Tory v. Cochran – Oral Argument – March 22, 2005

Media for Tory v. Cochran

Audio Transcription for Opinion Announcement – May 31, 2005 in Tory v. Cochran

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William H. Rehnquist:

We’ll hear argument now in No. 03-1488, Ulysses Tory v. Johnnie L. Cochran.

Mr. Chemerinsky.

Erwin Chemerinsky:

Good morning.

Mr. Chief Justice, and may it please the Court:

The injunction in this case violates the most basic principles of the First Amendment.

It’s a prior restraint.

It’s a content-based restriction on speech.

It’s vastly overbroad.

It even restricts the speech of those who are not a party to the lawsuit, such as Petitioner Ruth Craft.

The injunction in this case is inconsistent with this country’s unique and profound commitment that speech by public officials and public figures be open, robust, and uninhibited.

One way in which the injunction is clearly unconstitutional is in restricting the speech of those who are not a party to the lawsuit.

For example, Ruth Craft is expressly restrained from ever speaking again about Johnnie Cochran even though she was never named as a party to the lawsuit.

And, in fact, Cochran’s attorney admitted at the beginning of trial, she wasn’t a part of the lawsuit.

David H. Souter:

How about you?

You’re in trouble too, aren’t you?

[Laughter]

Erwin Chemerinsky:

Yes, I am, Your Honor.

This injunction is so broad that if I talk about Johnnie Cochran or this case on the sidewalk in front of this Court or pass out copies of the brief or speak to any reporter, I am violating the terms of the injunction and I could be held in contempt of court.

Ruth Bader Ginsburg:

Mr. Chemerinsky, you speak about the injunction, and the injunction has three parts.

I thought that you were not challenging… at least the question presented doesn’t suggest you’re challenging… the first one that concerns distance, the 300 yard from Cochran or his place of business, and the third one, which is an anti-harassment provision.

Do I understand correctly that it is only the second one that you’re challenging?

Erwin Chemerinsky:

No, Your Honor.

The question presented is that the injunction is unconstitutional.

One of the reasons why the injunction is unconstitutional is that it’s based on speech that’s protected by the First Amendment.

All of the statements that were uttered by Mr. Tory are opinion protected by the First Amendment.

There is not the requisite actual malice.

And so it’s our position that the injunction itself is unconstitutional.

Ruth Bader Ginsburg:

But your question is preventing all future speech about an admitted public figure, and the first and third provisions of this injunction do not prohibit all future speech.

Erwin Chemerinsky:

Yes, Your Honor, that’s correct.

It’s our position, though, that the injunction is based on speech that’s protected by the First Amendment, and we believe that the question presented is that the injunction is impermissible in its restriction of speech.

Sandra Day O’Connor:

But that isn’t what you’ve said in the question presented.

Why shouldn’t we be limited to answering the question presented?

And that would leave the other parts there.

Erwin Chemerinsky:

Well, of course, you’re limited to the question presented.

Our position, though, is that the injunction in its restriction of speech is unconstitutional.

And one of the reasons why the injunction is unconstitutional is that all of the speech that occurred in this case is speech that’s protected by the First Amendment.

Sandra Day O’Connor:

Yes, but you understand Justice Ginsburg’s question surely, and I would imagine that even if you prevail, nothing we would order would affect the first and third parts.

Erwin Chemerinsky:

Well, Your Honor, certainly we believe that the injunction is most clearly unconstitutional in its overbreadth.

We believe also and separately the injunction is unconstitutional because injunctions are not a permissible remedy in a defamation case, especially concerning public officials and public figures.

But it’s also our position that the injunction is based on speech that’s protected by the First Amendment, and thus, the injunction violates the First Amendment.

Antonin Scalia:

Well, but that doesn’t–

Sandra Day O’Connor:

Mr. Chemerinsky, is it true that your client intends to go on defaming Mr. Cochran?

Erwin Chemerinsky:

No, Your Honor.

We don’t believe our client has ever defamed Mr. Cochran.

We believe that all of his speech is just opinion.

Sandra Day O’Connor:

Does he intend to continue making the same comments that he made before?

Erwin Chemerinsky:

His exact words were that perhaps he would continue to express his view that Mr. Cochran owes him money.

Sandra Day O’Connor:

All right.

Now, let me ask you this.

Under your theory, if… if the defendant is judgment-proof, does respondent have any remedy at all if the statements are defamatory?

Erwin Chemerinsky:

Yes, Your Honor.

Sandra Day O’Connor:

What is it?

Erwin Chemerinsky:

There is, of course, a remedy.

Since we’re dealing here with a public figure, there is the remedy of expressing views which this Court has said in Gertz v. Welch is available to a public figure.

There is a damage judgment that’s available.

Certainly, Your Honor, there can’t be a different rule–

Sandra Day O’Connor:

But if… if the defendant is judgment-proof, what good does that do?

Erwin Chemerinsky:

–Your Honor, there is a damage judgment that forever would be available against the person.

And it cannot be, Your Honor, that those who are poor will have injunctions–

Anthony M. Kennedy:

Well… well, your… your answer should be to Justice O’Connor there is no effective legal remedy under your theory of the case.

Erwin Chemerinsky:

–No, Your Honor, I would disagree with that.

Anthony M. Kennedy:

I mean, you… you say he has the remedy of… of counter-speech.

We’re talking… that’s really that doesn’t answer the question.

The question is, is there anything he can get from the courts other than a damage remedy, and your answer I think is no.

Erwin Chemerinsky:

That’s correct, Your Honor.

From the courts, he can get a damage remedy but I don’t accept that a damage remedy is inadequate just because a person may be poor.

The damage remedy will be that they’d be collected for the person who gets assets in the future.

Also, as I was saying to Justice O’Connor, it can’t be–

Anthony M. Kennedy:

Well, it… it seems to me that that really avoids the problem… the problem.

So suppose we disagree with you about that.

Then it’s true that there is no… there is no legal remedy that he can get.

Erwin Chemerinsky:

–But then, Justice Kennedy, it can’t be the rule that poor people have their speech enjoined, but those with assets can continue to speak in the future.

Antonin Scalia:

–Well, it also can’t be the rule that poor people can defame ad libitum and… and people who have money cannot.

I mean, that’s… that’s not a fair rule either.

Erwin Chemerinsky:

No, Your Honor, but that’s why there would be, of course, the ability of a court to issue a damage judgment.

There are many instances in which damage judgments can’t be collected.

Antonin Scalia:

It’s worthless against a… against a person who has no assets.

