.

Fe COD ictarieticensieiaahiiietiititoaaaaiiiiiinn tmndanebe 16, 17, 23, 35

Marlin Fire Arms Co. v. Shields, 64 N.E. 163, 171

& & +) 2 & SP ese 32

Martin v. Wilks, 490 U.S. 755 (1989) ...........cccceceeeeeeeee 28, 39

Menard v. Houle, 11 N.E.2d 436 (Mass. 1937).................. 32

Mescalero Apache Tribe v. Allen, 469 P.2d 710 (N.M.

II crcssesnceitsnvisiaticctiatitteingiianiiadiabiaditlie eriiahiiariabtilihiaastiids 32

Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel

Employees and Restaurant Employees Intl Un-

ion, 239 F.3d 172 (2d Cir. 2001).........cerseossessccseesccsessesees 31

Middlesex County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423 (1962)............cccccsccsssoscccverecccees 13

Milkovich v. Lorain Journal, 497 U.S. 1 (1990) ......... 33, 37

Montgomery Ward & Co. v. United Retail, Whole-

sale & Dep't Store Employees, 79 N.E.2d 46 (Ill.

BIIID ecricstciccrencoscccsscetnntsnciisdiesttnicariientabuaiiiciiaaibineisenmia 32

Vii

TABLE OF AUTHORITIES — Continued

Page

Moore v. City Dry Cleaners & Laundry, Inc., 41

Bare OR Beis Be cinncvininbeitiniecbicdalitieatiiiprmattantnatiinnbbianianin 32

- NAACP v. Button, 371 U.S. 415 (1963).......ccccccccccseseseeeeee 36

NAACP v. Claiborne Hardware Co., 458 U.S. 886

CEI wasissticsitesindacdhilinkmninleialieniliiaiditiiadatAdateth atthe d sehen ical 39

Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).....passim

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

(1976) ......e0scsssrsrsssesssesescesesensesesesesensesneees 18, 27, 29, 30, 32

New York Times Co. v. Sullivan, 376 U.S. 254

CED cnelesicedustectnbidvnnisiitinsbaniatiidieduemmath 11, 25, 27, 34, 40

New York Times Co. v. United States, 403 U.S. 714

LAW EP wvstissinishegsdicitininibibinetiibibntniadedadNcadiieabmibiiedaaaeS 18, 31

O’Brien v. Univ. Comty. Tenants Union, Inc., 327

Ps Pe I BPTI cidtcccnninebinctiiasnihiaiidiinniiht acca, 32

Organization for a Better Austin v. Keefe, 402 U.S.

Cg | EEN SL acai. were Oe 8, 15, 16, 17, 18

Pennekamp v. Florida, 328 U.S. 33 (1946) ....... 9, 24, 25, 32

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376 (1973)...............00.. 18, 31

Prucha v. Weiss, 197 A.2d 253 (Md. 1964) ..............ccc00000 32

Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (Pa.

SIND pocdnvsisiucvoesicdiichingdnipianibetiiintpiatasteiaitadnsapaialeieapen it cians 23, 24

Retail Credit Co. v. Russel, 218 S.E.2d 54 (Ga.

IP TUEE ccciscitllaciciniciinininentikitasthdeliiamadeanttiaiasmiabdddiddnieentidadiiatity 32

Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742)................. 20

Robert E. Hicks Corp. v. Nat'l Salesmen’s Training

Ass'n, 19 F.2d 963 (7th Cir. 1927)................ccccesereseceeees 32

TABLE OF AUTHORITIES - Continued

Page

San Antonio Cmty. Hosp. v. Calif. Dist. Council of

Carpenters, 125 F.3d 1230 (9th Cir. 1997) ...........:00000 32

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

CRIED ccccicnastssiucinscbTcimasinnlcgnisuacnatsiademenbidciaiatinstininiideeiideediie 36

Schmoldt v. Oakley, 200 P.2d 882 (Okla. 1964)................ 32

Southeastern Promotions v. Conrad, 420 U.S. 546

CIID cccconecedchensscenssanceiveiteliantelaiiesuntiiaiidasia cide thiat sade eile 28

State ex rel. Liversey v. Judge of Civil Dist. Court,

6 Et, Be, Fe Ce sictericeierscatiassittiosisiiiigirs li vinininnsbedsibiihena 22

United States v. Doe, 455 F.2d 753 (1st Cir. 1972)............ 31

Universal Amusement Co. v. Vance, 404 F.Supp. 33

CRE TR, Fie cinicteicssvbinvenicticnintanatiseudtnimmaieeiastilatetdd 16

Vance v. Universal Amusement Co., Inc., 445 U.S.

BR Ce htcitiintscntincninersassebrincninaatuns uaa 8, 16, 17

Walker v. City of Birmingham, 388 U.S. 307 (1967)......... 17

Willing v. Mazzocone, 393 A.2d 1155 (Pa.

TEER TS CR NEE me Ce 21, 25, 26, 32

Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157

LIP E cccocactschesicdensenmencdiiansspiniienitdialeccntihastbiaitieniiessdien cain atin 9, 33

CONSTITUTIONAL PROVISIONS AND STATUTES

Re Te SSR Sr cata ee 1

+ Mee 8 ON S| SRE eRe ee 37

Cal, Gamat... GG. TicGe TD cictuidtenichnniicstimadiditieipeliammiaaedl 6

CFD, Clamnat,.. GIRAMEE § acccecesssnsiseencpeiscsinnatanpetcceninteestonti passim

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

43A C.J.S. Injunctions, § 255 (2004) ...0........ccccceeseeeeeeees 9, 20

Appellant’s Brief, Near v. Minnesota, 1930 WL

eres GE * E. ctceechikesncphndennningiietdimmsedstdnaiibeneiitiiedbiaabibied 22

Brief of Appellee, Near v. Minnesota, 1931 WL

Ne LUE ilciasbin dnortnchticnndedtivisthsahtahacitapedisieielinigeteiae 22

Johnnie Cochran, A Lawyer’s Life 7-8 (2003) .............0.00 12

20 Thomas B. Howell, A Complete Collection of

OED SOE Fe CA iiiciduticiicislbictisniaiaicireecaetttnsipibateiais: 21

Michael I. Meyerson, The Neglected History of the

Prior Restraint Doctrine: Rediscovering the Link

Between the First Amendment and Separation of

Powers, 34 Ind. L. Rev. 295, 308-311, 324-330

GIFTED spikes -<ccjnisepéactatpniiessenbidabeniaiaamaiiaabimaeamaraa 9, 20, 21

W.E. Shipley, Injunction as Remedy Against Defa-

mation of Person, 47 A.L.R.2d 715 (1956)........... 9, 20, 21

Rodney Smolla, Law of Defamation § 9:85 (2d ed.

ES ae piiasécienbcansebdapabiiiaiaiabestiahadeditiae 9, 20, 31

- —— eee > ~———

OPINION BELOW

The opinion of the California Court of Appeal, Second

Appeliate District, Division One, is unpublished. (JA 51-

61.)*

STATEMENT OF JURISDICTION

Pursuant to 28 U.S.C. § 1257, this Court has jurisdiction

to review the October 29, 2003 decision of the Court of

Appeal of the State of California, following a denial of

discretionary review by the Supreme Court of California

on January 28, 2004. (JA 51-62.) The petition for a writ of

certiorari was filed on April 26, 2004, and was granted on

September 28, 2004.

CONSTITUTIONAL PROVISION INVOLVED

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” U.S. Const.,

amend. I.

* Citation to the Joint Appendix will be styled, “JA ___”. Citation to

the Reporter’s Transcript from the trial proceedings in the Superior

Court for the State of California will be styled, “RT __”. Citation to the

Clerk’s Transcript from the trial proceedings in the Superior Court for

the State of California will be styled, “CT __”

STATEMENT OF THE CASE

The California Court of Appeal affirmed a permanent

injunction that forever prohibits Ulysses Tory and Ruth

Craft from all future speech in any public forum — regard-

less of content or context — about an admitted public

figure, Johnnie L. Cochran, Jr. (JA 52, JA 55-56, JA 60.)

This lawsuit arose from the events of earlier litigation

where Petitioner Tory was represented by Cochran and his

law firm. On February 18, 1983, Tory and one of his

employees, Javier Gutierrez, emerged from Tory’s Fish

Market and were fired upon by law enforcement officials.

(RT 6:8-11.) Shortly thereafter, Tory decided to retain

Cochran in a personal injury and civil rights lawsuit

against various government entities involved in the

incident. (RT 6:11-13, 64:2-7; CT 47.) Tory went to Coch-

ran’s law office and was interviewed by an attorney named

Earl Evans. (RT 64:5-10, 79:4-11.) Evans signed a retainer

agreement on Cochran’s behalf, establishing the attorney-

client relationship between Tory and Cochran’s law firm.

