Reply Brief — Tory v. Cochran

[Supreme Coun, U.S.

(i) FILED

JAN 2 0 2005

No. 03-1488

OFFICE OF THE CLERK

3n The

Supreme Court of the Anited States

¢

ULYSSES TORY AND RUTH CRAFT,

Petitioners,

V.

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’ REPLY BRIEF ON THE MERITS

S a

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

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

OR CALL COLLECT (402) 342-2831

LAM SPP ETRE HL Te

TABLE OF CONTENTS

Page

po 8 Le Fi). s.r aac iii

awe Mune ee oor 1

I.

THE INJUNCTION WAS IMPOSED AS A

REMEDY FOR DEFAMATION OF A PUBLIC

FIGURE AND NOT FOR EXTORTION, AND

THUS MUST MEET THF FIRST AMEND-

MENT’S REQUIREMENTS FOR REMEDIES

IN DEFAMATION ACTIONS. .....0..........ccceeeeeeees 2

A. The Injunction Was For Speech Protected

By The First Amendment ......................2++++ 2

1. The Injunction Was Issued For The Ex-

pression Of Opinion About A Public Fig-

ure On A Matter Of Public Concern......... 3

2. The Injunction Was Based On State-

ments That Were Not Made With Ac-

3. Cochran’s Other Descriptions Of The

Statements Do Not Make Them Unpro-

tected Under The First Amendment..... 6

B. The Injunction Was For Defamation And

False Light Invasion Of Privacy, Not For

BIND ccncvudindiscttnpenedintitametiindiintetiimnpeniees 7

C. Petitioners’ Alleged Motivations For

Speaking About A Public Figure And A

Matter Of Public Concern Do Not Affect

The First Amendment Protection For Such

TABLE OF CONTENTS -— Continued

Page

Il. THE PERMANENT INJUNCTION IS A

10

III. INJUNCTIVE RELIEF IS NOT A PERMISSI- —

BLE REMEDY IN A DEFAMATION CASE.......

A. Cochran Concedes That Prior Restraints

Have Historically Been Rejected In Defa-

we

B. Damages Are The Appropriate Remedy In

a

C. Injunctions Are Not An Appropriate Rem-

edy In Defamation Cases.................cccc0000000

IV. EVEN IF INJUNCTIONS ARE ALLOWED IN

DEFAMATION CASES, SUCH INJUNC-

TIONS MUST BE NARROWLY TAILORED;

BUT THE INJUNCTION IN THIS CASE IS

UNCONSTITUTIONALLY OVERBROAD .......

A. The Permanent Injunction Is Content-

Based Because, As Respondent Concedes,

It Bars Discussion On The “Subject” Of

Sem CUTROGR ccvsccs:viniimeiade

B. The Permanent Injunction In This Case Is

Enormously Overbroad...................csseeeeeeees

C. The Court Should Declare The Injunction

Unconstitutional, Not Rewrite It ...............

x. =) Sentosa ea

11

11

12

14

15

15

17

ili

TABLE OF AUTHORITIES

Page

CASES

Alexander v. United States, 509 U.S. 544 (1993).............. 10

American Steel Foundries v. TriCity Central Trades

ne, Be erie BI CP ccecccssccceseccececssseneccseccoossceee 13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)......... 5

Babbitt v. United Farm Workers National Union,

a saditinnesastosoonen 13, 14

Bill Johnson’s Restaurants, Inc. v. National Labor

Relations Board, 461 U.S. 731 (1983) ...............ccccceeeeees 13

Board of Airport Commissioners v. Jews for Jesus,

ee 15, 19

Bose v. Consumers Union, 466 U.S. 485 (1984).......... 2, 3,5

Carey v. Brown, 447 U.S. 455 (1980) .........cccceseesceesereeeeees 16

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

CEES Sa SE ee 16

Cochran v. NYP Holdings, Inc., 210 F.3d 1036 (9th

I a. a euationnecce 18

Cohen v. California, 403 U.S. 15 (1971)............ccccceeeerseeeeees 6

Consolidated Edison Co. v. Public Service Comm'n,

SET I eS ea 16

Couch v. San Juan Unified Sch. Dist., 33 Cal. App.

Sa sassnnsenenusons 1l

Evans v. United States, 504 U.S. 255 (1992) .................000 7

Ferlauto v. Hamsher, 74 Cal. App. 4th 1394 (1999)............ 4

Greenberg v. Burglass, 229 So.2d 83 (La.1969) .............0++ 4

Hustler Magazine v. "alwell, 485 U.S. 46 (1988) ....... 4,7,9

iv

TABLE OF AUTHORITIES - Continued

Page

James v. San Jose Mercury News, Inc., 17 Cal. App.

