HASSELL v. BIRDAppellant’s Request for Judicial NoticeCal.July 19, 2017SUPREME COURT FILED JUL 19 2017 Jorge Navarrete Clerk Case No. 8235968 IN THE SUPREME COURT Deputy OF THE STATE OF CALIFORNIA DAWN HASSELL,etal. Plaintiffs and Respondents, vs. AVABIRD, Defendant, YELP,INC., Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court ofthe County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith MOTION FOR JUDICIAL NOTICE; DECLARATION OF ROCHELLE L. WILCOX WITH EXHIBITS A-C; [PROPOSED] ORDER DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLEL. WILCOX rochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHURaschur@yelp.com (SB# 229566) 140 New Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. Case No. 8235968 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DAWN HASSELL,etal. Plaintiffs and Respondents, VS. AVABIRD, Defendant, YELP, INC., Appellant. After a Decision by the Court of Appeal First Appellate District, Division Four, Case No. A143233 Superior Court ofthe County of San Francisco Case No. CGC-13-530525, The Honorable Ernest H. Goldsmith MOTION FOR JUDICIAL NOTICE; DECLARATION OF ROCHELLE L. WILCOX WITH EXHIBITS A-C; [PROPOSED] ORDER DAVIS WRIGHT TREMAINE LLP THOMASR. BURKE thomasburke@dwt.com (SB# 141930) *ROCHELLE L. WILCOX rochellewilcox@dwt.com (SB# 197790) 505 Montgomery Street, Suite 800, San Francisco, CA 94111-6533 Tel.: (415) 276-6500 Fax: (415) 276-6599 YELP INC. AARON SCHURaschur@yelp.com (SB# 229566) 140 New Montgomery Street, San Francisco, California 94105 Tel: (415) 908-3801 Attorneys for Non-Party Appellant YELP INC. TABLE OF CONTENTS Page I. SUMMARYOF ARGUMENT.........c:cccccsssessessessesseeesesesessessecessesseees 1 Il. THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE ATTACHED COURT RECORDS AND ARTICLES.........0ccuu. 1 TT. CONCLUSIONW.0...occccccssesssseecnecesseecssecssesseessecsesessscessssssensaaeas 4 DECLARATION OF ROCHELLEL. WILCOX.......ccccceccceccssecesseerereees 5 [PROPOSED] ORDER...... eee ccccesecssseesessseesecesstecsseesssestesesscecssusscssesenaeeonses 7 “ m M o s N a TABLE OF AUTHORITIES Page(s) Cases Artucovich v. Arizmendiz (1967) 256 CalApp.2d 130...cessscscessesseecesecsseesssecsseeesescesseesssessetsereessesees 2 Balboa Island Village Inn, Inc. v. Lemen (2005) Cal. Supreme Court Case No. $127904 oo... ceccccsssseceesseeesseeneesseesseeenes 3 County ofSan Diego v. Sierra (1990) 217 Cal.App.3d 126.0...ce cecccesseesseeseneceessecssesseesseseesensesssatessseeesesessrees 2 Day v. Sharp (1975) 50 CalApp.3d 904.0... cecesccessceseesseecsseesseessesseeseesseseseeesseeseseeseeseeasees 2 Goldstein v. Hoffman (1963) 213 Cal.App.2d 803.0... scccessesesccesseensceseesesessessesesseesseessesssasssceeceseeees2 Hogen v. Valley Hospital (1983) 147 CalApp.3d 119.cceecesssscecsssessseeseesessecsseesseseeseeesseseeseeseeeseeses 1 Magnolia Square Homeowners Ass’n v. Safeco Ins. Co. (1990) 221 CalApp.3d 1049...eeseccsescescsscessecsscsssseeseesssseeesseeeeseeseeseeceseses 2 Sosinsky v. Grant (1992) 6 Cal.App.4th 1548oececcesssccsecscessesessesssseeseesseeesssessnssesesseseeesetses 2 Taliaferro v. County ofContra Costa (1960) 182 Cal.App.2d 587... cececssccesceseseesssccescesesseeessesseesseesseeeseesecssssesseesseees Il Tory v. Cochran (2004) U.S. Supreme Court Case No. 03-1488 ooo.eee eccceceeeesseeseeseeseesneeseees 3 ii Statutes California Evidence Code SASL ooo eeeccccccsssssssceseesssesssssecccenssesecssecssseecccesescaaeaseesecereesasesenesecsaseeacess 1 § SD ooo eccessssecessssssscecessceesstscecuvsssccasescsssssucsesseaauseceesseecencesscesssecesaeecs 1,2 § AS2(d) ooo eeeeccesceesssccessesseeseessecssssccsscssesssssessscsssessaacerevseeeeecsesesseessreenas 1,2 § 452i) oo. eecccceseccsssssscssesssccssscesecsccecsccsssssccseeesssneceeecestecseccesseecseeesseeeceneas 1 § 453 ooo. ceeccsssscecesesssssssecsseeessnsccccsecsccacesscsssesssecesseaceccecssensetacetecstasesensanss 