Erwin Chemerinsky:

But that’s true everywhere in the legal system, Your Honor.

And I would also argue here that none of Mr. Tory’s statements were defamatory.

I would point–

Ruth Bader Ginsburg:

That’s another one that is in your brief.

You say that these were statements of opinion not fact.

But that surely is not presented in your question.

You… you don’t… there were findings made that these statements were defamatory, and your question presented does not seem to me to encompass at all the question whether these statements were defamatory.

Erwin Chemerinsky:

–I would disagree, Your Honor.

The question presented is whether this injunction, the forever stops speech, violates the First Amendment.

One reason why–

Antonin Scalia:

Not… not this injunction.

The question presented is whether a permanent injunction as a remedy in a defamation… in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.

There’s no suggestion in that wording that you claim that in this particular case there was no defamation.

Antonin Scalia:

I… I just don’t think it’s fairly included within the question.

Erwin Chemerinsky:

–Your Honor, what I am saying is that the question presented does ask whether this injunction, which permanently restricts speech–

Antonin Scalia:

No, it doesn’t.

It says whether a permanent injunction as a remedy in a defamation action preventing all future speech about an admitted public figure violates the First Amendment.

Erwin Chemerinsky:

–We would argue–

Antonin Scalia:

There’s nothing about this particular injunction which is based upon speech that is not defamation.

There’s nothing in there about that.

Erwin Chemerinsky:

–Your Honor, our position is that question asks whether an injunction violates the First Amendment, and certainly it is about this case.

And our position is that all of the speech that was expressed in this case is opinion.

And it’s important–

Stephen G. Breyer:

All right.

Erwin Chemerinsky:

Now, if that’s so–

Anthony M. Kennedy:

Well… well, there really… there are findings against you, and to say that a lawyer is a crook, a liar, and a thief and you’re trying to tell us that that’s not defamatory, I mean, I… I think we should just proceed on… on some other basis for this argument.

We have other questions to discuss.

Erwin Chemerinsky:

–Sure.

But, Your Honor, I want to just respond to that.

The exact statement there was… and I’ll quote it for you and it is on page 54 of the joint appendix.

Johnnie is a crook, a liar, and a thief.

Can a lawyer go to heaven?

Luke 11:46.

Your Honor, this Court has said, for example, in Greenbelt Cooperative that charging somebody with blackmail is expressing opinion.

In Letter Carriers v. Austin this Court said calling somebody a traitor is opinion.

Stephen G. Breyer:

–All right.

That… that… what you’ve quoted many… much of this I wouldn’t repeat in polite company.

You’ve reported one of the most mild, and in fact there are two findings.

One, this is not just defamation.

It was an action for defamation, as well as a tort of invasion of privacy.

And there is a finding, first, that this was done intentionally to create a negatively charged and ominous environment, and this is not a matter of speech-related issues.

It is simply the use of false and defamatory and privacy-invading communications, or worse, or attempt to improperly coerce payment of money in tribute for… for desisting from that type of activity.

All right.

Stephen G. Breyer:

Now, those are the findings against you.

So suppose I agreed with you hypothetically that that, with all these findings, is nonetheless protected by the First Amendment.

All right?

Now, suppose, in other words, you convince me of that.

Now, I want to know how to write my opinion on that assumption to protect what I was worried about yesterday, that a woman who has a boyfriend or a husband is being continuously harassed in… with methods similar to this one.

It’s easy to transpose those two cases which are both on my mind.

And I want to know if in your opinion that these restraining orders, which try to prevent this kind of thing, among others, are unconstitutional, if there’s a way of distinguishing them, if you could possibly win on what theory.

And what I’m trying to get you to do is to say is it absolute.

Are there limits?

If so, what?

Erwin Chemerinsky:

I would suggest three different ways in which you could write the opinion that distinguished the case.

The first is that this injunction is vastly overbroad, that even if there can be an injunction to say that Ulysses Tory and Ruth Craft can never again say anything about Johnnie Cochran in any public forum, that I can never speak about Johnnie Cochran would violate the First Amendment.

A second way of distinguishing is that defamation is different, that when the First Amendment was adopted, the clear history was that above all it was to prevent prior restraints, and that injunctions were not permitted in defamation actions.

That’s quite different than a harassment action.

And third, as I’ve argued, what makes this different is the basis for this injunction is speech protected by the First Amendment.

With regard to the findings that you referred to, you mentioned two.

The first is invasion of privacy.

Your Honor, the only privacy claim in this case was false light invasion of privacy.

California law is clear.

When there is a defamation action and a false light claim, the false light claim is automatically dismissed as duplicative when it’s based on the same fact.

The second basis you pointed–

William H. Rehnquist:

Mr. Chemerinsky, this case comes up to us from a California appellate court.

Surely they know California law better than we do.

Erwin Chemerinsky:

–Yes, Your Honor, but they did not base their decision on the privacy claim because California law is clear that when it’s false light invasion of privacy brought together with a defamation action, the false light claim is dismissed.

That’s a California case, Couch v. San Jose Unified School District.

William H. Rehnquist:

Well, we’re not going to debate among ourselves over what California law is.

Erwin Chemerinsky:

No, Your Honor.

All I’m saying is it’s important to be clear about what the privacy claim is.

As I was saying to Justice Breyer, there may be privacy claims that give rise to injunctions.

Harassment claims may give rise to injunctions, but not the privacy claim in this case which was just about false light, which even the California Court of Appeal admitted is treated together with defamation.

Anthony M. Kennedy:

Suppose this picketing had taken place in front of his house, every day in front of his house.

Erwin Chemerinsky:

Your Honor, under Frisby v. Schultz, that would be a different situation.

Under Frisby v. Schultz, this Court said–

Anthony M. Kennedy:

All right.

Well… well, then this… this argument you’re making, oh, never, never, the sky is falling and so forth, I… I think we have to be more precise here.

I think if it were in front of his house, it would be different.

If he had alleged $10 worth of monetary damages, it would be disparaging the quality of his services, which would be a trade libel, and the Restatement at least… I don’t know California law… says that you… would you agree that you can enjoin a trade libel–

Erwin Chemerinsky:

–Well, Your Honor–

Anthony M. Kennedy:

–that disparages quality of goods to the serious injury of a… of a business?

Erwin Chemerinsky:

–Actually, Your Honor, the vast majority of cases have held that you cannot have an injunction for product defamation.

And so I think while that’s a different and more difficult question, most courts have said no even there.

And Your Honor, I’m not saying there can never be injunctions.

