# Reply Brief — Tory v. Cochran

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0755%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 734

## Text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0755%3A08. Public record. Not legal advice.