(RT 64:5-10, 79:16-28, 118:1-8.)

Over the next two years, Tory became increasingly

frustrated with what Tory perceived as Cochran’s failure to

pursue the litigation on his behalf. (RT 215:16-19, 274:2-

18.) Tory felt that he was not being adequately represented.

(RT 274:2-18, 180:12-27.) By contrast, Cochran was able to

secure a substantial settlement for Gutierrez. (RT 36:10-24,

184:20-28, 216:1-5.) Cochran ultimately withdrew from

representing Tory. (RT 174:18-174:3.)

During the same time period, Evans, who was still

working at Cochran’s law office and using Cochran’s

stationery, handled a divorce proceeding for Tory and child

custody proceedings for Tory’s putative spouse, Petitioner

EE —

Ruth Craft. (RT 6:24-7:2, 63:4-21, 78:12-28.) Tory and

Craft paid Evans for his services under the impression

that they were paying Evans as an agent of Cochran’s law

firm. (RT 189:3-7, 253:1-19.) Petitioners were not satisfied

with Evans’ services and wanted a refund of the monies

that they had paid. (RT 6:26-7:2, 81:7-18, 176:21-25.) Tory

and Craft testified under oath that Cochran offered to

repay such monies to Petitioners. (RT 262:14-263:2.)

Several years later, with no refund forthcoming, Tory

began peacefully picketing on the sidewalk outside of

Cochran’s Los Angeles law office and later in front of the

Los Angeles Superior Court. (RT 222:2-16.) He picketed

with a group of other people who also were dissatisfied

with Cochran, including people Tory understood to be

former clients of Cochran and relatives of former clients.

(RT 208:22-26, 272:17-20.) Tory testified that he did not

pay the other picketers, but that he “might have bought

them lunch.” (RT 208:27-209:23.) Tory picketed because he

believed that he had not been treated fairly by Cochran,

that he had not been represented adequately by Cochran,

and that he had been deceived by Cochran into thinking

that he would be refunded money. (RT 213:17-21, 216:6-12;

222:2-16, 274:2-18.)

Tory and others carried placards bearing various state-

ments expressing opinions about Cochran’s performance as

an attorney and about the legal system generally, such as:

e “Johnnie is a crook, a liar, and a Thief. Can a

lawyer go to HEAVEN? Luke 11:46” ‘

* The reference is to Luke 11:46 in the Bible which reads: “And he

said: ‘Woe to you lawyers also! For you load men with burdens hard to

(Continued on following page)

e “What can I do if I don’t receive the Justice the

Constitution guarantees ME?”

¢ “You’ve been a BAD BOY, Johnnie L. Cochran”

e “Atty COCHRAN, We have no Use for Illegal

Abuse”

¢ “I Know How it Feels to Be Terrorized. God Bless

USA”

¢ “Absolute Discrimination”

e “Attorney Cochran, Don’t We Deserve at Least the

same Justice as O.J.”

e “Unless You have O.J.’s Millions — You'll be

Screwed if you USE J.L. Cochran, Esq.” (JA 53-54.)

As a result of the picketing activity, Cochran sued

Tory and Does for defamation (libel, libel per se, slander

and slander per se) and false light invasion of privacy.’ (JA

7-22.) The Superior Court for the State of California issued

a preliminary injunction, prohibiting Tory from speaking

about Cochran, and subsequently tried the suit without a

jury. (JA 55.) Tory represented himself in the proceedings.

(Id.) Cochran admitted at trial that he did not lose any

business as a result of the picketing. (RT 55:20-28.)

bear, and you yourselves do not touch the burdens with one of your

fingers.”

* In California, “[wJhen claims for [false light] invasion of privacy

... are based on the same factual allegations as those of a simultaneous

libel claim, they are superfluous and must be dismissed.” Couch v. San

Juan Unified Sch. Dist. 39 Cal.Rptr.2d 848, 856 (Cal.Ct.App. 1995).

Cochran’s false light claim is based on exactly the same allegations as

his defamation claims. (JA 17)

Tory consistently asserted his constitutional right to

free speech in the trial court proceedings. For example,

Tory’s Answer to Cochran's operative complaint asserted

that “the issuance of a preliminary and/or permanent

injunction against his picketing activities as proposed in

the Complaint would constitute an unconstitutional prior

restraint.” (JA 24.) Moreover, in his objections to the trial

court’s Statement of Decision, Tory protested that his

picketing was “protected under the First Amendment

(Freedom of Expression) to the United States Constitu-

tion,” and further noted that Cochran “is a public figure

and therefore, must be held at a higher standard than a

private citizen in a matter or issue of libel, slander and

invasion of privacy.” (JA 29.)

The Superior Court found in Cochran’s favor. (RT 275:4-

6.) The Court did not award money damages because such

damages were waived by Cochran.’ The Superior Court

noted that Cochran never proved the “existence and amount

of damages.” (JA 37-38.) But the Court did issue a perma-

nent injunction, which provides, in pertinent part:

Unless and until this Court, after notice to

JOHNNIE L. COCHRAN, JR. (“COCHRAN”) and

opportunity for him to be heard, modifies or va-

cates this order, it is ordered that TORY, and his

employees, agents, representatives, and all persons

acting in concert, cooperation or participation with

him, including, but not limited to, Ruth Craft and

any other co-conspirator, are permanently en-

joined from engaging in any of the following: . . .

* See Reporter’s Transcript of trial court proceedings on April 24,

2002, at 2:7-10 (Cochran’s counsel: “We did have a right to proceed for

money damages, but we're going to waive that right.”)

In any public forum, including, but not lim-

ited to, the Los Angeles Superior Court, and any

other place at which COCHRAN appears for the

purpose of practicing law: (i) picketing COCH-

RAN and/or COCHRAN ’s law firm; (ii) displaying

signs, placards or other written or printed mate-

rial about COCHRAN and/or COCHRAN’s law

firm; (iii) orally uttering statements about COCH-

RAN and/or COCHRAN’s law firm ... (JA 34.)

(emphasis added)

Craft was not named as a defendant in the lawsuit,

nor was she given a chance to defend herself at trial, but

her speech rights were explicitly restrained in the perma-

nent injunction. (RT 4:16-5:27; JA 34.) The injunction is

not limited to preventing defamatory statements; it

prohibits Tory and Craft from saying anything about

Cochran in any “public forum.” (JA 34.)

Tory and Craft timely appealed from the permanent

injunction. (CT 118, 120.) The appeal focused primarily on

the permanent injunction as an overbroad prior restraint

on future speech issued in violation of the First Amend-

ment and Article 1, Section 2(a) of the California Constitu-

tion. (JA 56-58.) The appeal also raised other issues

implicating the First Amendment. The appeal asserted

that all of the purported statements are protected opinion

and/or hyperbole, and therefore none of the statements

can give rise to a cause of action for defamation or false

light invasion of privacy. (JA 59.) Also, the appeal submit-

ted that Cochran, a public figure, failed to prove, under

the constitutionally-mandated clear and convincing

evidence standard, that Petitioners published any of the

allegedly defamatory statements with actual malice. (JA

60.)

On October 29, 2003, the California Court of Appeal

issued an unpublished decision affirming the injunction.

(JA 51-61.) The California Court of Appeal rejected the

contention that the permanent injunction represented an

overbroad prior restraint in violation of the First Amend-

ment and the California Constitution. (JA 56-58.) The

decision states that permanent injunctions on speech are

not prior restraints, and that the overbreadth doctrine

does not apply to permanent injunctions. (Jd.)

Tory and Craft timely petitioned the Supreme Court of

California for review of the California Court of Appeal’s

decision. On January 28, 2004, the Supreme Court of

California denied review of the California Court of Ap-

peal’s decision, with Justices Kennard and Brown voting

to grant review. (JA 62.)

Tory and Craft have faithfully abided by the perma-

nent injunction restricting their speech since the injunc-

tion was entered by the Superior Court on April 24, 2002.

Under the terms of the Superior Cour*’s order, Tory and

Craft may speak about Cochran or his law firm only if

they first gain permission of the Superior Court through a

modification of its order. (JA 34.)

SUMMARY OF ARGUMENT

Never in the almost 213 year history of the First

Amendment has this Court approved an injunction as a

remedy in a defamation action. In its landmark ruling in

Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), this

Court held that a permanent injunction is a prior re-

straint; that prior restraints are allowed in only the most

limited and compelling circumstances; and that courts

may not enjoin future speech even when they find that

defamation has occurred.

Contrary to these basic First “:.1endment principles,

the California Court of Appeal upix: 'u a permanent injunc-

tion that forever prohibits Tory and Craft from saying

anything about Johnnie Cochran or his law firm in any

public forum. The Court of Appeal erred for several key

reasons.

