Tory v. Cochran:

The Supreme Court has just agreed to hear a First Amendment case involving injunctions against speech. Ulysses Tory, one of Johnnie Cochran’s ex-clients, started accusing Cochran (apparently falsely) of all sorts of bad things, and picketing his office to publicize these allegations. Cochran sued, the court found that the statements were libelous (the trial was held before the judge, without a jury), and the court issued a permanent injunction that barred Tory from (among other things) “(i) picketing Cochran [or] Cochran’s law firm; (ii) displaying signs, placards or other written or printed material about Cochran [or] Cochran’s law firm; (iii) orally uttering statements about Cochran [or] Cochran’s law firm.”

The California Court of Appeal upheld the injunction; it concluded that the injunction wasn’t an unconstitutional prior restraint because “Although a prior restraint can be presumptively unconstitutional, that rule has no application where, as here, an injunction against a private person operates ‘to redress alleged private wrongs,’ not to suppress a legitimate publication.” In context, it seems that the court was trying to distinguish speech on matters of so-called “legitimate public concern,” that generally can’t be enjoined, from speech on matters of supposedly “private concern,” such as a lawyer’s supposedly cheating his client.

I predict that the Supreme Court will overturn the lower court decision. I also predict that the vote will be 9-0, though I’m less confident of that. (Warning: My predictions of Supreme Court decisions are notoriously unreliable, and yet I persist in being confident about at least some such predictions. How does that make any sense?)

Here’s my thinking: There’s some controversy over whether a court may enjoin libelous statements after a finding on the merits that the statements are indeed libelous. The likely answer is that it can, since such libelous statements are unprotected by the Constitution. (See this article for more.)

But here the court enjoined all statements (in certain media) by Tory about Cochran, without any regard for whether they are libelous. The statement “I think Cochran is evil because he represented O.J.,” clearly a constitutionally protected statement of opinion, would be enjoined, too, as would true factual allegations about Cochran. That can’t be permissible. And even though the Court has said that statements on matters of private concern are more restrictable in some contexts — chiefly when the government is acting as employer, or when the statements are false — it has stressed that they are nonetheless constitutionally protected. They can’t be enjoined, when they’re constitutionally protected opinion, simply because the speaker has said unprotected things in the past.

I also think this case illustrates the defects of the public concern / private concern line, a matter that I have discussed at length in this article and in the last six pages of this article. Criticisms of prominent lawyers are matters of legitimate concern to the public as well as to the ex-client who feels wrong. If they involve false statements of fact, they may be properly punishable, in some situations even if they’re on matters of public concern. But if they involve true statements or statements of opinion, they should remain protected. I doubt, though, that the Court will have to comprehensively reexamine this distinction in this case: It will be enough for the Court to say (as it did in Connick v. Myers) that even statements on matters of private concern are constitutionally protected (at least against injunctions imposed on private citizens, as opposed to firing of government employees), and can’t be enjoined if they’re opinions or true statements.

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