But I am saying that this Court has said there’s a very strong and heavy presumption against injunctions, and that never, not once in the 214-year history of the First Amendment, has this Court ever upheld an injunction as a remedy in a defamation action.

And, Your Honor–

Ruth Bader Ginsburg:

Well, if… if this under… the underlying claim seems to be that Mr. Cochran is essentially being blackmailed; that is, this… this… your client wants tribute to go away.

And you say, yes, but it’s defamation.

It’s a defamation action.

Therefore, damages is the only remedy.

Is there nothing that one can do to stop another from engaging in blackmail?

Erwin Chemerinsky:

–Yes, Your Honor, there is.

If this was blackmail or extortion, Johnnie Cochran could have filed a criminal complaint with the police.

He could have civilly sued for blackmail or extortion.

But, Your Honor, this wasn’t extortion.

Anthony M. Kennedy:

What kind of a jurisprudence is it that a person can go to jail but that he’s freed from an injunction?

I mean, why… why do we do this?

Erwin Chemerinsky:

Well, Your Honor, that’s because this Court has said that injunctions of speech are even worse than criminal penalties.

I would refer this Court–

Anthony M. Kennedy:

But… but why… is that true in every case?

I mean, take the timid person who’s not sure… I know the law doesn’t protect the timid person in the first area, but let’s… let’s assume the timid person is not sure.

So he wants… he wants to get an equitable ruling first, declaratory judgment.

Anthony M. Kennedy:

He… and he would take an injunction.

That’s certainly much easier than going to jail.

Erwin Chemerinsky:

–But, Your Honor, I’d remind you of this Court’s language in the Vance v. Universal Amusement where the Court said presumption against prior restraints is heavier and the degree of protection broader than against limits on criminal penalties.

Anthony M. Kennedy:

I know, but I’m asking you why that… why that should be.

If… if you asked a person not familiar with our jurisprudence, which is worse, having an injunction that you can argue about or going to jail, I… I think they would say that going to jail is worse.

Erwin Chemerinsky:

But, Your Honor, in terms of the First Amendment, there are reasons why an injunction has always been regarded as worse.

Stephen G. Breyer:

Always?

Do you want to apply that to an harassment action too against a woman who has the restraining order?

No restraining orders in divorce cases in case they’re against speech because even if violence is threatened, even if… et cetera.

I mean, how… how far do you want to push that principle?

Erwin Chemerinsky:

Your Honor, I don’t want to push the principle at all to harassment.

I believe that injunctions are completely appropriate in harassment actions.

I think it is quite important to note that the California harassment statute expressly excludes speech which is protected by the First Amendment as being a basis for harassment.

The history of the First Amendment is different.

To go back to Justice Kennedy’s question, it’s always been thought that an injunction strikes at the very heart of the First Amendment because, as Justice Scalia pointed out–

Antonin Scalia:

Why can’t we say that speech that is… is being used for extortion is different, just as speech which is being used for harassment is different?

And just as you can get an injunction for the latter, you ought to be able to get an injunction for the former.

Not all speech, but only when speech is being used to… to extort money.

Erwin Chemerinsky:

–Yes, Your Honor, there can be an injunction for extortion, but this was not extortion.

There was never the criminal complaint.

There was never the civil action.

And it didn’t meet the requirements for extortion.

Your Honor, California law, Penal Code section 518, defines extortion as, quote, the obtaining of property from another with his consent induced by a wrongful use of force or fear.

There wasn’t the wrongful use of force or fear.

Now, it may be that Ulysses Tory was speaking–

Antonin Scalia:

Here I think there was… why isn’t there a use of fear when, you know, you’re afraid of this person destroying your business by calling you a liar and a cheat?

Wasn’t Mr. Cochran afraid of that… of that happening?

Erwin Chemerinsky:

–Your Honor, this Court is required to do an independent review of the record under Bose v. Consumers Union.

There’s no indication that Mr. Cochran suffered that fear from Mr. Tory being outside.

It’s true that Mr. Tory may have believed that he was owed money by Johnnie Cochran and was also trying to encourage Mr. Cochran to pay.

Erwin Chemerinsky:

But this Court has said in cases like NAACP v. Claiborne Hardware speech does not lose its protective character simply because it may embarrass others or coerce them into action.

Ruth Bader Ginsburg:

Mr. Chemerinsky, the district… I mean, the trial court made certain findings and I’m looking at page 42 of the joint appendix.

The first is that these statements were actually made for the purpose of inducing Cochran to pay Tory amounts of money which Tory was not entitled.

That’s one finding.

And then finding 24, despite repeated requests, Tory has refused to cease picketing unless he was paid money… a monetary settlement by Cochran.

And then 27 that says this is simply use of false and privacy-invading communications to coerce or attempt to improperly coerce payment of money in tribute for desisting from that type of activity.

And those sound like findings.

It’s true that the label of extortion has been put on it, but it certainly does sound like the… that the purpose of the speech was to extract money not owed.

Erwin Chemerinsky:

But, Your Honor, since this is a defamation action, not an extortion action, the rules under the First Amendment for defamation have to apply.

Under the rules of the First Amendment for defamation, injunctions are not available to public officials or public figures.

Anthony M. Kennedy:

Well, so this finding… the court shouldn’t have made these findings?

It was irrelevant?

Erwin Chemerinsky:

Well, Your Honor, I believe that the–

Anthony M. Kennedy:

Was there an objection to the testimony that established this?

Erwin Chemerinsky:

–Yes, Your Honor.

Mr. Tory, who was appearing pro se in the trial court, from the very outset objected that he was being held liable for speech protected by the First Amendment.

David H. Souter:

No, but it seems to me… and I think what bothers me is… is what bothers Justice Kennedy.

It seems to me that the argument you just made is an argument that given the pleadings in this case, the findings that Justice Ginsburg just quoted really were irrelevant findings, that they should not have gotten… that the court should not have gotten into extortion and so on and should not have provided a remedy for extortion, quite apart from the fact of whether it’s an appropriate remedy, constitutional or otherwise.

And that, it seems to me, is… is something that we… we are not here to touch.

That’s a question of California law.

What we are here to touch is, number one, whether the injunction is overbroad with respect to pure speech, and maybe we are here… that we have a question about the… the breadth of the case we took.

But maybe we are here to determine whether there can be an injunction against blackmail or harassing activities.

But I… I think we’re not here to decide whether California could have gotten to the question of blackmail, harassment, and injunction for that.

Do you agree with that?

Erwin Chemerinsky:

No, Your Honor.