First, the Court of Appeal wrongly held that a perma-

nent injunction is not a prior restraint if it follows a trial.

(JA 56-57.) This is incorrect because this Court clearly and

consistently has ruled that a permanent injunction is a

classic prior restraint, even when it is imposed as a rem-

edy after a finding of liability. See, e.g., Near, 283 U.S. at

706; Alexander v. United States, 509 U.S. 544, 550 (1993);

Organization for a Better Austin v. Keefe, 402 U.S. 415,

417 (1971); Vance v. Universal Amusement Co., Inc., 445

U.S. 308, 311-12 (1980). Injunctions are prior restraints

because they prevent future speech and because they

require a defendant found liable for prior conduct to obtain

a judge’s permission before prospective speech occurs. In

this case, Tory and Craft cannot say anything about Coch-

ran until and unless they go back to the California Superior

Court and have the judge modify the permanent injunction

to permit the particular expression. Contrary to the Court

of Appeal’s holding, this is an obvious prior restraint.

Second, the Court of Appeal erred because it ruled that

a permanent injunction is a permissible remedy in a defa-

mation action brought by a public figure. (JA 56-57.) To the

contrary, centuries of precedent, dating back to English law

before the existence of the United States, establish that

equitable relief is not available in defamation cases. See,

e.g., Rodney Smolla, Law of Defamation § 9:85 (2d ed.

2004); Michael Meyerson, The Neglected History of the

Prior Restraint Doctrine: Rediscovering the Link Between

the First Amendment and Separation of Powers, 34 Ind. L.

Rev. 295, 308-311, 324-330 (2001); 43A C.J.S. Injunctions

§ 255 (2004); W.E. Shipley, Injunction as Remedy Against

Defamation of Person, 47 A.L.R.2d 715 (1956). Throughout

American history, this Court has held that damages, not

injunctions, are the appropriate remedy in defamation

actions. See, e.g., Francis v. Flinn, 118 U.S. 385, 389

(1886); Near v. Minnesota, 283 U.S. at 718-19; Pennekamp

v. Florida, 328 U.S. 33, 346-471 (1946).

Especially, as here, when the defamation plaintiff is a

public figure or a public official, injunctive relief should

not be a remedy because of the importance of speech about

public individuals who hold such prominent positions in

American society. Curtis Publ’g Co. v. Butts, 388 U.S. 130,

164 (1967). As this Court repeatedly has observed, such

individuals haye exposed themselves to criticism by

voluntarily stepping into the limelight and gaining special

access to the media to respond to any attacks. 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 injunction in this case is unprecedented in

preventing any speech about a major national public

figure on an issue of great social importance: the perform-

ance of lawyers and courts.

Third, the Court of Appeal erred in concluding that a

permanent injunction of speech need not be narrowly

tailored (JA 57-58) and in upholding an extremely broad

prior restraint that prevents all future speech by Tory and

Craft about Cochran or his law firm in any public forum.

The injunction is not limited to enjoining defamatory

speech. Under its terms, Tory and Craft cannot express

their opinions or even make factually true statements

about Cochran or his firm. Under the injunction, which

prevents all speech in any public forum, Tory or Craft

could not walk down a sidewalk or through a park and

have a conversation with anyone about Cochran, even if

they were praising him. See Hague v. CIO, 307 U.S. 496,

515-16 (1939) (parks and streets are public forums). The

injunction’s tremendous overbreadth is reflected in its

restrictions on Craft’s speech, though she was not even a

party to the litigation.

Nor is this just a matter of how the injunction is

phrased. If the injunction were to prevent only the repeti-

tion of specific statements, it would serve no purpose

because the speaker could find countless other ways of

expressing the same idea without violating the court’s

order. If the injunction prohibits all speech by the defen-

dant about the plaintiff, such as the injunction in this

case, it is vastly overbroad in forbidding expression pro-

tected by the First Amendment.

The stakes here are enormous. The California Court of

Appeal’s approach would allow every court in the country,

in every defamation action, to issue a broad injunction as a

remedy. Any act of defamation would mean that the

speaker could be barred forever from saying anything —

fact or opinion, true or false — about the defendant in any

public forum. A newspaper that was found to have de-

famed a person could be perpetually enjoined from ever

publishing anything about that individual. Such a perma-

nent forfeiture of speech rights, especially about public

figures and matters of public concern — which is exactly

what occurred in this case — has no place in a country

governed under the First Amendment. Affirming the Court

of Appeal’s decision and relaxing the centuries old ban on

prior restraints in defamation cases would lead to prior

restraints being frequently, and likely regularly, imposed

in defamation actions.

This Court should reaffirm the basic principles an-

nounced in Near v. Minnesota: injunctions are prior

restraints and are not a permissible remedy in defamation

cases.

ARGUMENT

I. THE TRIAL COURT PERMANENTLY EN-

JOINED SPEECH ABOUT A PUBLIC FIGURE

INVOLVING A MATTER OF PUBLIC CON-

CERN.

This Court long has emphasized the importance of

robust debate about those who hold public office and

positions of great public prominence. See, e.g., New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (describing

“a profound national commitment to the principle that

debate on public issues-should be uninhibited, robust, and

wide-open, and that it may well include vehement, caustic,

and sometimes unpleasantly sharp attacks”); Gertz v.

Robert Welch, Inc., 418 U.S. 323, 342 (1974) (“The New

York Times standard defines the level of constitutional

protection appropriate to the context of defamation of a

public person.”) This Court has explained that “[t]hose

who, by reason of the notoriety of their achievements or

the vigor and success with which they seek the public’s

attention, are properly classed as public figures.” Gertz,

418 US. at 342.

Under this definition, Johnnie Cochran is a quintes-

sential public figure; he is likely the best known and

perhaps the most controversial attorney in the world. In

his recent autobiography, Cochran stated that his success

has “provided [him] with the kind of high-profile celebrity

and visibility few attorneys have ever enjoyed.” Johnnie

Cochran, A Lawyer’s Life 7-8 (2003). Indeed, Cochran’s

description of himself shows that he is the classic public

figure: “Court TV hired me to cohost a nightly TV show.

Characters in movies made reference to me. . . . I appeared

as myself in the Robert DeNiro/Eddie Murphy film Show-

time. I appeared often as a guest on shows ranging from

the very serious Nightline to Larry King’s show to sitcoms

like The Hughleys. Saturday Night Live and Seinfeld

parodied me.” Jd. As the Los Angeles Times noted in a 2002

interview, “his face and name are known everywhere there

is CNN. He may be the first private citizen in history to

have such a huge worldwide recognition factor.” Benjamin

Levine, A Cause Celebre, L.A. Times, Sept. 29, 2002,

at Part 5, Page 1. The website for his law firm, “The

Cochran Firm: America’s Law Firm,” describes itself

as “one of America’s largest personal injury plaintiff

law firms.” (http//www.cochranfirm.com (last visited, Nov. 4,

2004)). As the Court of Appeal observed, Cochran “will-

ingly concedes” his status as a public figure. (JA 60.)

The trial court’: order is simply unprecedented in

permanently enjoining Petitioners Tory and Craft from

ever saying anything about a major national public figure

in any public forum ever again. Moreover, the injunction is

antithetical to the First Amendment’s commitment to

debate about important issues of public concern. The

speech restrained in this case was not idle gossip about a

celebrity; it was about the practice of law and the opera-

tion of the legal system. This Court has 1 +cognized that

there is un “extremely important” public interest concern-

ing the conduct of lawyers. Middlesex County Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434

(1982); see also Goldfarb v. Virginia State Bar, 421 U.S.

773, 793 (1975) (citation omitted) (“lawyers are essential

to the primary governizental function of administering

justice, and have historicaily been ‘officers of the courts.’”)

Those who have been invoived in the legal system must be

encouraged to-speak to inform the press and the public of

their experiences, including how they were treated by

lawyers and judges.

This Court has recognized that “[t]he sort of robust

political debate encouraged by the First Amendment is

bound to produce speech. that is critical of those who hold

public office or those public figures who are ‘intimately

involved in the resolution of important public questions or,

by reason of their fame, shape events in areas of concern

to society at large.’” Hustler Magazine v. Falwell, 485 U.S.

46, 56 (1988) (citations omitted). All of the speech that

gave rise to this lawsuit expressed Tory’s opinions about

Cochran’s conduct as a lawyer and how Tory was treated

by the legal system. (JA 53-54.) The permanent injunction

upheld by the California Court of Appeal thus has the

effect of forever silencing speech — critical or praising, fact

or opinion — about the performance of a lawyer who holds

a prominent position in the American legal system and

American culture.

II. COURT ORDERS PERMANENTLY ENJOIN-

ING SPEECH ARE PRIOR RESTRAINTS.

