Johnnie Cochran goes to Washington!

Today’s first case, Tory v. Cochran, No. 03-1488, involves an appeal brought by an ex-client of superstar attorney Johnnie Cochran. The client challenges the constitutionality of a permanent injunction that forever prohibits him from “orally uttering statements about Cochran [or] Cochran’s law firm.”

Erwin Chemerinsky will argue the case for the petitioner, Ulysses Tory, whose brief is available here. Jonathan B. Cole will argue the case for the respondent, Johnnie Cochran, whose brief is available here. Check out the following link for extended coverage of one of this Term’s more amusing cases.

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The Supreme Court will hear oral argument this morning concerning a question of vital significance to the Nation: do American citizens have a constitutional right to talk about Johnnie Cochran?

The case, Tory v. Cochran, arises out of a lawyer-client relationship gone sour. In 1983, Ulysses Tory retained Johnnie Cochran to represent him in a personal injury suit against the city of Los Angeles. By 1985, Tory became dissatisfied with Cochran’s representation, accused him of conspiring with the city, and demanded from Cochran $10 million “or very close to it.” Cochran declined to fork over the money and withdrew from the case without receiving compensation for his representation in the case, which he took on a contingency-fee basis.

Ten years later, following Cochran’s rise to fame in the O.J. Simpson trial, Tory renewed his interest in Cochran’s $10 million. He wrote to request payment for funds allegedly owed, and Cochran ignored the request. So Ulysses Tory took his epic struggle to the streets. Employing and feeding an entire troop of helpers, the aggrieved Tory picketed the Los Angeles Superior Court and Johnnie Cochran’s office with various defamatory statements, including: “Johnnie L. Cochran, Esq., Your Piss is Not Rain.”

Cochran sued for defamation and invasion of privacy. Cochran won at trial, at which point the case then took an interesting turn. When Tory admitted that anything short of an injunction would be unlikely to deter him from continuing his harassment, the trial court determined that mere damages would be an insufficient remedy. Accordingly, the court imposed a permanent injunction prohibiting Tory from “orally uttering statements about Cochran [or] Cochran’s law firm.” The California Court of Appeals upheld the injunction against Tory’s claims that it was an unconstitutional prior restraint, that it was unconstitutionally overbroad, and that it was not supported by sufficient evidence that his statements were provably false or made out of actual malice. The California Supreme Court declined to review the case, but the Supreme Court granted certiorari.

Tory v. Cochran poses the question whether the First Amendment permits a court to impose a permanent and prior restraint that forbids discussion of a public figure as a remedy in a defamation lawsuit.