I certainly agree with the first point.

One issue before this Court is whether this injunction is overbroad, and it clearly is in terms of the breadth of speech that’s regulated and whose regulated.

But as to the second point that you make, this is a defamation action, and thus the issue before this Court, clearly presented in the question presented, is whether a permanent injunction can be issued in a defamation case remedy when the plaintiff is a public figure.

David H. Souter:

Well, it can certainly… the… the issue is certainly before us as to whether such an injunction can be issued with respect to defamation pure and simple.

But the findings that Justice Ginsburg has… has read and part of the order in question here seems to go beyond pure defamation.

David H. Souter:

It goes to the kind of demonstrative activity which plausibly is found to have been in aid of extortion.

And that, it seems to me, is an entirely different question.

We may… I’m not saying we will, but we may agree with you that it’s overbroad.

We may agree with you that as to pure speech, you can’t enjoin it.

But that doesn’t necessarily mean that every part of this injunction is wrong, and it seems to me it is irrelevant as to whether the… the State of… the courts of California should have reached extortion.

Erwin Chemerinsky:

I would disagree in this way, Your Honor.

Bose v. Consumers Union makes clear that when it is a defamation action, this Court and every appellate court has to do an independent review of the record.

David H. Souter:

With respect to the defamation, pure and simple.

I agree with you.

We… there is a heightened standard of review, but I don’t think that addresses one way or the other what the standard should be when an action in the State courts has been treated as an action both for defamation and for extortion or harassment.

Erwin Chemerinsky:

But, Your Honor, it was not treated here as an action for extortion or harassment–

Antonin Scalia:

Mr. Chemerinsky, let me put the question this way.

Suppose a State does not have a civil action for extortion.

It provides criminal remedies but no civil action for extortion.

Why does the Constitution not permit us to treat, in that State at least, a civil action for defamation which has within it elements of distortion differently from pure defamation?

Erwin Chemerinsky:

–Your Honor, I would say the history of the First Amendment is different.

A State can create a civil action then for extortion at the urging of this Court, but if you open the door to injunctions in defamation cases, then there’s the possibility that in any defamation case, somebody might plead something about extortion, and injunctions will not be rare but will be the norm.

John Paul Stevens:

May I ask this… may I ask this question?

Supposing the only thing he did was to carry a sign that said Johnnie is a crook, a liar, and a thief, and the trial judge finds that is false, and he’s carrying it in a sign, could the trial judge enjoin him from carrying that sign in front of Johnnie Cochran’s office?

Erwin Chemerinsky:

No, Your Honor, because the law is clear that injunctions are not a permissible remedy in defamation cases.

John Paul Stevens:

What’s the best authority you have for that proposition?

Erwin Chemerinsky:

Near v. Minnesota would be the best authority where this Court said clearly that injunctive relief should not be awarded in a defamation case.

Anthony M. Kennedy:

Add to Justice Stevens’… add to Justice Stevens’ hypothetical that he shows that he’s losing some clients.

Erwin Chemerinsky:

But, Your Honor, even… yes, Your Honor.

But I don’t think that changes the hypothetical in terms of enjoining the defamatory speech.

William H. Rehnquist:

Would you add too that he’s judgment-proof?

Erwin Chemerinsky:

Well, again, as I said to Justice O’Connor, I don’t think it can matter whether he’s judgment-proof because we can’t have a different rule that we allow poor people’s speech to enjoin and not wealthy people.

Anthony M. Kennedy:

You’re saying… you’re saying that a State cannot constitutionally prohibit someone from making false statements in front of the business that causes the business to lose money.

Erwin Chemerinsky:

Well, Your Honor, there are other causes of action that may allow that.

If it could be–

Anthony M. Kennedy:

So I’m… my question is, is this constitutional to prohibit this conduct?

Erwin Chemerinsky:

–Not in a defamation action, Your Honor.

Anthony M. Kennedy:

That’s–

Ruth Bader Ginsburg:

I–

Anthony M. Kennedy:

–that’s not the question.

John Paul Stevens:

But what is your authority for that proposition?

Erwin Chemerinsky:

Well, I would say that the authority comes from the fact that never in 214 years has this Court ever upheld an injunction in a defamation case.

John Paul Stevens:

Have we ever set aside an injunction that did that?

Erwin Chemerinsky:

Well, not under those facts.

John Paul Stevens:

Have we done it either way?

Erwin Chemerinsky:

No.

That’s correct, Your Honor.

Anthony M. Kennedy:

Have we ever… have we ever considered a case where there’s a strong element of extortion involved?

Erwin Chemerinsky:

I would say yes, extortion for Austin v. Keith.

There was speech to pressure, and yet this Court said even though the speech was to pressure, it’s still protected by the First Amendment.

I’d like to save the rest of the time for rebuttal, if that’s permissible.

William H. Rehnquist:

Very well, Mr. Chemerinsky.

Erwin Chemerinsky:

Thank you.

William H. Rehnquist:

Mr. Cole, we’ll hear from you.

Jonathan B. Cole:

Mr. Chief Justice Rehnquist, and may it please the Court:

For years, Mr. Tory has relentlessly targeted Johnnie Cochran with a pattern of defamatory speech in a public forum for purpose of causing Mr. Cochran to pay Mr. Tory money in tribute for ceasing from this unprotected activity.

He admitted at trial he intended to engage in this conduct.

He was doing it just so he could be paid money, and when asked if he would continue to do so, he stated he would.

David H. Souter:

Well, do you… do you defend the injunction in its entirety?

Jonathan B. Cole:

Yes–

David H. Souter:

In other words, the… the… Mr. Chemerinsky didn’t have too much chance to… to get very far into it, but one of his points was that there was… quite apart from any injunction against picketing, harassment, et cetera, there was an injunction simply against speech on a given subject directed to a lot of people with no limit of time.

With respect to that last aspect, do you defend the injunction?

Jonathan B. Cole:

–Yes.

First of all, I don’t believe it was directed to a lot of people.

As this–

David H. Souter:

Well, it was directed, number one, to a named person who was not a party to the case, and it was directed to agents and employees of… of the named party.

So, I… I assume that Mr. Cochran probably has a fair number of agents and employees, so it does seem like a large number of people.

Jonathan B. Cole:

–I believe this Court said in Madsen that that would raise an abstract controversy that Mr. Tory doesn’t have standing to attack the injunction for other persons who are not before the court.

No aider or abetter has ever been served with this injunction.

Ms. Craft has never been served with this injunction.

Only Mr. Tory.