Astoundingly, the California Court of Appeal held that

a permanent injunction on speech is not a prior restraint.

(JA 56-57.) The Court of Appeal said that the very broad

permanent injunction on Tory’s and Craft’s future speech

was not a prior restraint because there was an adjudica-

tion that some of Tory’s prior speech was unprotected. (Jd.)

The Court of Appeal’s conclusion cannot be reconciled with

this Court’s decisions that clearly and unequivocally hold

that a court order permanently enjoining speech is a prior

restraint, even if it follows a judicial proceeding. Nor can

the Court of Appeal’s conclusion that there is no prior

restraint be reconciled with the fact that the permanent

injunction allows Tory and Craft to speak about Cochran

or his law firm only if they first get the Superior Court

judge’s permission. (JA 34.)

This Court has expressly declared that “permanent

injunctions ... that actually forbid speech activities are

classic examples of prior restraints” because they impose a

“true restraint on future speech.” Alexander v. United

States, 509 U.S. 544, 550 (1993); see also id. at 572 (Ken-

nedy, J., dissenting) (the prior restraint doctrine “encom-

passes injunctive systems which threaten or bar future

speech based on some past infraction.”) In Alexander, the

Court discussed three prior decisions of this Court holding

that permanent injunctions on speech are inconsistent

with the First and Fourteenth Amendments to the United

States Constitution. Jd. at 550. These cases clearly hold

that a permanent injunction on speech, such as the injunc-

tion in this case, is a prior restraint.

The seminal case concerning prior restraints is Near

v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a

newspaper appealed from a permanent injunction issued

after a case “came on for trial.” Jd. at 705-06. The injunc-

tion in that case “perpetually” prevented the defendants

from publishing again because, in the preceding trial, the

lower court determined that the defendant’s newspaper was

“‘chiefly devoted to malicious, scandalous and defamatory

articles.’” Jd. at 706. As the Court in Alexander explained,

“Near, therefore, involved a true restraint on future speech

— a permanent injunction.” Alexander, 509 U.S. at 550. The

Near Court held that such an injunction on future speech,

even if preceded by the publication of defamatory material,

was unconstitutional. 283 U.S. at 721.

The Court in Alexander also discussed Organization

for a Better Austin v. Keefe, 402 U.S. 415 (1971), in which a

group of picketers and pamphleteers were enjoined from

protesting a real estate developer’s business practices.

Alexander, 509 U.S. at 550. Although this Court noted that

the injunction in Keefe was labeled “temporary” by the

trial court, it was treated as permanent since its label was

“little more than a formality,” it had been in effect for

years, it had been issued after an “adversary hearing,” and

it “already had [a] marked impact on petitioners’ First

Amendment rights.” Keefe, 402 U.S. at 417-18 & n.1. This

Court struck down the injunction in Keefe as “an imper-

missible restraint on First Amendment rights.” Jd. at 418.

In words that are particularly apt for this case, this Court

held that the “claim that the expressions were intended to

exercise a coercive impact on respondent does not remove

them from the reach of the First Amendment.” Jd. at 418-

419. The Court stressed that “[nJo prior decisions support

the claim that the int rest of an individual in being free

from public criticism of his business practices in pam-

phlets or leaflets warrants use of the injunctive power of a

court.” Id.

In Vance v. Universal Amusement Co., 445 U.S. 308

(1980), the third permanent injunction case cited in

Alexander, this Court invalidated a Texas statute that

authorized courts, upon a showing that the defendant had

shown some obscene films in the past, to issue an injunc-

tion of indefinite duration prohibiting the defendant from

showing any films in the future even if those films had not

yet been found to be obscene. Vance, 445 U.S. at 311. The

three-judge District Court in Vance, whose decision was

affirmed by this Court, held that, as in Near, “the state

‘made the mistake of prohibiting future conduct after a

finding of undesirable present conduct,” and that such a

“general prohibition would operate as a prior restraint on

unnamed motion pictures” in violation of the First

Amendment. Vance, 445 U.S. at 311-12 & n.3, 316-17

(quoting Universal Amusement Co. v. Vance, 404 F. Supp.

33, 44 (S.D. Tex. 1975)).

Injunctions are treated as prior restraints because

that is exactly what they are: a prohibition of future

expression. As this Court noted, injunctions “carry greater

risks of censorship and discriminatory application than do

general ordinances.” Madsen v. Women’s Health Center,

Inc., 512 U.S. 753, 764 (1994). Justice Scalia’s opinion in

Madsen, which was joined by Justice Thomas and Justice

Kennedy, explained that “an injunction against speech is

the very prototype of the greatest threat to First Amend-

ment values, the prior restraint.” Jd. at 797 (Scalia, J.,

concurring in judgment in part and dissenting in part).

Injunctions may be used to “suppress the ideas in question

rather than to achieve any other proper governmental

ad mt, “

aim.” Jd. at 792-93. Injunctions are “the product of indi-

vidual judges rather than of legislatures — and often of

judges who have been chagrined by prior disobedience of

their orders. The right to free speech should not lightly be

placed within the control of a single man or woman.” Jd. at

793. As Justice Scalia cautioned, “the injunction is a much

more powerful weapon than a statute, and so should be

subjected to greater safeguards.” Jd. Violations of an

injunction, even an _ unconstitutional injunction, are

punishable by contempt, while violations of unconstitu-

tional laws never can be punished. Walker v. City of

Birmingham, 388 U.S. 307, 320-321 (1967) (upholding

collateral bar rule precluding those violating an injunction

from later challenging its constitutionality).

The California Court of Appeal incorrectly concluded

that a permanent injunction is not a prior restraint if it

follows a trial. (JA 56-57.) But Near, Keefe, and Vance

establish that even though a permanent injunction follows

a trial, it is still unquestionably a prior restraint on

speech. The permanent injunction in this case, by its very

terms, prevents future speech. It is not limited to prevent-

ing repetition of false statements of fact that are of and

concerning the plaintiff and uttered with actual malice —

defamatory speech beyond the reach of the First Amend-

ment; the injunction prevents any future statement by

Tory or Craft about Cochran. Under the terms of the

court’s order, Tory and Craft can speak about Cochran and

his law firm only if they first go to the Superior Court and

receive its permission through a modification of the court

order. (JA 34.) As in Near, Keefe, and Vance, this unques-

tionably makes the permanent injunction a prior restraint.

III. ACOURT ORDER PERMANENTLY ENJOINING

SPEECH IS NOT A PERMISSIBLE REMEDY IN A

DEFAMATION CASE, PARTICULARLY WHEN

THE PLAINTIFF IS A PUBLIC FIGURE.

Prior restraints on speech constitute “the most serious

and least tolerable infringement on First Améndment

rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559

(1976). Thus, the First Amendment “accords greater

protection against prior restraints than it does against

subsequent punishment for a particular speech.” Id. at

589. There is a “deeply-seated American hostility to prior

restraints.” Jd. This Court has stressed that “‘[a]ny system

of prior restraints of expression comes to this Court

bearing a heavy presumption against its constitutional

validity.” Vance, 445 U.S. at 317 (emphasis in original,

quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963)). This Court has often repeated, in many distinct

contexts, its antipathy towards “systems” of prior re-

straints on speech.‘ “It is because of the personal nature”

* See, e.g., CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Black-

mun, J., Circuit Justice) (finding temporary injunction on broadcast

unconstitutional despite allegations that broadcast would be defama-

tory and cause economic harm); Nebraska Press Ass’n,, 427 U.S. at 556

(applying prior restraint doctrine to reject gag order on participants in

a criminal trial); New York Times Co. v. United States, 403 U.S. 714

(1971) (per curiam opinion applying prior restraint doctrine to strike

down injunction on publication of confidential government documents,

and, in separate opinions, “every member of the Court, tacitly or

explicitly, accepted the Near and Keefe condemnation of prior restraints

as presumptively unconstitutional,” Pittsburgh Press Co. v. Pittsburgh

Comm'n on Human Relations, 413 U.S. 376, 396 (1973) (Burger, C.J.,

dissenting)); Bantam Books, 372 U.S. at 70-71 (listing cases striking

down prior restraints and rejecting as “informal censorship” local

commission’s ability to list certain publications as “objectionable” and to

threaten prosecution for their sale); Near, 283 U.S. at 706, 722-23

(rejecting injunction on future publication of newspaper despite

(Continued on following page)

of the right of free speech that this Court has “rejected all

manner of prior restraint on publication, despite strong

arguments that if the material was unprotected the time

of suppression was immaterial.” Curtis Publ’g Co. v. Butts,

388 U.S. 130, 149 (1967) (plurality opinion) (citation

ovnitted).