GI F Ce scccciisesistinst nictensinctniiliptenneaintiiinilaiiiatiiiate re 4

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957)......... 12

Kwass v. Kersey, 81 S.E.2d 237 (W.V. 1954)..........ccccceseceeees 4

Leeper v. Beltrami, 53 Cal.2d 195 (1959)...........cccceeeee 1,14

Madsen v. Women’s Health Center, Inc. 512 U.S. 753

COED <cusiecsintenensdetinisidstihdaagabans sid, aiansconiabiigdiaiiaiendiaeiaiel 10, 16, 17

Masson v. New Yorker Magazine, Inc., 501 U.S. 496

RIED <covsnscsicinsscoutienintiitinnptinncusnieisinnibantiniimmiatimnieatinaintlis 5

Middlesex County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423 (1962)........ccccsscocrcsesseseocereccssesoes 3

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)........... 3

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

COED sceosstsnciiciteidnithionenieiantsontbisiabecnitiiaielidinaiieinhee canines 9

National Organization for Women, Inc. v. Scheidler,

a EF, BE Ce ccerscnseesctibtclidensritiliinataaninshs shcnadbbadbencdiasda 8

Near v. Minnesota, 283 U.S. 697 (1931)................. 11, 12, 20

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

CBD <ccersicstnictansecsssiesitnsissteetictsendatliahiiaibiealiaieaaiaa secant 7

New York Times Co. v. United States, 403 U.S. 713

CRIED arerccinrsitnninnticentisveicsdtiabiaidabebiniiiendipeias ii dett taeda. 14

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

GD CR ID ecccccocscsnvcntevincntectiiicbininiinteitiaiinniinaniiaaiuiediaian passim

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)......... 12

Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1998)........... 4

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376 (1973)................:ccceeeee 12

v

TABLE OF AUTHORITIES — Continued

Page

Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972)....... 16

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).............ecc0 8

Savage v. Pacific Gas & Elect. Co., 21 Cal. App. 4th

GOS CRIED ccccicicinicinnitiniiniviesnnciipinisiitiiinnssnetitnitiidubiilanhininteten 4

Time, Inc. v. Hill, 385 U.S. 374 (1967) ..........ccecceeeeeeseeeeees 11

Times Film Corp. v. City of Chicago, 365 U.S. 43

CRIED. cisnsinhaes.. sesncsnitiedsibtibeiisiciatliniteteahahindassadiidiatiadudamiiiiteliater 12

United States v. Grace, 461 U.S. 171 (1983)................000 17

United States v. Jackson, 180 F.3d 55 (2d Cir. 1999)......... 8

United States v. Sasso, 215 F.3d 283 (2d Cir. 2000) ......... 14

United States v. Strum, 870 F.2d 769 (1st Cir. 1989)......... 7

United Transp. Union v. State Bar of Mich., 401

SFE. BOB CG Oe cicvccs ccccscendsisitdninnascanabiabamdbibisstinnasiaans 19

Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978)..............++ 4

CONSTITUTIONAL PROVISION

ee. Ce, ME F cs ccunssendntbieioistcindiitineiaitiaaal passim

STATUTES

California Penal Code § 518...............ccccccccoscceccescscccccccccceees 7

Racketeer Influenced and Corrupt Organizations

Patt, Wh CARAS. F TE, OE GD scccestccescneieitntitiiaduntantanbiiaibaiin 14

vi

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

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 (2001) ..............csccsssceesseeeees 19

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

PUD TD scsevnssithasicupsapiienupiscabiniaaietndidimsimianibaiet tdi eda 19

1

INTRODUCTION

Believing he was treated badly by prominent attorney

Johnnie L. Cochran, Jr. and the legal system, Ulysses Tory

exercised his First Amendment right to express his opin-

ion in a public forum by carrying signs on a public side-

walk. Although expressing opinions about a national

public figure and a matter of public concern is clearly

protected by the First Amendment, the trial court issued

an injunction which prevents Tory and Ruth Craft, who

was not_even a party to the lawsuit, from saying anything

ever again about Cochran or his law firm in any public

forum. This injunction is a prior restraint, which violates

the First Amendment.

In an effort to avoid centuries of precedents holding

that injunctions are not permissible in defamation cases

and that any restriction on speech must be narrowly

tailored, Cochran attempts to recharacterize this case as

being about extortion and not defamation. In fact, Coch-

ran’s brief really makes just one argument: Tory was

engaged in extortion unprotected by the First Amendment.

Cochran’s claim of extortion is simply unsupported by

the record. First, Cochran’s suit was for defamation (libel,

libel per se, slander and slander per se) and false light

invasion of privacy. Cochran did not bring a civil cause of

action for extortion; nor did he sue for harassment, intru-

sion, or any of the other claims he presents in his brief.

Although in California, it is possible to sue for civil extor-

tion and recover money damages, see, e.g., Leeper v.

Beltrami, 53 Cal.2d 195, 203 (1959), Cochran presented no

such claim in his complaint or at the trial court. Nor did

Cochran ever file a complaint with the police alleging that

Tory was engaged in extortion or even disturbing the

peace, though Cochran certainly knows how to do this and

the police surely would take seriously a complaint from

Johnnie Cochran. 2

2

Second, contrary to the assertion in Cochran’s brief,

the trial court never found that Tory was engaged in

extortion; indeed, the trial judge’s opinion never mentions

that word or anything like it. This is not surprising be-

cause nowhere at trial did Cochran claim that Tory was

engaged in the crime of extortion. The trial judge’s injunc-

tion was based on the erroneous conclusion that there was

libel, slander, and false light invasion of privacy, the only

claims Cochran raised before the trial court.

Third, the California Court of Appeal decision does not

mention extortion. The Court of Appeal upheld the injunc-

tion as an appropriate remedy for defamation by errone-

ously concluding that permanent injunctions are not prior

restraints and that permanent injunctions need not be

narrowly tailored.