So I don’t believe–

David H. Souter:

Well, let me ask you a law school question.

In… given the injunction on its face, with that breadth, is that injunction defensible with respect not to picketing, not to harassment, simply to speech in a public place?

Jonathan B. Cole:

–I defend the injunction, and respondent defends the injunction on the ground that it is conduct that was being enjoined–

David H. Souter:

I… I asked you–

Jonathan B. Cole:

–from the use of unprotected speech.

David H. Souter:

–to exclude the… the issue of conduct.

I said forget the injunction for a moment with respect to picketing, with respect to harassment, and we’ll say with respect to blackmail, since that has come up.

Forget that.

Simply take the portion of the injunction that enjoins speech by these people, associates, agents, et cetera.

On the subject matter of the injunction for all time, do you defend that injunction?

Jonathan B. Cole:

Yes, we defend the injunction.

Ruth Bader Ginsburg:

Let’s take specifically the words of the injunction.

It’s against orally uttering statements about Cochran, just orally uttering statements about Cochran.

Jonathan B. Cole:

Yes.

Ruth Bader Ginsburg:

You say that someone can be enjoined–

Jonathan B. Cole:

Based upon the unique facts of this case, Justice Ginsburg, I say somebody can be enjoined.

I don’t say that in the abstract.

Sandra Day O’Connor:

Well, you can’t square that with the Near case at all.

I… I mean, the… the injunction on its face in part 2 has the appearance of being overly broad.

Jonathan B. Cole:

But in Near, they set forth certain factors, and those factors included that it was not a private redress of private wrongs.

The information was of legitimate public concern.

Neither of those elements are present in this action.

Antonin Scalia:

You don’t know that.

Sandra Day O’Connor:

You don’t–

Antonin Scalia:

You don’t know what future speech is going to be.

His future thing may be, you know, Johnnie Cochran shouldn’t be elected mayor of San Francisco.

That would be a… a question of public concern.

Jonathan B. Cole:

But, Justice Scalia, what I’m relying on is the fact that he has engaged in 3 years in a pattern of continuing, repetitive conduct.

Anthony M. Kennedy:

Well, what… what you’re saying is that an… an injunction can be overbroad based on past wrongful conduct.

And there is simply no authority for that proposition.

Jonathan B. Cole:

I’m not suggesting that this injunction is necessarily overbroad based upon that proposition because I believe there are–

Anthony M. Kennedy:

But we have just pointed out that it… that it… it prohibits lawful, harmless, truthful speech.

Jonathan B. Cole:

–I disagree with that, Justice Kennedy.

Sandra Day O’Connor:

–Well, it does on its face.

I mean, it is clearly overbroad.

Now, what should we do about that?

Jonathan B. Cole:

Well, if you’re asking me, based upon the breadth of the injunction, what I… if… if there was… are you asking me what I would do to modify the injunction?

You could merely strike… you could leave intact paragraph 2 and you could strike simply subsections (ii) and (iii) as being unconstitutionally overbroad.

Anthony M. Kennedy:

Now, let… let me ask you about that.

Let’s… let’s assume, for the moment, that a majority of the Court would find that some of these provisions are overly broad.

Is there any authority that tells us what to do next?

This is not like a statute where we have to save the statute.

Do we have any obligation to save the injunction?

Send it back and let it be done.

Let it be done all over again.

I mean, why… why should we rewrite it up here?

Do you have any authority that requires us or permits us to do that?

Jonathan B. Cole:

Yes.

In… in Madsen, Justice Kennedy, you struck… the Court struck certain provisions as being unconstitutionally overbroad and left certain intact.

So there’s no reason why you can’t look at this injunction, which clearly does not attack paragraph 1.

The… they do not attack paragraph 1.

They do not attack paragraph 3.

They only level their attack at paragraph 2, and paragraph 2, by striking subsections (ii) and (iii), would then be limited to the exact conduct in issue, which is picketing.

Stephen G. Breyer:

So… so if… before leaving that point, what the injunction prohibits is that Tory and those acting in concert, cooperation, or participation with him from, in a public forum, orally uttering statements about Cochran.

All right.

That’s what it says.

Now, do you think that if Tory or someone acting in cooperation with him says, I’ve had a change of heart, Johnnie Cochran is a marvelous person, and he says that on television… do you think that individual at that time has violated this injunction?

Jonathan B. Cole:

Absolutely not.

Stephen G. Breyer:

Absolutely not.

Because?

Jonathan B. Cole:

First of all, that’s why–

Stephen G. Breyer:

It said the words.

They violated the words.

It was a statement, but he has not violated the injunction because?

Jonathan B. Cole:

–Because I don’t believe that’s a public forum.

Stephen G. Breyer:

Oh, no, no.

He does it in a public forum.

In fact, he hires Disney Hall.

[Laughter]

And moreover, he gets on stage and announces it.

Okay?

There’s no problem about a public forum.

So, now, why doesn’t it violate the injunction?

Jonathan B. Cole:

Your… Your Honor, I believe there are alternative channels of communication here.

Stephen G. Breyer:

No.

I thought what you were going to say… but you’re not.

So I’m very interested in that, and I’m glad I asked.

I thought you were going to say when it says uttering statements, it means statements of the kind or identical to those we have identified earlier in this opinion.

Jonathan B. Cole:

Well, I was–

Stephen G. Breyer:

But, now, you haven’t said that.

I said it, and I think it’s too late for you to say it.

[Laughter]

Jonathan B. Cole:

–I think I said it when I said there was a continuing pattern of repetitive conduct under Pittsburgh Press, over 3 years that that was the conduct that he has engaged in.

Jonathan B. Cole:

And that was clearly the purpose of this injunction, Justice Breyer.

We know that.

And the purpose of the injunction is to enjoin conduct that’s designed to extort money from Mr. Cochran.

William H. Rehnquist:

In more than one case, we’ve said that an injunction has to be precise and clear and not leaving things to the imagination.

Jonathan B. Cole:

Well, I think this is precise and clear.

Based upon the breadth of the injunction, it’s very clear.

Based upon this man’s prior repetitive conduct of defaming Mr. Cochran with unprotected speech for the purpose of attempting to extort money from him–

Antonin Scalia:

Well, it’s… it’s–

John Paul Stevens:

But nothing in the injunction refers to prior conduct.

Antonin Scalia:

–That’s right.

It’s–

John Paul Stevens:

The injunction just speaks for itself.

It doesn’t say what… doing what you used to do or anything like that.