The strong presumption against prior restraints is

evidenced by the fact that this Court never has upheld a

prior restraint as a permissible remedy in a defamation

action. The absence of a single Supreme Court decision

approving a prior restraint as a remedy in a defamation

case reflects the historical condemnation of injunctions in

such actions, the inherent adequacy of money damages,

and the inevitable futility of crafting an injunction that is

both effective and narrowly tailored. Moreover, injunctions

especially should never be allowed when the plaintiff is a

public official or public figure because of the indisputable

importance of social discussion about these individuals

and because such individuals generally have other reme-

dies, such as access to the media to respond to any attacks

on their reputation.

publisher’s previous dissemination of defamatory material). See also

Madsen, 512 U.S. at 798 (Scalia, J., concurring in judgment in part and

dissenting in part) (listing cases and observing that this Court has

“repeatedly struck down speech-restricting injunctions”); Avis Rent A

Car Sys., Inc. v. Aguilar, 529 U.S. 1138, 1140 (2000) (Thomas, J.,

dissenting from denial of certiorari) (urging granting of certiorari to

“address the troubling First Amendment issues raised” by an injunction

imposing “liability to the utterance of words in the workplace”).

A. Prior Restraints Are Not A Constitutionally

Permissible Remedy In Defamation Cases.

1. Permanent Injunctions Historically Have

Not Been A Permissible Remedy in Defa-

mation Actions.

The traditional rule of Anglo-American law is that

equity has no jurisdiction to enjoin defamation. See Rod-

ney Smolla, Law of Defamation § 9:85 (2d ed. 2004);

Michael I. Meyerson, The Neglected History of the Prior

Restraint Doctrine: Rediscovering the Link Between the

First Amendment and Separation of Powers, 34 Ind. L.

Rev. 295, 308-311, 324-330 (2001); 43A C.J.S. Injunctions

§ 255 (2004); W.E. Shipley, Injunction as Remedy Against

Defamation of Person, 47 A.L.R.2d 715, 715-16 (1956).

The rule was established in Eighteenth-Century

England, well before the American revolution. Its earliest

statement is found in Roach v. Garvan, 26 Eng. Rep. 683

(Ch. 1742), where Lord Chancellor Hardwicke remarked in

a case involving a newspaper that printed commentary _

that was both libelous and a contempt of court:

Mr. Solicitor General has put it upon the right

footing, that notwithstanding this should be a li-

bel, yet, unless it is a contempt of the court, I

have no cognizance of it: For whether it is a libel

against the public or private persons, the only

method is to proceed at law.

Three-quarters of a century later, Thomas Howell,

barrister and editor of the State Trials series, tellingly

explained the strong consensus that equity had no power

to restrain defamation: “I believe there is not to be found

in the books any decision or any dictum, posterior to the

days of the Star Chamber, from which such doctrine can be

deduced, either directly or by inference or analogy.” 20

Thomas B. Howell, A Complete Collection of State Trials

799 (1816). o

Nineteenth and Twentieth Century American courts,

with remarkable uniformity, adopted the traditional

English rule. Shipley, supra, at 716-21. See, e.g., Life Ass’n

of Am. v. Boogher, 3 Mo. App. 173, 176, 179-80 (1876);

Balliet v. Cassidy, 104 F. 704, 706 (C.C.D.Or. 1900); Howell

uv. Bee Publ’g Co., 158 N.W. 358, 359 (Neb. 1916); Willing v.

Mazzocone, 393 A.2d 1155, 1157-58 (Pa. 1978); Meyerson,

supra, at 324-330. Free speech concerns were prominent

among the reasons given for their position. In the very

first American case on the subject, New York’s Chancellor

Walworth began his opinion refusing to enjoin the publica-

tion of a libelous pamphlet by saying:

It is very evident that this court cannot assume

jurisdiction of the case . . . or of any other case of

the like nature, without infringing upon the lib-

erty of the press, and attempting to exercise a

power of preventive justice which ... cannot

safely be entrusted to any tribunal consistently

with the principles of a free government.

Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839).

In 1882, the Louisiana Supreme Court issued an

elaborate opinion refusing to enjoin a newspaper from

printing libelous cartoons. After discussing the constitu-

tional prohibition of prior restraints, the court depicted the

traditional common law rule as central to preventing a

legal regime in which “with a subservient or corrupt

judiciary, the press might be completely muzzled, and its

just influence upon public opinion entirely paralyzed.”

State ex rel. Liversey v. Judge of Civil Dist. Court, 34 La.

Ann. 741, 745 (1882).

In 1909, a United States Circuit Court interpreted the

Alabama Constitution as prohibiting equity from restrain-

ing defamation, saying:

The wrongs and injury, which often occur from

lack of preventive means to suppress slander, are

parts of the price which the people, by their or-

ganic law, have declared it is better to pay, than

to encounter the evils which might result if the

courts were allowed to take the alleged slanderer

or libeler by the throat, in advance.

Citizens’ Light, Heat & Power Co. v. Montgomery Light &

Water Power Co., 171 F. 553, 556 (C.C.M.D. Ala. 1909).

The traditional rule that equity does not enjoin

defamation is reflected in the briefs submitted to this

Court in Near v. Minnesota, 283 U.S. 697 (1931). Near

argued that “(t]he general rule is that equity will not

under any circumstances enjoin defamation as such.”

Appellant’s Brief, Near, 1930 WL 28681 (page numbers not

available). In supporting this proposition, Near cited three

treatises and discussed over twenty cases directly support-

ing his claim. Jd. The State, in arguing that “[t]he court

has power to restrain by injunction publication of defama-

tory matter,” relied on just two far less apposite cases.

Brief of Appellee, Near, 1931 WL 30640, at *10. This

Court’s holding in Near was in line with centuries of

English and American decisions. The Court explained that

the injunction of speech in Near — like the injunction

issued in this case — was an “unusual, if not unique”

imposition on the freedom of speech. Near, 283 U.S. at

707.

2. Damages Are A Sufficient Remedy For

Plaintiffs In Defamation Cases.

Justice Scalia observed that “[p]unishing unlawful

action by judicial abridgment of First Amendment rights is

an interesting concept; perhaps Eighth Amendment rights

could be next. I know of no authority for the proposition that

restriction of speech, rather than fines or imprisonment,

should be the sanction for misconduct.” Madsen, 512 U.S. at

794 n.1 (Scalia, J., concurring in judgment in part and

dissenting in part). See also Aguilar, 529 U.S. at 1143

(Thomas, J., dissenting from denial of certiorari) (“money

damages” for future use of unprotected language in the

workplace is preferable to an injunction on the same words).

Justice Scalia’s observation is based on a wealth of

support in the annals of jurisprudence, particularly in the

pages of Near, where this Court already has announced

that damages and other methods of punishing past speech

— not restraints on future speech — are the appropriate

remedies in defamation cases. In Near, this Court drew a

line between damages as a permissible remedy for past

speech and an impermissible system that proscribes future

speech: “Public officers, whose character and conduct

remain open to debate and free discussion in the press,

find their remedies for false accusations in actions under

libel laws providing for redress and punishment, and not

in proceedings to restrain the publication of newspapers

and periodicals.” Near, 283 U.S. at 718-19.

Courts long have recognized that damages, not injunc-

tions, are the appropriate remedy in a defamation action. In

the first days of the Republic, even before the adoption of

the First Amendment, the court in Respublica v. Oswald, 1

USS. (1 Dall.) 319 (1788), explained that although “libelling

[sic] is a great crime,” it is well-understood that “any

attempt to fetter the press” is unacceptable. Jd. at 324-25.

Even though the defendant’s “offence [sic] [was] great and

persisted in,” the Court did not enjoin the defendant’s

future speech. Jd. at 328.

Similarly, well over a century ago, in Francis v. Flinn,

118 U.S. 385 (1886), this Court stressed that damages, not

injunctions, are the proper remedy in defamation actions.

In expressing the general rule that equitable relief is not

permissible when there are remedies at law, the Court

stated: “If the publications in the newspapers are false and

injurious, he can prosecute the publishers for libel. If a

court of equity can interfere and use its remedy of injunc-

tion in such cases, it would draw to itself the greater part

of the litigation belonging to courts of law.” Jd. at 389.

In other cases, too, this Court has recognized that

damages, not injunctions, are the appropriate remedy in

defamation cases. For example, in Pennekamp v. Florida,

328 U.S. 331 (1946), this Court reversed a judgment of

contempt against a newspaper editor responsible for

publishing editorials that purportedly were contemptuous

of judges and the administration of criminal justice in

pending cases. Jd. at 350. The Supreme Court of Florida,

upholding the lower court’s citation for contempt, ex-

plained that a newspaper may generally criticize a judge,

but “‘may not publish scurrilous or libelous criticisms of a

presiding judge as such or his judgments for the purpose of

discrediting the Court in the eyes of the public.’” Id. at 343

n.6. Nevertheless, this Court concluded that the contempt

citation must be reversed to encourage debate on public

issues, and also because, “when the statements [about a

judge] amount to defamation, a judge has such a remedy

in damages for libel as do other public servants.” Jd. at

348-49.