1,2 § 459eeeccecccsssccccessssecssescsscssesscusenscsossessuscsssecsacaceeeressnseseesscesseceesesssenaes 1 § 459(a)... eeeccccsssccccssssseceseestessesscccsseeesccsssssscsssesseeaceseseseneeesesacesserensteseaeaes 1 Other Authorities California Rule of Court 8.252(a)(2).......cceesesscssscssssssssssccsssssessssecesneeteeeersnes 3 lil I. SUMMARY OF ARGUMENT Pursuant to Evidence Code §§ 452(d) and (h) and § 459, Petitioner Yelp Inc. (“Yelp”) respectfully requests that the Court take judicial notice of the court records that are submitted with this Request for Judicial Notice as Exhibits A through C to the Declaration ofRochelle L. Wilcox (“Wilcox Decl.”). As Yelp establishes below, this Court is authorized to take judicial notice of these court records, and it should do so because they are relevant to a key issue in this appeal—the standardsfor entering prior restraints, particularly as those standards are applied to a non-party who received no notice or opportunity to be heard in conjunction with the entry ofthat prior restraint.' If, THE COURT SHOULD TAKE JUDICIAL NOTICE OF THE ATTACHED COURT RECORDS AND ARTICLES California Evidence Code § 459(a) provides in part that “(t]he reviewing court shall take judicial notice of (1) each matter properly noticed bythetrial court and (2) each matterthat the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452.” California Evidence Code § 452(d) authorizes a court to take judicial notice of “[r]ecords of ' This Court may take judicial notice of the documents submitted with this Request, although no similar request was madeto the lower courts. Taliaferro v. County ofContra Costa (1960) 182 Cal.App.2d 587, 592; Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125(citing Holmesv. City ofOakland (1968) 260 Cal.App.2d 378, 384). (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” California Evidence Code § 453,in turn, providesthat “[t]he trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” Under Section 452(d), California courts regularly take judicial notice of the existence of court records (although they may not judicially notice the truth of the matters contained in those records). E.g., Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1561-62; County ofSan Diegov. Sierra (1990) 217 Cal-App.3d 126, 128 n.2; Magnolia Square HomeownersAss’nv. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056-57; Artucovich v. Arizmendiz (1967) 256 Cal.App.2d 130, 133-34; Goldstein v. Hoffman (1963) 213 Cal.App.2d 803, 814. Thus, this Court may take judicial notice of the existence of each documentin a court file, including Exhibits A through C, as requested here. Day v. Sharp (1975) 50 Cal.App.3d 904. Yelp asks the Court to take judicial notice of the following court records, attached as Exhibits A through C, which address the standards for entering prior restraints, particularly as those standardsare applied to a non-party whoreceived no notice or opportunity to be heard in conjunction with the entry of that prior restraint: Exhibit A: “AnswerBrief on the Merits” filed September 21, 2005, in the matter ofBalboa Island Village Inn, Inc. v. Lemen, Cal. Supreme Court Case No. $127904. Exhibit B: “Petitioners’ Brief on the Merits,” filed November12, 2004, in Tory v. Cochran, U.S. Supreme Court Case No. 03-1488. Exhibit C: “Petitioners’ Reply Brief on the Merits,”filed January 20, 2005, in Tory v. Cochran, U.S. Supreme Court Case No. 03-1488. As Yelp’s merits briefs address, prior restraints are heavily disfavored under federal and California law, and they maybeentered,if at all, only in the most extreme circumstances. The attached Briefs, which were submitted by Dean Chemerinsky in the primary United States and California Supreme Court cases to addressthis issue in recentyears, persuasively demonstrate whya prior restraint may not be entered against a non-party such as Yelp unless