Jonathan B. Cole:

–The injunction–

John Paul Stevens:

You cannot picket Cochran or Cochran’s law firm.

Period.

Jonathan B. Cole:

–If we restricted the injunction to specific words used such as you cannot picket Johnnie Cochran’s law firm and say he’s a crook, liar, and thief, the response will be that he’ll come up with five new words to defame Mr. Cochran for purposes of extorting–

John Paul Stevens:

Well, maybe there are different grades of specificity.

Maybe it doesn’t meet precisely the same words, but I think there are other ways to draft it that say no picketing.

Period.

Jonathan B. Cole:

–Well, there could be no picketing for purposes of… no… which contains defamatory speech for purposes of extorting Mr. Cochran.

But–

John Paul Stevens:

All I’m suggesting is just draft it… just excising (ii) and (iii) from paragraph 2 would not necessarily solve the problem completely.

Just subparagraph (i) says picketing Cochran or Cochran’s law firm, which is a pretty broad prohibition.

Jonathan B. Cole:

–Well, I would disagree based upon the prior… continuing course of… of repetitive conduct and the fact that this… over a period 3 years, once a week, this man spent 3 to 4 hours a day of his time defaming Mr. Cochran at his law office.

When we enjoined him from doing so at his law office, he moved it to the Los Angeles Superior Court.

And I think the fact that Mr. Cochran is a public figure actually favors the breadth of this injunction.

If this was not a public figure, then the public forum issue would not be as effective.

But because Mr. Cochran is a public figure, the only way he gets protection is in the public forum because this gentleman could move his picketing down to west L.A., Santa Monica Boulevard, nowhere near a courthouse, and to a public figure he can inflict the same damage to reputation.

And that is the problem we were contending with in attempting to draft an injunction that was not overbroad and yet could control Mr. Tory–

Ruth Bader Ginsburg:

–You… you did draft this injunction.

It wasn’t the… an inspiration from the judge unaided by your advocacy.

Is that so?

Jonathan B. Cole:

–It–

Ruth Bader Ginsburg:

This… the terms of this injunction.

Jonathan B. Cole:

–Were aided… were aided by my advocacy, Your Honor.

William H. Rehnquist:

Aided and–

Jonathan B. Cole:

Well said, Chief Justice Rehnquist.

What I’m suggesting here is Mr. Cochran would have been faced with… he has no remedy.

Injunctive relief is the only remedy.

And he would be faced with a multiplicity of actions–

Antonin Scalia:

–Why?

Why couldn’t he just be enjoined from… from similar defamation?

I mean, this… this enjoins him from… from true speech.

At least he could… he could have been enjoined from in the future defaming Cochran in the same manner.

And if he did that, then… then he could be punished.

Jonathan B. Cole:

–I think we would be… that injunction then would be attacked on being vague or ambiguous, that Mr. Tory wouldn’t have sufficient notice as to what he was allowed to say and not allowed to say.

I guarantee you that was–

Anthony M. Kennedy:

Well, if… if that’s so, then maybe Mr. Chemerinsky is right.

We… we shouldn’t have injunctions.

If you’re saying that injunctions can’t be narrowly tailored, it seems to me that you’re playing right into the argument that the petitioner is making.

Jonathan B. Cole:

–No.

I think they can be tailored.

I just don’t think they can be that narrowly tailored.

And I don’t think in this case, which I believe that the test we should be applying if we’re going to balance, is this… there’s no need for this injunction to be drafted in the least restrictive means.

I also continue to advance the argument that this… the facts of this case are unique.

It’s the use of speech to engage in unprotected conduct.

This… this conduct is not protected by the First Amendment.

The conduct of attempting to extort money from Mr. Cochran is not protected.

If that is not protected, then I believe we can craft–

William H. Rehnquist:

–You can… you can certainly have, you know, some unprotected speech in connection with extortion, like give me $5 million or I’ll shoot you.

But that… this was a far cry from that.

In other words, it isn’t just addressing the victim and saying give me something.

It’s denouncing the victim, which gets into free speech here.

Jonathan B. Cole:

–It certainly does, Justice Rehnquist.

But what I am suggesting is there was no remedy for Mr. Cochran that would have avoided a multiplicity of actions other than to draft the injunction in a form that would preclude Mr. Tory from engaging in the same conduct without regard to whether it was… and to let him know clearly… give him a safe harbor as to what he could and could not say.

William H. Rehnquist:

But the injunction isn’t limited to the same conduct.

Jonathan B. Cole:

But I don’t think it needs to be because of the pattern and practice that this man has engaged in over 3 years.

And if we take the example, which is so he has a change of heart and suddenly he now wants to praise Mr. Cochran and that’s become his… and he’s going to promote him as mayor of San francisco, he can certainly go into the court and modify the injunction.

William H. Rehnquist:

I thought he lived in L.A.–

[Laughter]

Antonin Scalia:

I think he’d like to get him up to San Francisco.

[Laughter]

Jonathan B. Cole:

He can certainly seek to modify the injunction, and that, as I pointed out in a subsequent letter brief, there’s… California doesn’t adopt the collateral bar rule.

And therefore, he has a check and balance in this case.

Under People v. Gonzales, 12 Cal. 4th 805, the collateral bar rule has no application in the State of California.

So in the unlikely event that Mr. Tory was engaged in speech praising Mr. Cochran, one, and two, in the… in the more unlikely event that someone was going to attempt to cite him for contempt for engaging in protected speech, he could contest, under First Amendment grounds, the enforcement of this injunction in the State of California because the collateral bar rule has no impact.

Anthony M. Kennedy:

Well, I’m… I’m baffled by that.

What you’re saying is that the injunction… we’re just all wasting our time?

The injunction doesn’t mean anything?

Jonathan B. Cole:

No, no, no, no.

Justice Kennedy, all I’m saying is–

Anthony M. Kennedy:

I… I fell off the track here.

Jonathan B. Cole:

–All I’m… all I’m saying is that if the collateral bar rule was in effect, you would waive your right to contest.

You don’t have a right to contest the constitutionality of the injunction on First Amendment grounds or constitutional grounds when it’s seek to be enforced against you.

That’s not a defense in a contempt proceeding.

California does not adopt that rule.

Therefore, Mr. Tory can always… if he is engaged in protected speech, he can easily contend–

Anthony M. Kennedy:

Oh, yes, but he’s different from other citizens because he’s at… he’s at risk of a contempt citation.

Jonathan B. Cole:

–I don’t dispute that.

Anthony M. Kennedy:

I mean, his speech is being chilled with… with respect to protected speech.