Thus, this case is not about, and never has been

abeut, extortion. Rather, this case concerns whether

injunctions are a permissible remedy in public figure

defamation cases and, if so, whether they must be nar-

rowly tailored. On this issue, Petitioners Tory and Craft

maintain that the injunction issued by the California

Superior Court, as a remedy in a defamation action,

clearly violates the First Amendment.

I. THE INJUNCTION WAS IMPOSED AS A REM-

EDY FOR DEFAMATION OF A PUBLIC FIG-

URE AND NOT FOR EXTORTION, AND THUS

MUST MEET THE FIRST AMENDMENT’S RE-

QUIREMENTS FOR REMEDIES IN DEFAMA-

TION ACTIONS.

A. The Injunction Was For Speech Protected

By The First Amendment.

Cochran insists that this Court must accept the

factual findings of the trial court and the Court of Appeal.

But in Bose v. Consumers Unio, 466 U.S. 485, 504, 506

3

n.25 (1984), this Court stressed that in a defamation

action “[w]e must ‘make an independent examination of

the whole record,’ so as to assure ourselves that the

judgment does not constitute a forbidden intrusion on the

field of free expression[.]” Jd. at 508. Consistent with this

fundamental precept, the Court held that “[t]he require-

ment of independent appellate review reiterated in New

York Times Co. v. Sullivan, is a rule of federal constitu-

tional law.... It reflects a deeply held conviction that

judges — and particularly Members of this Court — must

exercise such review in order to preserve the precious

liberties established and ordained by the Constitution.” Jd.

at 510-11.

1. The Injunction Was Issued For The Ex-

pression Of Opinion About A Public

Figure On A Matter Of Public Concern.

Cochran concedes, as he must, his status as a public

figure. Respondent’s Brief on the Merits (hereafter “RBM”)

at 46. Nor does he dispute that the statements were about

the court system and the performance of an attorney and

that there is an “extremely important” public interest in

the conduct of lawyers. Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S. 423, 434 (1982).

Crucially, Cochran concedes that the placards carried

by “Tory and his recruits did not contain factual informa-

tion,” but instead “contained distasteful and inflammatory

slogans.” (RBM at 17; emphasis added). This, in itself,

demonstrates the error of the lower courts. This Court

repeatedly has held that statements which cannot rea-

sonably be interpreted as asserting actual, verifiable facts

about an individual are constitutionally protected opinion,

especially in the context of speech concerning public

figures and matters of public concern. See Milkovich uv.

4

Lorain Journal Co., 497 U.S. 1, 17-21 (1990); Hustler

Magazine v. Falwell, 485 U.S. 46, 50 (1988).

All of the purported statements at issue are constitu-

tionally protected opinion or hyperbole. For example, one

of the placards on which the injunction is based innocently

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

Constitution guarantees ME?” (Joint Appendix (“JA”) 54.)

Even taken at their worst, none of the purported state-

ments convey verifiable assertions of fact. For instance,

the alleged remarks that Cochran is unethical, has con-

flicts of interest or is a bad lawyer are matters of opinion.’

An assertion that Cochran is a “crook, a liar and a thief”

is not actionable because it does not convey information

that can be proven true or false, as many courts have

similarly held. (JA 53-54.)

* See, e.g., Partington v. Bugliosi, 56 F.3d 1147, 1157-58 (9th Cir.

1995) (evaluations of a lawyer’s performance are “inherently subjective”

and not actionable); James v. San Jose Mercury News, Inc., 17 Cal. App.

4th 1, 7-15 (Cal.Ct.App. 1993) (calling public defender an “unethical”

lawyer who used “sleazy tactics” and went to “extreme lengths” to

illegally obtain evidence from an alleged molestation victim's school was

not actionable); Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1401-1406

(Cal.Ct.App. 1999) (description of an attorney as a “loser wannabe

lawyer,” a “creepazoid attorney,” and a “Kmart Johnnie Cochran” who

files “frivolous” lawsuits and motions is not actionable); Savage uv.

Pacific Gas & Elect. Co., 21 Cal. App. 4th 434, 444-45 (Cal.Ct.App.

1993) (accusing another of having a “conflict of interest” is not action-

able)

* See, e.g., Willing v. Mazzocone, 393 A.2d 1155, 1156-58 (Pa. 1978)

(striking down injunction on attorneys’ former client who falsely

accused attorneys of stealing her money); Greenberg v. Burglass, 229

So.2d 83, 84-87 (La. 1969) (lawyer who prevailed in a defamation suit

after being labeled a “crook” was not entitled to a permanent injunc-

tion); Kwass v. Kersey, 81 S.E.2d 237, 242-47 (W.V. 1954) (rejecting an

injunction prohibiting the defendant, who claimed to be a former client

of plaintiff, as well as defendant's “agents, servants, employees and

representatives,” from “making public or circulating any libelous or

slanderous statements of any kind . . . concerning the plaintiff”).

5

2. The Injunction Was Based On State-

ments That Were Not Made With Actual

Malice.