Precluding prior restraints does not leave those

defamed without remedy, or render the law powerless to

deter defamation. This Court has upheld, with crucial

limitations, the ability of public officials and public figures

to recover damages in defamation cases. Sullivan, 376

U.S. at 283. The Sullivan Court stressed that damage

awards, even against major metropolitan newspapers, are

a potent weapon for the defamation plaintiff and noted

that “[t]he fear of damage awards ... may be markedly

more inhibiting than the fear of prosecution under a

criminal statute.” Id. at 277-78.

Despite these cautionary observations about the

potential impact of damage awards, damages remain an

available remedy in defamation cases if the First Amend-

ment’s requirements are met. In this case, the injunction

was issued despite the fact that no damages were awarded

because the plaintiff, Johnnie Cochran, waived his right to

seek damages and conceded at trial that he could show no

special damages. (RT 55:20-28.) The Superior Court found

that Cochran never proved the “existence and amount of

damages.” (JA 37-38.) In such a situation, there is hardly

the irreparable injury warranting equitable relief.’

* An opinion from the Supreme Court of Pennsylvania, with facts

remarkably similar to those at bar, persuasively reasoned that damages

are the sole remedy available to plaintiffs in defamation actions.

Willing v. Mazzocone, 393 A.2d 1155, 1156-58 (Pa. 1978). In Willing, the

Court struck down as unconstitutional an injunction preventing an

individual from picketing her former lawyers (claiming that the lawyers

“stole” her money and “sold her out”), even though the former client was

demanding the repayment of money that she clearly was not owed. Id.

(Continued on following page)

Monetary damages are the appropriate remedy in a

defamation action. Injunctions, such as that issued in this

case, should not be permitted.

3. Effective Injunctions In Defamation

Cases Are Inherently Overbroad and

Inevitably Put Courts In The Role of

Being Perpetual Censors Determining

Whether Speech Can Occur.

Injunctions have not been, and should not be permitted

in defamation cases for another reason: it is impossible to

formulate an effective injunction that would not be extremely

overbroad and that would not place the court in the role of

the censor, continually deciding what speech is allowed and

what is prohibited. Any effective injunction will be overbroad,

and any limited injunction will be ineffective.

Prior restraints, such as injunctions, are a “‘most

extraordinary remed[y]’” to be used “only where the evil

that would result from the reportage is both great and

certain and cannot be militated by less intrusive means.”

CBS, 510 U.S. at 1317 (Blackmun, J., Circuit Justice).

There can be no constitutional justification for such an

extreme remedy unless it can be properly tailored and

would actually serve its purpose. An injunction “issued in

the area of First Amendment rights must be couched in

the narrowest terms that will accomplish the pin pointed

objective permitted by constitutional mandate and the

essential needs of the public order.” Carroll v. President

The Willing Court also soundly rejected the contention that injunctive

relief was the only adequate remedy because the picketing former client

could not afford to pay a money judgment, and thus, practically, there

was not an adequate remedy at law Id. at 1158.

—_—-~-- =

—-~

and Comm'rs of Princess Anne, 393 U.S. 175, 183 (1968).

Moreover, this Court has acknowledged that it “must also

assess the probable efficacy of [a] prior restraint of publi-

cation as a workable method,” and “cannot ignore the

reality of the problems of managing” such orders. Ne-

braska Press, 427 U.S. at 565. As the axiom goes, “a court

of equity will not do a useless thing.” New York Times, 403

U.S. at 744 (Marshall, J., concurring).

In defamation cases, the injunction either must be

limited to the exact communication already found to be

defamatory, or reach more broadly and restrain speech

that no jury has ever determined to be libelous. Most

egregiously, as in the present case, the injunction can go so

far as to prevent any future speech about the plaintiff. An

injunction that is limited to preventing repetition of the

specific statements already found to be defamatory is

useless because a defendant can avoid its restrictions by

making the same point using different words without

violating the court’s order.

Moreover, even if the injunction is limited to particu-

lar statements already found false, defamatory, and

uttered with the requisite mental state, a prospective

prohibition on the same comments cannot guarantee

satisfaction of the elements of defamation at every point in

the future. A statement that was once false may become

true later in time. Likewise, even if a defendant in a

defamation action once acted with the requisite degree of

culpability, he or she may have a different mental state

later. Defamatory statements about public figures are

outside the scope of the First Amendment only when the

plaintiff can “prove both that the statement was false and

that the statement was made with the requisite level of

culpability.” Hustler Magazine, 485 U.S. at 52 (emphasis

in original). Permitting permanent injunctive relief in a

defamation case absolves the defamation plaintiff of his or

her burden to demonstrate falsity and culpability each

time a purportedly defamatory statement is made. Thus,

unlike injunctions on particular obscene motion pictures,

enjoining “defamatory” speech will inherently reach too far

and be overbroad because “[i]t is always difficult to know

in advance what an individual will say, and the line

between legitimate and illegitimate speech is often so

finely drawn that the risks of freewheeling censorship are

formidable.” Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 559 (1975).

An injunction that reaches more broadly than the

exact words already held to be libelous is overbroad for the

very reason that it restrains communication before a jury

determination of whether it is or is not protected by the

First Amendment. Because it delays communication that

may be non-defamatory and protected by the First

Amendment, it is the essence of a prior restraint.

Just as it is “always difficult to know in advance what

an individual will say,” Southeastern Promotions, 420 U.S.

at 559, it is also difficult to know in advance who will

speak. Any injunction designed to restrict speech effec-

tively must encompass others besides the defamation

defendant, such as Ruth Craft in this case. But that

inevitably involves stripping persons not before the court

of their First Amendment rights without sufficient due

process. See Hansbury v. Lee, 311 -U.S. 32, 40 (1940)

(*“[O]Jne is not bound by a judgment in personam in a

litigation in which he is not designated as a party or to which

he has not been made a party by service of process.”); Martin

v. Wilks, 490 U.S. 755, 761 (1989) (non-parties cannot be

bound by judgments). On the other hand, even the most

over-reaching injunction on defamatory statements will

also be under-inclusive, and therefore ineffective, since a

third party, completely unaffiliated with the defendant

and not bound by the injunction, can — at his financial

peril — repeat the same statements already determined to

be defamatory. See Nebraska Press, 427 U.S. at 609 n.36

(Brennan J., concurring) (lamenting the futility of under-

inclusive injunctions on speech).

In addition, an injunction that reaches more broadly

than the exact communication already held to be defama-

tory has the effect of forcing a defendant to go to court any

time he or she wants to say anything about the plaintiff

and prove to the court that the intended statement is not

defamatory. This is exactly the nature of the injunction in

this case: it prohibits Tory, and even Craft who was not a

party to the litigation, from saving anything about Coch-

ran in any public forum until and unless they go back to

the court and obtain the judge’s permission to speak. That

brand of judicial clearance is what this Court in Near

called “the essence of censorship.” 283 U.S. at 713.

In Near, this Court emphatically rejected the notion

that even one who had previously been found liable for

printing defamatory matter could be forced to prove to a

judge that future statements “are true and are published

with good motives and for justifiable ends.” Near, 283 U.S.

at 713. The injunction in this case, as in any defamation

case, is precisely that type of censorship, as those enjoined

will not be able to say anything about the subject without

first getting permission from a judge. Such restrictions

inevitably put the court in the classic role of the censor

and are intolerable under the First Amendment.

4. Allowing Injunctions As A Remedy In

Defamation Cases Would Be A Radical

Change In The Law With A Devastating

Effect On Freedom Of Speech.

In 1931, this Court noted that, “for approximately one

hundred and fifty years there has been almost an entire

absence of attempts to impose previous restraints on

publication relating to the malfeasance of public officers;”

the Court thus reaffirmed the “deep-seated conviction that

such restraints would violate constitutional right.” Near,

283 U.S. at 718. The same certainly holds true today

almost three-quarters of a century later. This Court has

never, in all of American history, even once upheld a prior

restraint in the defamation context. This Court has sanc-

tioned injunctions on speech only in the most “exceptional

cases,” such as those involving obscenity, incitements to

violence and “the publication of the sailing dates of trans-

ports or the number and location of troops.” Near, 283 U.S.

at 716. See also Nebraska Press, 427 U.S. at 590-91 (Bren-

nan, J., concurring) (explaining that this Court has limited

injunctions on speech only to these “three such possible

exceptional circumstances”).

