Wednesday, September 29, 2004
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U.S. High Court Agrees to Review Ruling That Bars Ex-Client From Picketing Johnnie Cochran
From Staff and Wire Service Reports
The U.S. Supreme Court agreed yesterday to decide whether an injunction that bars a disgruntled ex-client from picketing Johnnie L. Cochran or from talking about the famed attorney in any public forum violates the First Amendment.
“This is an unconstitutional prior restraint on speech,” Erwin Chemerinsky, a professor at Duke Law School who is representing Tory, said. “If someone defamed you, you can award damages but you can’t stop speech.”
This district’s Court of Appeal rejected the argument last year in an unpublished opinion by Justice Miriam Vogel for Div. One. Vogel said Cochran had established that Ulysses Tory had no purpose in continuing to complain about the attorney other than to persist in making false allegations of wrongdoing.
Cochran represented Tory over 20 years ago in a personal injury action against the City of Los Angeles after a shootout with police. Tory, however, had a dispute with the attorney, writing him in 1985 to complain that Cochran was conspiring with the city “to cover up criminal and immoral activities to private citizens for political gains.”
Tory said he would “settle” his conspiracy claims against Cochran and “refrain from any public discussions of conspiracy or scandal” if Cochran quickly paid him $10 million “or very close to it.”
Cochran’s motion to withdraw from Tory’s case was granted soon after. But 10 years later, with Cochran’s fame having soared as a result of the O.J. Simpson case, Tory again wrote to Cochran demanding payment, according to evidence presented at the trial of the latest case.
Cochran did not respond to Tory’s demands until after Tory and others began picketing outside the attorney’s office and outside courthouses where he appeared. Among the messages on their placards: “Johnnie is a crook, a liar and a Thief. Can a lawyer go to HEAVEN?”; “Unless You have O.J.’s Millions—You’ll be Screwed if You USE J.L. Cochran, Esq.,”; and “DON’T LAUGH, COCHRAN SCREWED YOU GUYS TOO!”
Evidence later showed that Tory recruited the other picketers, drove them to the demonstrations, and bought them all lunch, and that Tory again wrote to Cochran, demanding money, while the picketing continued.
Cochran filed suit four years ago and obtained a preliminary injunction. The suit went to trial in March 2002 before Los Angeles Superior Court Judge Ronald Sohigian, who enjoined Tory and all persons acting in concert with him from, among other things, coming within 300 yards of Cochran or his office, from picketing Cochran or his firm, or from “orally uttering statements” about Cochran in any public forum.
Vogel, writing for the Court of Appeal, rejected the claim that the injunction was an unconstitutional prior restraint.
The rule that prior restraints on speech are presumptively unconstitutional applies to disputes over matters of public concern, not to purely private disputes, Vogel said. Nor does the rationale for barring prior restraints apply where, as in Tory’s case, there has been a full trial on the merits and finding that the defendant committed “pervasive” libel and slander, the justice said.
The injunction is not overbroad, the justice went on to say. She pointed out in a footnote that Tory told Sohigian that he would continue making the same statements about Cochran if he were not restrained.
Nor was Tory merely engaging in “rhetorical hyperbole” and expressing protected opinions, Vogel said. The statements on the placards, she wrote, “accuse Cochran of theft and of accepting money as a bribe to abandon Tory’s case against the City and the County and, as such, constitute libel within the meaning of Civil Code section 45—because a false statement reasonably calculated to induce the reader to understand that a person is guilty of a crime or is dishonest in his profession is sufficient to establish libel.”
Cochran’s attorney, Jonathan B. Cole of the Sherman Oaks firm of Nemecek & Cole, was said to be in trial and unavailable for comment.
Copyright 2004, Metropolitan News Company