As an admitted public figure, Cochran must prove,

with clear and convincing evidence, that the allegedly

defamatory statements — which gave rise to the injunction

— were published with actual malice, meaning “with

‘knowledge that [they were] false or with reckless disre-

gard of whether [they were] false or not.’” Masson v. New

Yorker Magazine, 501 U.S. 496, 510 (1991) (citations

omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255-57 (1986). The actual malice standard focuses solely

on the defendant’s subjective state of mind “at the time of

publication.” Bose, 466 U.S. at 512. This Court “must

independently decide whether the evidence in the record is

sufficient to cross the constitutional threshold that bars

the entry of any judgment that is not supported by clear

and convincing proof of ‘actual malice.’” Bose, 466 U.S. at

511.

Contrary to the conclusions of tine trial court and the

Court of Appeal, the evidence is not clear and convincing

that the alleged statements in this case — even if they

could be considered verifiable facts, rather than mere

opinions or hyperbole — were published with knowledge of

falsity or with reckless disregard for their truth or falsity.

First, Tory testified that he subjectively believed that

Cochran mishandled Tory’s original, underlying civil rights

case.’ Second, the evidence is not clear and convincing that

Petitioners knew their demands for a refund from Cochran

were based on false premises, or that they acted recklessly

in demanding a refund from Cochran, even though the

* Reporter’s Transcript of the trial proceedings in the Los Angeles

County Superior Court (“RT”) 174:9-17; 180:16-27; 215:16-19; 274:1-18.

6

money that they paid went to attorney Ear] Evans, rather

than to Cochran. To the contrary, a great deal of evidence

indicates that Petitioners did not act with actual malice in

demanding a refund from Cochran because they rationally,

even if incorrectly, believed that Evans and Cochran

worked as partners or agents of one another, that money

paid to Evans flowed to Cochran, and that Cochran prom-

ised to refund them money.*

3. Cochran’s Other Descriptions Of The

Statements Do Not Make Them Unpro-

tected Under The First Amendment.

Cochran colloquially labels some of Tory’s purported

statements “obscene” (RBM 18, 29), but they cannot be

considered obscene as the Court has defined that term in

the First Amendment context. See, e.g., Cohen v. Califor-

nia, 403 U.S. 15, 20 (1971) (jacket bearing a profanity is

not an “obscene expression” because “such expression

must be, in some significant way, erotic”). Cochran also

* Evans admitted that he worked in the same office as Cochran,

and that he used Cochran’s stationery in corresponding with Petition-

ers. (RT 63:4-6, 78:12-28.) Cochran testified at trial- that Evans had

“been with the law firm a number of years,” and it was clear that Evans

frequently did work for Cochran and even made court appearances in

Cochran’s stead. (RT 74:14-16, 78:12-25.) When Tory first approached

Cochran for representation in 1983, Evans did the “intake” for Cochran

and Evans counter-signed the retainer agreement on Cochran’s behalf.

(RT 64:8-10, 79:4-28, 117:17-118:8.) Tory testified that, from that point

forward, he believed Cochran’s whole firm was handling his matters,

and that his later checks to Evans were to Cochran’s law firm. (RT

168:4-18, 188:27-189:7.) Tory also testified that Cochran promised to

recompense Tory for checks that Petitioners wrote to Evans, and that

Tory’s later picketing was, in part, an effort to get Cochran to acknowl-

edge this promise. (RT 176:21-178:22, 216:6-12, 222:2-16.) Craft also

testified that she heard Cochran make such a promise, and that she,

too, believed Evans was part of Cochran’s law firm. (RT 253:17-19,

262:14-263:2.)

— _——-

7

calls Tory’s purported statements “harassing,” “bizarre,”

“derogatory.” and “distracting” (RBM 6, 18, 38), but this

Court has made clear that “vehement, caustic, and some-

times unpleasantly sharp attacks,” about public figures

are constitutionally protected. Hustler Magazine v. Fal-

well, 485 U.S. 46, 51 (1988) (quoting New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964)).

B. The Injunction Was For Defamation And

False Light Invasion Of Privacy, Not For

Extortion.

The trial court based its permanent injunction on

findings (albeit incorrect ones) of defamation and false

light invasion of privacy. (JA 33-50.) Contrary to Cochran’s

repeated assertions (e.g., RBM 8, 33, 35), neither the trial

court nor the Court of Appeal “established,” “found” or

“recognized” that Tory or Craft committed extortion. In

fact, the words “extort” and “extortion” do not appear in

the trial court’s Statement of Decision or Permanent

Injunction; nor do they appear in the Court of Appeal’s

opinion. (JA 33-61.)

Moreover, even if Cochran had properly raised an

extortion claim and the trial court had found that Tory and

Craft had committed extortion, such a finding could not

stand. Under California law, “extortion” is “the obtaining

of property from another, wi‘h his consent . . . induced by a

wrongful use of force or fear, or under color of official

right.” Cal. Pen. C. § 518. Extortion is only committed

where the perpetrator does not have a legitimate claim to

the requested property, and knows that he or she is not

entitled to such property. See Evans v. United States, 504

U.S. 255, 277 (1992) (Kennedy, J., concurring) (“modern

jurisprudence” requires mens rea for extortion); see also

United States v. Strum, 870 F.2d 769, 774 (1st Cir. 1989)

(“the term ‘wrongful’ requires the government to prove, in

8

cases involving extortion based on economic fear, that the

defendant knew that he was not legally entitled to the

property that he received”). As they testified at trial, Tory

and Craft believe that they have a legitimate right to be

reimbursed by Cochran. (RT 176:21-178:22, 216:6-12,

222:2-16, 253:17-19, 262:14-263:2.)