The few scenarios where this Court has even contem-

plated prior restraints are readily distinguishable from

any case involving defamation. For example, in Kingsley

Books, Inc. v. Brown, 354 U.S. 436 (1957), this Court

explained that injunctions on materials already deemed

obscene are “glaringly different” from the injunction of a

publication “because its past issues had been found offen-

sive.” Id. at 445. Reiterating Near’s admonition that the

latter type of injunctions are the “‘essence of censorship,’”

the Kingsley Court “studiously withh[eld] restraint uvon

matters not already published and not yet found offensive.”

Id. im this case, by contrast, the court has enjoined Tory

and Craft from saying anything about Cochran, and thus

has restrained speech that has not yet been “published

and not yet found offensive.”

Similarly, even Near’s allowance for injunctions on

national security grounds was greatly circumscribed in the

“Pentagon Papers” case, New York Times v. United States,

403 U.S. 713 (1971), where this Court emphasized that the

government failed to meet the very heavy burden needed

to sustain a court order enjoining speech.

In Pittsburgh Press, this Court upheld a “narrowly

drawn” rule prohibiting the “placement in sex-designated

columns of advertisements for nonexempt job opportuni-

ties.” 413 U.S. 376, at 391. The Court invoked Near and

“reaffirm[ed] unequivocally the protection afforded to

editorial judgment and to the free expression of views...

however controversial.” Jd. Furthermore, in Pittsburgh

Press, the Court stressed that the Commissiun’s order

preventing sex-based want ads could not be enforced by

contempt sanctions because “(t]he Commission is without

power to punish summarily for contempt.” Jd. at 390 n.14.

That is very different from a court order enjoining speech,

such as in this case, where any violations are punishable

by contempt.

Consistent with the presumptive invalidity of all

systems of prior restraints, most jurisdictions adhere to

the maxim that “equity will not enjoin a libel.” Smolla,

* See, e.g., Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel

Employees and Restaurant Employees Int'l Union, 239 F.3d 172, 177-78

(2d Cir. 2001); Community for Creative Non-Violence v. Pierce, 814 F.2d

663, 672 (D.C.Cir. 1987); In re Providence Journal Co., 820 F.2d 1342,

1345-46 (1st Cir. 1986); United States v. Doe, 455 F.2d 753, 760 n.4 (1st

(Continued on following page) :

supra, at §9.85 at 9-56. Unfortunately, several jurisdic-

tions already have departed from the sound reasoning in

Near.’ This trend must end with a decisive rejection of

permanent injunctions in the defamation context, or else

“the constitutional limits of free expression in the Nation

[will] vary with state lines,” Pennekamp, 328 U.S. at 335,

and “judges at all levels” will be interjected “into censor-

ship roles that are simply inappropriate and impermissi-

ble under the First Amendment.” Nebraska Press, 427 U.S.

at 607 (Brennan, J., concurring). Such a result would be

an unacceptable and unprecedented abridgment of the

First Amendment.

Cir. 1972); Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967); Crosby v.

Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963); American Malting Co.

v. Keitel, 209 F. 351, 354-56 (2d Cir. 1913); Robert E. Hicks Corp. v. Natl

Salesmen’s Training Ass'n, 19 F.2d 963, 964 (7th Cir. 1927); Hajek v.

Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983); Willing v.

Mazzocone, 393 A.2d 1155, 1157-58 (Pa. 1978); Greenberg v. Burglass,

229 So.2d 83, 86-89 (La. 1969); Mescalero Apache Tribe v. Allen, 469

P.2d 710, 711 (N.M. 1970); Schmoldt v. Oakley, 390 P.2d 882, 884-87

(Okla. 1964); Prucha v. Weiss, 197 A.2d 253, 256 (Md. 1964); Kwass v.

Kersey, 81 S.E.2d 237, 243-46 (W.V. 1954); Moore v. City Dry Cleaners &

Laundry, Inc., 41 So.2d 865, 873 (Fla. 1949); Montgomery Ward & Co. v.

United Retail, Wholesale & Dep’t Store Employees, 79 N.E.2d 46, 48-50

(Ill. 1948); Marlin Fire Arms Co. v. Shields, 64 N.E. 163, 165-67, 171

N.Y. 384, 391-96 (N.Y. 1902); Beck v. Ry. Teamsters’ Protective Union, 77

N.W. 13, 24 (Mich. 1898). ~

” See, e.g., San Antonio Cmty. Hosp. v. Calif. Dist. Council of

Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997); Brown v. Petrolite

Corp., 965 F.2d 38, 50-51 (5th Cir. 1992); Lothschuetz v. Carpenter, 898

F.2d 1200, 1206-09 (6th Cir. 1990); Advanced Training Systems, Inc. v.

Caswell Equipment Co., Inc., 352 N.W.2d 1, 11 (Minn. 1984); Retail

Credit Co. v. Russell, 218 S.E.2d 54, 62-63 (Ga. 1975); O’Brien v. Univ.

Comty. Tenants Union, Inc., 327 N.E.2d 753, 755 (Ohio 1975); Guion v.

Terra Mktg. of Nevada, Inc., 523 P.2d 847, 848 (Nev. 1974); Carter v.

Knapp Motor Co., 11 So.2d 383, 385 (Ala. 1943); Menard v. Houle, 11

N.E.2d 436, 437 (Mass. 1937).

B. At A Minimum, Injunctive Relief Should

Not Be Available To- Public Figure Plain-

tiffs In Defamation Cases.

The only way to adequately safeguard free expression

is to mandate that no kind of civil defamation plaintiff

may obtain injunctive relief, but the point takes on an

added urgency where, as here, the plaintiff is a public

official or a public figure. Public figures “are less vulner-

able to injury from defamatory statements because of their

ability to resort to effective ‘self-help’ ”; they “usually enjoy

significantly greater access than private individuals to

channels of effective communication, which enable them

through discussion to counter criticism and expose the

falsehood and fallacies of defamatory statements.” Wolston

v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 164 (1979).

There is no indication that Cochran resorted to “self-help”

by publicly countering Tory’s criticisms; nor any indication

that Cochran suffered real injury since Cochran waived

his right to seek money damages and conceded at trial

that he had no evidence Tory’s activities caused him to lose

any business. (RT 2:7-10, 55:20-28.)

“([MJore importantly,” this Court has held that “public

figures are less deserving of protection than private persons

because public figures, like public officials, have ‘voluntarily

exposed themselves to increased risk of injury from defama-

tory falsehood concerning them.’” Wolston, 443 U.S. at 164.

Put simply, even if private individuals were entitled to

injunctive relief in defamation cases, the purposes and

history of the First Amendment and prior restraint juris-

prudence do not support the notion that public figures

should be able to enjoy the benefits of such a remedy.

This Court has recognized the importance of speech

about public figures, especially those, such as Johnnie

Cochran, who play such an important role in the American

legal system. As Chief Justice Earl Warren observed in

words that are particularly apt for this case:

[I]t is plain that although they are not subject to

the restraints of the political process, ‘public fig-

ures,’ like ‘public officials,’ often play an influen-

tial role in ordering society. And surely as a class

these ‘public figures’ have as ready access as

‘public officials’ to mass media of communication,

both to influence policy and to counter criticism

of their views and activities. Our citizenry has a

legitimate and substantial interest in the con-

duct of such persons, and freedom of the press to

engage in uninhibited debate about their in-

volvement in public issues and events is as cru-

cial as it is in the case of ‘public officials.’ The

fact that they are not amenable to the restraints

of the political process only underscores the le-

gitimate and substantial nature of the interest,

since it means that public opinion may be the

only instrument by which society can attempt to

influence their conduct.

Butts, 388 U.S. at 164 (Warren, C.J., concurring); see also

Milkovich v. Lorain Journal, 497 U.S. 1, 15 (1990) (quot-

ing Chief Justice Warren’s concurring opinion in Butts).

Public figures, such as Johnnie Cochran, must accept that

a consequence of their celebrity — here plainly sought and

embraced — is that they may be subjected to “vehement,

caustic, and sometimes unpleasantly sharp attacks.”

Sullivan, 376 U.S. at 270. This is an inherent consequence

of the First Amendment because “freedom to speak one’s

mind is not only an aspect of individual liberty — and thus

a good unto itself — but also is essential to the common

quest for truth and the vitality of society as a whole.” Bose

Corp. v. Consumers Union of United States, Inc., 466 U.S.

485, 503-04 (198: This is especially important here

where the criticism was targeted not just at Cochran, but

also at lawyers and the legal profession, subject matter

about which robust debate should be encouraged.

Even if, under some limited circumstance, injunctions

on future speech about private persons could be considered

consistent with the First Amendment — which Petitioners

dispute — the paramount importance of an open and free

discourse regarding public persons imposes a constitu-

tional bar on their ability to obtain injunctive relief in the

defamation context.