Jonathan B. Cole:

But there’s nothing unusual–

Anthony M. Kennedy:

So the collateral bar rule doesn’t help you at all because he’s subject to a contempt citation.

Jonathan B. Cole:

–He’s subject to it, but there’s a check and balance there in terms of when you balance, the potential remedy for Mr. Cochran… what… what is going to give Mr. Cochran the remedy he needs?

And if we balance that against the… the breadth of this injunction, I think we have to look at… one of the biggest concerns about prior restraints, when analyzed in terms of injunctions, is the collateral bar rule.

Stephen G. Breyer:

But it would be so easy.

I mean, it’s virtually no burden.

I take it what you’re saying is that this injunction in paragraph 2 at its heart is aimed at in public forums, keeping insults suggesting he was a crook against Johnnie Cochran unless you pay me $10,000.

Then I’ll stop.

Okay?

Now, at its heart, that’s what it’s aimed at.

Jonathan B. Cole:

That’s exactly–

Stephen G. Breyer:

And you are saying if in fact it’s ever enforced outside that heartland, you can have a defense.

It would violate the First Amendment.

But since it’s so easy just to write those words we just said right in paragraph 2, why shouldn’t the judge have to do it?

It’s so easy.

Say this is aimed at the heartland just as I said it and you said it, and it doesn’t apply outside of it.

Jonathan B. Cole:

–And I have no dispute with that, Justice Breyer.

I agree that was the whole purpose for the injunction.

That’s the basis of the injunction.

And you could always remand for further proceedings, consistent with any opinion you would write, that the injunction has to be tailored to… to deal with defamatory conduct, which is designed to extort or with the intent to extort.

And I–

Antonin Scalia:

That’s what he’s arguing.

You’re… you’re conceding that it’s overbroad.

Jonathan B. Cole:

–I’m saying if this Court… well, I’m gleaning the impression that this Court thinks it’s overbroad.

Antonin Scalia:

Ah, you’re very perceptive.

[Laughter]

Jonathan B. Cole:

And having gleaned that perception, I’m trying to suggest that, number one, there was no attack on paragraphs 1 and 3, and now we’re focused on paragraph 2.

And paragraph 2 can be tailored, as you have indicated, Justice Scalia, I think consistent with First Amendment issues.

And I think it’s important to point out that if we take away injunctive relief in a defamation action in this day… modern age–

John Paul Stevens:

You’re sort of saying the opposite of what your opponent said.

If we take it away, has it ever been there?

Jonathan B. Cole:

–It’s never been there.

John Paul Stevens:

What are we taking away?

Jonathan B. Cole:

I… I agree it’s never… you’ve never found it there and you’ve never said it can’t be there.

Stephen G. Breyer:

How does California work in that respect?

Because what I’ve been thinking of in my mind is that maybe we shouldn’t decide this in terms of State law boxes, that California seems to have an action.

Let’s call it a buzz action to get away from words.

And what that action is it’s a defamation but a certain kind.

It’s defamation accompanied by extortion.

And when you have defamation accompanied by extortion… call it whatever you want… an injunction is proper in these circumstances.

Now, can we decide it in such a way that we’re not talking about all defamation actions?

We are talking about this beast in California which uses the word defamation but also finds injunction and therefore issues… also finds extortion and therefore issues an injunction.

Jonathan B. Cole:

Yes, I think that you could limit the injunction to defamatory speech of a similar nature designed to extort.

Antonin Scalia:

Would… would that make Mr. Cochran happy?

What… what’s the big deal about extortion?

I mean, suppose this same conduct occurs in the future, but he doesn’t say I’ll stop if you give me a lot of money.

He just pickets every day and says Cochran is a shyster, don’t do any business with Cochran.

Do you think Mr. Cochran would be any… any happier simply because the guy says I’ll… hasn’t said I’ll stop if you pay me $10,000?

Jonathan B. Cole:

No, and I think that would be subject to the same injunctive relief.

I think this case is unique with the extortion element, but I don’t disagree, Justice Scalia, that that is why any decision that says injunctions in defamation actions would be improper.

I think people would start defaming with impunity.

Antonin Scalia:

You’ve got to give us some line.

I mean, the only reason we’re grabbing onto extortion is that… that there’s reluctance to say you can issue injunctions in all defamation actions.

Now, what… what limitation do you want to place upon the ability to issue an injunction if it is not defamation combined with extortion?

Jonathan B. Cole:

I don’t think you need to place a limitation other than you can enjoin the defamation conduct.

Take, for example, the Internet.

A posting goes on of a… of a business that… a startup company.

It can’t… damages of… for a startup company… they’re very difficult to prove.

Stephen G. Breyer:

But then you run into the public figure.

Stephen G. Breyer:

I mean, that’s a much more dangerous kind of rule of law, isn’t it?

I mean, a pure defamation action against a public figure, which they want to say this is.

You can write all kinds of things about public figures.

People can and do, for better or for worse.

Do… is there any authority for issuing in a pure defamation action an injunction?

Jonathan B. Cole:

There’s no authority, but there’s no authority that says you can’t do it.

But what I am suggesting is in… is in a pure defamation action that’s not tied to any specific wrongful conduct, there’s no reason why you couldn’t enjoin.

For example, if you found that a specific item was defamatory on its face, such as a posting on the Internet, the only way to get that posting off the Internet would be to enjoin it because damages aren’t going to solve the problem.

And if it’s… even if it’s purely defamatory, you could restrict it to that purely defamatory posting, similar to… to the obscenity cases where you’ve reviewed a film, you found it to be obscene, and then you preclude it.

There are procedural safeguards and you preclude it in the future.

Ruth Bader Ginsburg:

But you’ve just said something that I think that’s inconsistent with your earlier presentation.

You said you could enjoin that posting.

Here you said it wouldn’t be effective just to enjoin the particular placards that were used, the particular words because then there would be other words.

So the same question could come up with an Internet posting if you had an injunction not simply on what was posted but anything about this particular individual that might be posted in the future.

Jonathan B. Cole:

Well, Justice Ginsburg, I think where that leaves us is you’d have to engage in some sort of balancing about the… how narrowly tailored the injunction is and does it provide a sufficient remedy and, you know… and… and in this… and what test we would analyze it under, strict scrutiny, intermediate scrutiny, or the Ward test.

And… and I think that in applying those tests, you’d have to come to a balance, and if the balance is that you’re going to limit it to a specific type of speech or… then that… that would be a… a reasonable limit, and if it creates a multiplicity of actions, well, so be it.