C. Petitioners’ Alleged Motivations For Speak-

ing About A Public Figure And A Matter Of

Public Concern Do Not Affect The First

Amendment Protection For Such Speech.

Speech that has properly been ruled extortionate is

not protected by the First Amendment. R.A.V. v. City of St.

Paul, 505 U.S. 377, 420 (1992) (Stevens, J., concurring).

But not all speech that is designed to pressure the listener

or change the listener’s conduct to benefit the speaker is

unprotected extortionate speech. National Organization

for Women, Inc. v. Scheidler, 510 U.S. 249, 264 (Souter, J.,

concurring) (1994) (“Conduct alleged to ... [be] extortion

... May turn out to be fully protected First Amendment

activity”); see also United States v. Jackson, 180 F.3d 55,

67 (2d Cir. 1999) (“plainly not all threats to engage in

speech that will have the effect of damaging another

person’s reputation, even if a forbearance from speaking is

conditioned on the payment of money, are wrongful”).

This Court’s decision in Organization for a Better

Austin v. Keefe, 402 U.S. 415 (1971), is illustrative. In

Keefe, a trial court enjoined the future speech of the

petitioners, an organization of residents that had been

distributing leaflets critical of the respondent in response

to the respondent’s refusal to sign an agreement not to

solicit property in the organization’s neighborhood. Id. at

415-17. The appellate court affirmed the injunction on the

ground that the petitioners’ leafleting activities were

“coercive and intimidating,” invasive of respondent’s

tte — ~ ee ~—.-

9

privacy and therefore “not entitled to First Amendment

protection.” Jd. at 418. This Court reversed, explaining

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. Petitioners

plainly intended to influence respondent’s conduct by their

activities; this is not fundamentally different from the

function of a newspaper.” Id. at 419 (citations omitted).

The Court went on to state, in words that are exactly on

point for this case, that “[no] prior decisions support the

claim that the interest of an individual in being free from

public criticism of his business practices in pamphlets or

leaflets warrants use of the injunctive power of a court.”

Id.

Similarly, in NAACP v. Claiborne Hardware Co., 458

U.S. 886 (1982), this Court was clear that speech seeking

to pressure economic behavior is protected by the First

Amendment. Claiborne Hardware involved an injunction

designed to end an economic boycott, where “Petitioners

admittedly sought to persuade others to join the boycott

through social pressure and the ‘threat’ of social ostra-

cism.” Id. at 909-10. This Court invalidated the injunction,

ruling that “speech does not lose its protected character

. .. Simply because it may embarrass others or coerce them

into action;” indeed “‘offensive’ and ‘coercive’ speech” is

“protected by the First Amendment.” Jd. at 910-11.

Even if Petitioners’ motives in criticizing the profes-

sionalism and ethics of a prominent public figure such as

Cochran could be considered offensive, coercive or other-

wise questionable, Petitioners’ criticisms are still entitled

to constitutional protection. See Hustler Magazine, 485

U.S. at 53 (“in the world of debate about public affairs,

many things done with motives that are less than admira-

ble are protected by the First Amendment”).

10

II. THE PERMANENT INJUNCTION IS A PRIOR

RESTRAINT.

Cochran concedes that there is a “heavy presumption”

against the “constitutional validity” of a prior restraint.

(RBM 20-21). Nevertheless, Cochran contends that the

injunction in this case is not a prior restraint. (RBM 20-

31.)

Cochran confuses two questions: whether Tory’s past

speech is protected and whether the restriction of future

speech is a prior restraint. Even if Tory’s past speech was

not protected, the injunction is still a prior restraint

because it restricts future speech and because it requires

judicial approval before any future speech occurs. (JA 33-

34.)

Cochran contends that the injunction is merely a

“subsequent punishment” for Tory’s past speech and thus

not a prior restraint. (RBM 28-29.) But this assertion is

undermined by this Court’s unequivocal statement in

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

“permanent injunctions ... that actually forbid speech

activities are classic examples of prior restraints” because

they impose a “true restraint on future speech.”

It is telling that Cochran cites no authority for the

proposition that a permanent injunction on speech is a

“subsequent punishment,” save the Court of Appeal’s

opinion being challenged in this case. (RBM 29 (citing JA

56).) It is not surprising that Cochran could find no au-

thority to support his position because, as Justice Scalia

observed, “I know of no authority for the proposition that

restriction of speech, rather than fines or imprisonment

should be the sanction for misconduct.” Madsen v. Women’s

Health Center, Inc., 512 U.S. 753, 794 n.1 (1994) (Scalia, J.,

concurring in judgment in part and dissenting in part).

11

Ill. INJUNCTIVE Kk “LIEF IS NOT A PERMISSIBLE

REMEDYINAi ¥AMATION CASE.