IV. ANY PERMISSIBLE PRIOR RESTRAINT MUST

BE NARROWLY TAILORED, BUT THE PER-

MANENT INJUNCTION IN THIS CASE IS

EXTREMELY BROAD.

A. If APrior Restraint Is Ever Permissible, It

Must Be Narrowly Tailored.

Consistent with this Court’s abhorrence of prior

restraints, it has ruled that any injunction restricting

speech must “burden no more speech than necessary to

serve a significant government interest.” Madsen, 512 U.S.

at 765. Put another way, an injunction on speech “must be

couched in the narrowest terms that will accomplish the

pin-pointed objective” of the injunction. Carroll, 393 U.S.

at 183.

The Court of Appeal upheld the permanent injunction

in this case based on its expressed premise that the

overbreadth doctrine does not apply to permanent injunc-

tions. (JA 56-57.) This is plainly wrong. This Court has

made clear that any restriction of speech is unconstitu-

tional if it regulates substantially more speech than the

Constitution allows to be regulated. See, e.g., NAACP v.

Button, 371 U.S. 415, 433 (1963) (“Because First Amend-

ment freedoms need breathing space to survive, govern-

ment may regulate in the area only with narrow

specificity”). See also Board of Airport Commissioners uv.

Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987) (invali-

dating overbroad regulations prohibiting all “First

Amendment activities” at airports in Los Angeles); Hous-

ton v. Hill, 482 U.S. 451, 481 (1987) (declaring unconstitu-

tional an overbroad provision making it unlawful to

interrupt police officers in the course of their duties);

Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 61-2 (1981)

(striking as overbroad-an ordinance prohibiting all live

entertainment); Gooding v. Wilson, 405 U.S. 518 (1972)

(invalidating a fighting words statute). If they are permit-

ted at all, prior restraints in defamation actions brought

by public figures must be narrowly tailored and be limited

to defamatory statements outside the scope of First

Amendment protection: false statements of fact uttered

with actual malice.’

* Given these constitutional principles, lower courts consistently

reject overbroad permanent injunctions on speech. See, e.g., CPC Int'l,

Inc. v. Skippy Inc., 214 F.3d 456, 461-63 (4th Cir. 2000); Doe v. TCI

Cablevision, 110 S.W.3d 363, 375 (Mo. 2003). For instance, in Crosby v.

Bradstreet Co., 312 F.2d 483 (2d Cir. 1963), the Second Circuit struck

down a permanent injunction, issued after a defamation trial, prohibit-

ing “any” report or statement about a businessman or his brother. The

court determined that the injunction was an unconstitutional prior

restraint, but further observed that the injunction was defective

because it precluded “any” remarks, and was not, at a minimum,

“directed solely to defamatory reports, comments or statements.” Jd. at

485.

B. The Prior Restraint Imposed On Tory and

Craft Is Unconstitutionally Overbroad.

The prior restraint entered by the trial court and

affirmed by the Court of Appeal is breathtaking in its

scope and sweep; it is the antithesis of a narrowly drawn

order preventing speech.

First, the injunction is not limited to enjoining de-

famatory expression. In many ways, it extends far beyond

restricting defamatory speech because:

¢ It prohibits Tory and Craft from making any state-

ment about Cochran or his law firm, even if they are just

expressing opinion. Opinion, even if unflattering, is, of

course, protected by the First Amendment and cannot be

deemed defamatory. See, e.g., Milkovich v. Lorain Journal

Co., 497 U.S. 1, 20 (1990); Gertz, 418 U.S. at 339 (“The First

Amendment recognizes no such thing as a ‘false’ idea.”)’

¢ In addition to preventing Tory and Craft from

opining about Cochran, the injunction also prohibits other

forms of protected speech. For example, it prohibits speech

that otherwise would be protected by the litigation privi-

lege concerning pending cases. See, e.g., Cal. C. Civ. Proc.

§47(b) (defining California’s litigation privilege).

¢ The injunction is also not limited to preventing false

statements of fact that would be injurious to Cochran’s

* In fact, the statements which gave rise to this lawsuit were expres-

sions of opinion and were not defamatory at all. Many of the signs were not

directed at Cochran, such as “What can I do if I don’t receive the Justice the

_ Constitution guarantees me.” The ones that mentioned Cochran were just

expressing opinion, such as “Attorney Cochran, Don’t We Deserve at Least

the same Justice as O.J.” and “Unless You have O.J.’s Millions — You'll be

Screwed if you USE J.L. Cochran, Esq.”

—_—

reputation. Under the terms of the injunction, even speech

praising Cochran is prohibited. Completely true factual

statements about Cochran also are enjoined.

¢ The injunction continues forever, even if Johnnie

Cochran dies or his law firm dissolves. The law, of course,

does not recognize defamation claims for those who are

deceased. See, e.g., Gruschus v. Curtis Publ’g Co., 342 F.2d

775, 776 (10th Cir. 1965). But for the rest of their lives,

Tory and Craft never can utter a word about Cochran or

his law firm.

Second, the injunction is vastly overbroad in that it

applies to speech in any “public forum.” The Petitioners

could not walk down a sidewalk or through a park and say

anything to anyone about Johnnie Cochran. See, e.g., Hague

v. CIO, 307 U.S. 496, 515-16 (1939) (affirming that parks and

streets are public forums). For example, Tory and Craft

seemingly would violate the injunction, and be subject to

punishment for contempt, if either walked down a sidewalk

or through a public park, and said to a friend, “I think |

Johnnie Cochran did a good job in representing O.J. Simp-

son,” or “I saw Cochran being interviewed on television.”

Third, the startling overbreadth of the injunction is

most clearly manifest in its application to Ruth Craft and

Tory’s other “agents” and “representatives.” Craft never was

named as a defendant in the underlying lawsuit, she never

had an opportunity to defend herself at trial, and yet she is

one of only two people in America who may never mention

Cochran in public.” The wholesale stripping of Craft’s

First Amendment rights is inconsistent with any notions

® In contrast, Cochran’s firm never was named as a plaintiff in the

lawsuit, yet it is still shielded from critical speech.

of equity or due process. NAACP v. Claiborne Hardware

Co., 458 U.S. 886-919 (1982) (“‘guilt by association alone’

. ls an impermissible basis upon which to deny First

Amendment rights”). See also Martin v. Wilks, 490 U.S. at

761 (1989), Hansbury v. Lee, 311 U.S. at 40 (due process

prevents non-parties from being bound by judgments). The

permanent injunction is so Overwhelming in scope that

even this brief violates its terms since it is authored by

| Tory’s “agents” and “representatives,” it mentions Coch-

ran, and it is distributed in public fora.

CONCLUSION

This Court has emphasized that the First Amendment

protects the rights of the “lonely pamphleteer who uses

_ carbon paper or a mimeograph just as much as of the large

metropolitan publisher who utilizes the latest photocomposi-

tion methods.” Branzburg v. Hayes, 408 U.S. 665, 704 (1972).

Correspondingly, affirming the permanent injunction im-

posed in this case on a lonely picketer would have profound

consequences for all speakers, ranging from the pamphleteer

to the largest newspapers and television stations.

Abandoning Near v. Minnesota’s disapproval of injunc-

tive relief in defamation actions would mean that every

court, in every successful defamation case, could enjoin all

future speech by the defendant, or its agents, about the

plaintiff in any public forum. The richness of the English

language and the myriad ways of expressing any thought

_ means that the only effective way to enjoin defamation

_ would be, as here, to keep the defendant from ever uttering

another word about the plaintiff. Such a result runs contrary

| to the fundamental precepts of the First Amendment,

especially where the enjoined speech relates to a public

person and a public issue.

The permanent injunction in this case is a broad prior

restraint on speech about a public figure, on a matter of

public concern, striking at the very heart of the First

Amendment’s commitment “that debate on public issues

should be uninhibited, robust, and wide-open.” New York

Times Co. v. Sullivan, 376 U.S. at 270. This Court should

reverse the decision of the California Court of Appeal and

should reaffirm centuries of jurisprudence and the holding

in Near v. Minnesota: permanent injunctions of speech are

not a permissible remedy in defamation cases.

Respectfully submitted,

ERWIN CHEMERINSKY

Counsel of Record

DUKE UNIVERSITY LAW SCHOOL

Science Drive and Towerview Road

Durham, North Carolina 27708

(919) 613-7173

Gary L. BOSTWICK

JEAN-PAUL JASSY

SHEPPARD, MULLIN, RICHTER &

HAMPTON LLP

1901 Avenue of the Stars,

Suite 1600

Los Angeles, California 90067

(310) 228-3700

Counsel for Petitioners

Ulysses Tory and Ruth Craft

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.