But at least there’s a remedy for that posting or postings of a similar nature.

So–

Ruth Bader Ginsburg:

Now, you… you… to the extent that you’re complaining about extortion-like conduct, something else that you drafted… I’m looking at the complaint on page 7 of the joint appendix.

You have identified all defamatory, including with the false light invasion of privacy, but you don’t have any claim that looks like blackmail.

Jonathan B. Cole:

–If you’d… if I could direct you, Justice Ginsburg, to page 12 of the joint appendix at paragraphs (j) and (k) of the verified complaint, you will see that we alleged in a verified complaint that he’d engaged in three previous efforts of this same type of conduct, one.

And two, paragraph (k), that Tory is in the business of professionally extorting monies from innocent persons and business–

Anthony M. Kennedy:

I… I was going to ask you about that.

Were there findings to substantiate the allegations?

Jonathan B. Cole:

–Findings to substantiate–

Anthony M. Kennedy:

Specifically about the extorting money from the bank and the oil company.

Jonathan B. Cole:

–No, Justice Kennedy, there were not.

Anthony M. Kennedy:

No findings.

Jonathan B. Cole:

There was some testimony only on one of those issues, which was the oil company.

There was no findings on this issue.

Jonathan B. Cole:

But then I would refer you to paragraph (k) which specifically refers to extorting of monies.

And also in my opening statement, as is reflected in the trial’s transcript, the… the first thing I said is this is speech designed for an improper purpose.

It’s unprotected speech designed to extort money from Mr. Cochran.

That was the whole theme–

Ruth Bader Ginsburg:

But what… what I mean is could you have… without using the label defamation, have stated a claim for extortion or blackmail?

I’m not looking at your particular allegations but how you described on page 1 of the complaint what you were suing for: libel, libel per se, slander, slander per se, and invasion of privacy.

Jonathan B. Cole:

–I think we could have pled extortion had we chose to.

We could have pled inference with advantageous business relations.

We probably could have pled California’s–

Anthony M. Kennedy:

Does California law require you to label the type of the cause of action or is it notice pleading based on facts?

Jonathan B. Cole:

–Notice pleading based on facts, but we do label the causes of action.

The… the point I’m trying to make is whether every cause of action was pled, if the conduct is extortion, which is what the judge implicitly found by findings 20 and 27, that conduct is not protected.

And whether we named the cause of action correct in the complaint or we sued for that specified cause of action, doesn’t change what it is that we were seeking relief for, which is stopping this man from defaming Mr. Cochran until he was paid money.

We attempted to achieve that.

We thought we did a fair job in paragraphs 1 and 3, which they don’t attack and I agree is not fairly included within the question which has been certified here, nor is an attack on the underlying finding.

But we attempted in paragraph 2, broadly I agree, to avoid a multiplicity of actions and to give Mr. Tory other channels of communication other than the public forum where he is engaged in a continuing course of repetitive conduct to defame Mr. Cochran.

He… and… and this is… one point that I want to stress.

We don’t view this injunction as being violated if he went on TV, he went on the radio, he went in the newspapers.

We don’t view those as public forums under the definition that this Court has provided.

Those are not public forums.

We are not concerned about that.

We do not believe that those events will occur.

We did not seek to protect them.

So we have given Mr. Tory an unlimited venue to speak, but we said you can’t do this in the public forum because of your continuing course of repetitive conduct, 3 years, once a week, 52 times a year, over 150 times, 4 hours a day.

And with that, I would submit that while the injunction is broad, I don’t believe it’s a unconstitutional prior restraint, and to the extent this Court believes it is overbroad, I believe striking subparagraphs (ii) and (iii) of paragraph 2 would solve the problem, or alternatively, that in conjunction with a suggestion that it needs to be narrowed to deal with the speech and conduct in issue.

Thank you.

William H. Rehnquist:

Thank you, Mr. Cole.

Mr. Chemerinsky, you have 4 minutes remaining.

Erwin Chemerinsky:

Thank you.

Justice Breyer kindly invited my thoughts about how an opinion might be written, and there are three different ways not mutually exclusive.

Erwin Chemerinsky:

One is that this injunction is vastly overbroad for all the reasons that have been identified.

Mr. Cole said a couple of things.

One, he said that Mr. Tory can go to court and ask for modification of the injunction, but that’s what makes this a prior restraint, that Mr. Tory can only speak again if he goes to court and gets permission.

Also, he said at the end that Mr. Tory can go before the media.

However, under California law, under Damon v. Ocean Hill, the media is defined as a public forum.

A second way the opinion could be written is that this for speech protected by the First Amendment.

Justice Ginsburg, you asked me at the outset whether that’s in the scope of the question presented.

Well, it is directly relevant to what Mr. Cole was saying.

Because it’s all opinion, all hyperbole it is protected by the First Amendment and can’t be the basis for an extortion claim.

Ruth Bader Ginsburg:

Yes, but you’re asking us now to… the… the trial court found there was defamation, and now you want to argue, no, it wasn’t defamation.

It was mere opinion.

I really don’t see how that’s included in the question presented.

Erwin Chemerinsky:

I think it is because it goes to the question whether the injunction is permissible.

But I go on to the third way that the opinion could be written, and that’s that injunctions are not permissible as a remedy in a defamation case.

We agree that if there is a cause of action for extortion, it can have an injunction as a remedy.

We agree if the cause of action is for harassment, there can be an injunction as a remedy.

But those have specific elements that have to be met.

Those elements weren’t met in this case.

History is clear that injunctions aren’t allowed in defamation cases, and also, Your Honor, it’s quite important that Mr. Cole even said you can’t craft a narrow injunction in a defamation case.

Any injunction is either too narrow or too broad.

In Near v. Minnesota, this Court said that it was telling that in 150 years of the history of the First Amendment, there had never been an injunction approved by this Court in a defamation case.

We’re now 70 years later than that.

To approve an injunction in a case like this, even though it’s called defamation plus extortion, will open the door to injunctions as a routine matter in defamation cases across the country.

No–

Ruth Bader Ginsburg:

There have been… there have been injunctions against harassing conduct, threatening, stalking.

Erwin Chemerinsky:

–Yes, Your Honor, and we have no objection to injunctions of that sort.

What we object to is an injunction as a remedy in a defamation case and an injunction that is directed at speech.

That’s what the First Amendment prohibits.

Thank you.

William H. Rehnquist:

Thank you, Mr. Chemerinsky.

William H. Rehnquist:

The case is submitted.