Cochran sued Tory for defamation (libel, libel per se,

slander and slander per se) and false light invasion of

privacy based on the same set of alleged facts. (JA 7, 13-

17.) A false light invasion of privacy claim based on the

same facts as a defamation claim must meet the same

constitutional standards as the defamation claim. Time,

Inc. v. Hill, 385 U.S. 374, 388 (1967). In California,

“[w]hen claims for [false light invasion of privacy] ... are

based on the same factual allegations as those of a simul-

taneous libel claim, they are superfluous and must be

dismissed.” Couch v. San Juan Unified Sch. Dist., 33 Cal.

App. 4th 1491, 1504 (1995). Contrary to Cochran’s re-

peated suggestions and implications (e.g., RBM 8, 35), he

made no other type of privacy claim, nor did he make any

claim for harassment or extortion. Thus, despite Cochran’s

many attempts to recast the nature of this dispute, it is,

fundamentally, a defamation case.

A. Cochran Concedes That Prior Restraints

Have Historically Been Rejected In Defa-

mation Cases.

Cochran concedes that “in the eighteenth, nineteenth

and early twentieth centuries, the ‘traditional rule . . . that

equity has no jurisdiction to enjoin a libel’ was often

applied[.)” (RBM 35.) Notwithstanding this concession,

Cochran reads Near v. Minnesota, 283 U.S. 697 (1931),

and Keefe to permit injunctions to “redress individual or

private wrongs.” (RBM 25). Near and Keefe cannot be read

as narrowly as Cochran contends. Near emphatically

rejected the notion that injunctive relief is ever a permis-

sible remedy in defamation cases, calling it the “essence of

censorship,” even though the injunction in that case

followed a finding of defamation and involved false and

12

anti-Semitic epithets — speech of minimal, if any, public

value. Near, 283 U.S. at 704-06, 713-18.

Even if Near and Keefe could be read as narrowly as

Cochran suggests, the speech in this case is not merely a

matter of private concern, but instead addresses matters

of public concern: the professional conduct of Cochran, a

prominent attorney and admitted public figure, and

Petitioners’ experiences in the legal system. (See Peti-

tioner’s Brief on the Merits (hereafter “PBM7”) at 11-13.)

Cochran does not — because he cannot — dispute that

this Court has never upheld an injunction in a defamation

case. Instead, Cochran cites cases that did not involve

defamation. (RBM 21-23, 27-28, 30-34). Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 55 (1973), Kingsley Books,

Inc. v. Brown, 354 U.S. 436, 445 (1957), and Times Film

Corp. v. City of Chicago, 365 U.S. 43, 49 (1961), all in-

volved narrow injunctions of material that courts had

previously adjudged obscene. See Near, 283 U.S. at 716

(prior restraints are allowed only in “exceptional cases,”

such as enjoining obscenity.)

This case is also very different from Pittsburgh Press

Co. v. Pittsburgh Comm’n on Human Relations, 413 US.

376, 391 (1973), which involved a “narrowly drawn” rule

prohibiting advertising of illegal activity, not a court

injunction of speech. Again, in Pittsburgh Press the Court

distinguished and “reaffirm[ed] unequivocally” Near’s rule,

which does not allow injunctions on the “free expression of

views . .. however controversial.” Jd.

B. Damages Are The Appropriate Remedy In

Defamation Cases.

Cochran makes no effort to address the ample author-

ity presented by Petitioners holding that damages are a

sufficient remedy for plaintiffs in defamation cases. (See

PBM 23-26.) Cochran also does not contend that damages

13

would have been an inadequate remedy in this case.’

Instead, Cochran again turns to inapposite authority to

suggest that his remedy is “not limited to damages.” (RBM

34-37.)

Cochran’s reference to injunctions in privacy cases is

misplaced because neither decision cited by Cochran

involved an injunction based on false light invasion of

privacy, which is the only type of privacy claim at issue in

this case. (RBM 35) Even if Cochran had advanced some

other brand of privacy claim — which he clearly did not —

the instant injunction still could not stand. See Keefe, 402

U.S. at 419-20 (injunction to prevent the peaceful distribu-

tion of literature critical of an individual’s business prac-

tices was unconstitutional even though the conduct was

alleged to be an “invasion of privacy”).

Cochran’s reliance on labor picketing cases is equally

misplaced because the labor context has consistently been

treated distinctly by this Court. (RBM 35-36.) In American

Steel Foundries v. TriCity Central Trades Council, 257 U.S.

184, 205-06 (1921) — a case that pre-dates Near — this

Court recognized the particular problems attendant to

“strikers and sympathizers engaged in the economic

struggle,” especially where “one or more assaults or

disturbances ensued” creating an “intimidating” atmos-

phere. Id. at 205. Cochran also cites to Bill Johnson’s

Restaurants, Inc. v. National Labor Relations Board, 461

U.S. 731 (1983), but in that case the trial court “declined

to enjoin the distribution” of the allegedly libelous leaflets.

Id. at 734. The final labor case cited by Cochran, Babbitt v.

United Farm Workers National Union, 442 U.S. 289, 309

* Cochran waived his right to seek damages, and he conceded that

he did not actually suffer any damages. (JA 37-38; RT 55:20-28;

Reporter’s Transcript of trial court proceedings on April 24, 2002, at

2:7-10.)

id

n.16 (1979), addressed the special nature of direct appeals

by labor to consumers, but it did not explicitly permit

injunctions even in that context. Moreover, this Court

specifically acknowledged that such a circumstance is

distinct from defamation claims. Jd.

_ Finally, without the benefit of any authority, Cochran

wrongly contends that his remedy is not limited to dam-

ages because he is entitled to an injunction because of the

purported “ongoing extortion attempts recognized by the

trial court.” (RBM 35.)° As discussed above, this case is not

about extortion, and the trial court never recognized any

attempted or consummated extortion. (JA 33-50.) More-

over, crimes, such as extortion, cannot be enjoined. See

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

713, 744 (1971) (Marshall, J., concurring) (“it is a tradi-

tional axiom that equity will not enjoin the commission of

a crime”). Instead, perpetrators of extortion may be crimi-

nally prosecuted. In California, it is possible to sue for civil

extortion and recover money damages, see, e.g., Leeper v.

Beltrami, 53 Cal.2d 195, 203 (1959), but Cochran never

brought such a claim.

C. Injunctions Are Not An Appropriate Rem-

edy In Defamation Cases.

In their Brief on the Merits, Petitioners explain why an

injunction in a defamation case can never be crafted in a

fashion consistent with the First Amendment: any effective

* The one case cited by Cochran to support his position, United

States v. Sasso, 215 F.3d 283 (2d Cir. 2000), did not approve an injunc-

tion to prevent extortion. (RBM 35.) Rather, the court only noted in

passing that the government had commenced a civil action under the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961

et seg., and had included in one paragraph a request to enjoin an

allegedly corrupt labor union’s and “organized crime’s extortion of

construction businesses.” Jd. at 285.

15

injunction will be overbroad and any limited injunction will

be ineffective. (PBM 26-29.) Put another way, any injunction

in a defamation case will always be either under-inclusive or

over-inclusive, and it will never be narrowly tailored, as the

law requires. Cochran defends the scope of the injunction by

championing its clarity. (RBM 38.) Petitioners agree that the

injunction is painfully clear — it clearly prevents, as Cochran

puts it, “all discussion about Cochran” in any public forum.

(RBM 37.) Petitioners do not object to the injunction on

clarity or vagueness grounds, but instead challenge its

unconstitutional overbreadth. The regulation in Board of

Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569

(1987), which prohibited all “First Amendment activities” at

airports in Los Angeles, was also clear; but, as this Court

held, it was unconstitutionally overbroad. Id. at 574-75.

Clarity is no defense to unconstitutional overbreadth.

IV. EVEN IF INJUNCTIONS ARE ALLOWED IN

DEFAMATION CASES, SUCH INJUNCTIONS

MUST BE NARROWLY TAILORED; BUT THE

INJUNCTION IN THIS CASE IS UNCONSTI-

TUTIONALLY OVERBROAD.

A. The Permanent Injunction Is Content-Based

Because, As Respondent Concedes, It Bars

Discussion On The “Subject” Of Johnnie

Cochran.

Cochran argues that the injunction is content-neutral

because it “does not distinguish between ‘zvod’ and ‘bad’

expression about Cochran; any public communication on

the subject of Cochran is prohibited.” (RBM 9 (emphasis

added); see also RBM 42 (“Petitioners are as much in

violation of the Injunction if they publicly praise Cochran as

if they publicly criticize him”).) He is mistaken because the

“First Amendment’s hostility to content-based regulation

extends not only to restrictions on particular viewpoints,

16

but also to prohibition of public discussion of an entire

topic.” Consolidated Edison Co. v. Public Service Comm’n,

447 U.S. 530, 537 (1980). See also Police Dep’t of Chicago v.

Mosley, 408 U.S. 92, 95 (1972) (“above all else, the First

Amendment means that government has no power to

restrict expression because of its message, its ideas, its

subject matter, or its content”) (emphasis added).

This Court disapproved an argument, nearly identical

to Cochran’s, in Carey v. Brown, 447 U.S. 455 (1980).

Carey involved an ordinance which prohibited picketing in

residential neighborhoods, except for labor protests related

to a place of employment. This Court invalidated the law,

explaining that “it is the content of the speech that deter-

mines whether it is within or without the statute’s blunt

prohibition,” and it is “of course, no answer to assert that

the ... statute does not discriminate on the basis of the

speaker’s viewpoint, but only on the basis of the subject

matter of his message.” Jd. at 462 & n.6.

Cochran relies on several inapposite decisions that did

not involve restrictions on speech based on viewpoint or

subject matter. (RBM 39-43.) In Madsen v. Women’s Health

Center, 512 U.S. at 763, for example, this Court upheld an

injunction establishing a buffer zone around abortion

clinics, concluding that such an injunction applied regard-

less of viewpoint or subject matter, even if it had a dispro-

portionate impact on individuals, anti-abortion protestors,

expressing a particular viewpoint. Here, unlike in Madsen,

no one disputes that the purpose of the injunction is to

stymie discussion on a particular subject matter. Therefore

if the injunction is to be permitted at all, it “must be

couched in the narrowest terms that will accomplish the

pinpointed objective permitted by constitutional mandate

and the essential needs of public order.” Carroll v. Presi-

dent and Comm'rs of Princess Anne, 393 U.S. 175, 183

(1968).

17

B. The Permanent Injunction In This Case Is

Enormously Overbroad.

Even if the Court determines thet the injunction is

content-neutral, it still must “burden no more speech than

necessary to serve a significant government interest.”

Madsen, 512 U.S. at 765.

The injunction is tremendously overbroad. Even

Cochran describes the injunction as a “wholesale proscrip-

tion of speech about a specific person in the public forum.”

(RBM 48.) The injunction is “wholesale,” as Cochran puts

it, because it prohibits all forms of protected speech about

Cochran and his law firm, including opinions, true state-

ments of fact and praising speech. It applies to “any”

“utterance” — from organized picketing to a whisper in the

park — in “any public forum”. (JA 34). The injunction

applies to all of Tory’s “agents” including Craft, who was

never given an opportunity to defend herself at trial. Even

this brief violates the terms of the injunction because it is

written by Torys agents and will be communicated in

public forums.

Cochran’s only defense to the staggering scope of the

injunction is that it applies only in public forums. (RBM

45.) This is really no limitation at all. Public forums — such

as the public areas around Cochran’s office and the Los

Angeles Superior Court, which are specifically mentioned

in the injunction (JA 34) — “occup[y] a special position in

terms of First Amendment protection.” United States v.

Grace, 461 U.S. 171, 180 (1983).

Cochran does not advance any countervailing gov-

ernment interest that is “compelling” — or even “signifi-

cant” — enough to warrant overlooking the dramatic

breadth of the injunction. Cochran invokes his business

and privacy interests (RBM 43-44), but this Court has

acknowledged that, even where a plaintiff asserts that

speech has invaded his privacy and damaged his business,

18

there is no authority supporting injunctive relief. Keefe,

402 U.S. at 419 (rejecting an injunction on speech based on

a claimed “invasion of privacy”). Moreover, Cochran and

the trial court ucknowledged that Cochran was not actu-

ally damaged at all. (RT 55:20-28; JA 37-38.)

Cochran also argues that the injunction helps protect

the integrity of the legal profession. (RBM 44.) There is,

however, a higher interest in allowing criticism of the legal

profession, and its most prominent members, in order to

expose flaws in the system and deficient practitioners. See

Cochran v. NYP Holdings, Inc., 210 F.3d 1036, 1038 (9th

Cir. 2000) (holding that an article that was highly critical

of Johnnie Cochran and his handling of the famous O.J.

Simpson case was protected opinion).

Finally, Cochran contends that there is an overriding

interest in preventing crime. (RBM 44). But there was no

crime committed in this case. Tory was never arrested or

charged with any crime. Cochran acknowledged as much

at trial when he testified: “Jf you had broken the law, Mr.

Tory, 'm sure you would have been arrested.” (RT 61:22-23

(emphasis added).)

C. The Court Should Declare The Injunction

Unconstitutional, Not Rewrite It.

Cochran asserts that the “only” effective remedy in

this case is to proscribe “all discussion about Cochran by

Petitioners in the public forum.” (RBM 37 (emphasis in

original).) Nevertheless, Cochran asks this Court, as an

alternative, “to modify the order as necessary,” but he does

not articulate how the order could or should be modified.

The Court should not entertain Cochran’s suggestion.

First, as discussed above, the injunction is predicated

on speech that is —- and should have been deemed — consti-

tutionally protected. Tory never should have been held

19

liable for defamation or false light invasion of privacy for

expressing opinions about a public figure in a public

forum, and Craft — who was never a defendant — should

not have been named in the injunction. -

Second, injunctions are not permissible as remedies in

defamation actions. Centuries of precedent, dating back to

English law before the existence of the United States,

establish that equitable relief is not available in defama-

tion 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).

Third, modifying the injunction would be an extraor-

dinary measure never before undertaken by this Court.

Cochran cites no authority, because there is none, where

this Court ever upheld an injunction of speech by rewrit-

ing it. See, e.g., United Transp. Union v. State Bar of

Mich., 401 U.S. 576, 581 (1971) (striking down an injunc-

tion because “upon its face it abridges rights guaranteed

by the Constitution.”)

Finally, rewriting the injunction is inappropriate

because no limitation could satisfy First Amendment

standards. In Board of Airport Comm’rs, 482 U.S. at 575-

76, this Court declined to narrow an overbroad reguletion

prohibiting “all First Amendment activities,” because ever.

a modified version of such a rule would violate the First

Amendment. The same is true here. As Petitioners have

explained, there is not a way to craft an injunction in

defamation cases that would meet First Amendment

scrutiny.

20

CONCLUSION

Never in American history has this Court upheld a

permanent injunction as a remedy in a defamation action.

Upholding the injunction in this case would dramatically

change the law and open the door to broad injunctions of

speech as a routine matter in defamation cases across the

country. This Court should follow its unbroken line of

authority since Near v. Minnesota and overturn the

injunction which prevents Tory and Craft from ever saying

anything about Cochran or his law firm in any public

forum.

Respectfully submitted,

ERWIN CHEMERINSKY Gary L. BOSTWICK

Counsel of Record JEAN-PAUL JASSY

DUKE UNIVERSITY LAW SCHOOL SHEPPARD, MULLIN, RICHTER

Science Drive and & HAMPTON LLP

Towerview Road 1901 Avenue of the Stars,

Durham, North Carolina 27708 Suite 1600

(919) 613-7173 Los Angeles, California 90067

(310) 228-3700

Counsel for Petitioners Ulysses Tory and Ruth Craft