that non-party is given notice and an opportunity to be heard. They are highly relevant to the Court’s evaluation of this issue and Yelp therefore respectfully requests that the Court take judicial notice of the Briefs attached as Exhibits A through C. Pursuantto California Rule of Court 8.252(a)(2), Yelp advises the Court that Exhibits A through C werenot presentedto the trial court in this matter. I. CONCLUSION As addressed above, the documents submitted with this Request for Judicial Notice establish important facts for this Court’s consideration. Therefore, for the foregoing reasons, Yelp respectfully requests that the Court take judicial notice of the court records attached to this Request as Exhibits A through C. G Dated: July-t+9, 2017 DAVIS WRIGHT TREMAINE LLP Thomas urke ay By: Rochelle L. Wilcox Attorneys for Non-Party Appellant YELP INC. DECLARATION OF ROCHELLE L. WILCOX I, Rochelle L. Wilcox, declare: 1. I am an attorney admitted to practice before all the courts of the State of California and before this Court. I am a partner in the law firm Davis Wright Tremaine LLP (“DWT”) and I am one ofthe attorneys for Petitioner Yelp Inc. (“Yelp”). I have personal knowledge of the following facts and, if called uponto testify, I could and would competently testify to these facts. 2. Attached as Exhibit A is a true and correct copy of an “AnswerBrief on the Merits” filed September 21, 2005, in the matter of Balboa Island Village Inn, Inc. v. Lemen, California Supreme Court Case No. $127904. I received the attached Exhibit A from one ofthe attorneys of record in Balboa Island around the time that Exhibit A wasfiled. 3. Attached as Exhibit B is a true and correct copy of ‘Petitioners’ Brief on the Merits,” filed November12, 2004, in Tory v. Cochran, U.S. Supreme Court Case No. 03-1488. I received the attached Exhibit B approximately three months ago from one ofthe attorneys who filed an AmicusBrief in the Tory v. Cochran matter. 4. Attached as Exhibit C is a true and correct copy ofthe : ‘Petitioners’ Reply Brief on the Merits,” filed January 20, 2005, in Tory v. Cochran, U.S. Supreme Court Case No. 03-1488. I received the attached Exhibit C approximately three months ago from oneofthe attorneys who A G T H A G R E f a e a! P A P E . filed an AmicusBrief in the Tory v. Cochran matter. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Declaration wassigned on July 18, 2017 at Roseville, California. ( RochelleL. Wilcox Bee Ba! Pa Soe 3Bee [PROPOSED] ORDER This Court, having considered the Motion For Judicial Notice of Petitioner Yelp Inc., and good cause having been showntherefore, IT IS ORDEREDthat the Court takes judicial notice of the following documents: Exhibit A: “Answer Brief on the Merits,” filed September 21, 2005, in the matter ofBalboa Island Village Inn, Inc. v. Lemen, California Supreme Court Case No. $127904. Exhibit B: “Petitioners’ Brief on the Merits,” filed November 12, 2004, in Tory v. Cochran, U.S. Supreme Court Case No. 03-1488. Exhibit C: “Petitioners’ Reply Brief on the Merits,” filed January 20, 2005, in Tory v. Cochran, U.S. Supreme Court Case No.03-1488. Dated: By: Honorable Tani Gorre Cantil-Sakauye Chief Justice of the State of California EXHIBIT A --0001-- S127904 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA BALBOAISLAND VILLAGEINN,INC., Plaintiffand Respondent, Vv. ANNE LEMEN, Defendant and Appellant. On Reviewfrom the Court ofAppeal, Fourth Appellate District, Division Three, Case No. G031636 After an Appealfrom the Superior Court ofOrange County, Honorable Gerald G. Johnston, Case No. 01CC13243 ANSWERBRIEF ON THE MERITS ERWIN CHEMERINSKY D. MICHAEL BUSH chemerinsky@law.duke.edu Cal. Bar No. 101601 DUKE UNIVERSITY LAW SCHOOL dmichaelbush@sbcglobal.net SCIENCE DRIVE AND TOWERVIEW ROAD 17330 BROOKHURST ST., STE. 370 DURHAM, NORTH CAROLINA 27708 FOUNTAIN VALLEY, CA 92708 TEL: (919) 613-7173 TEL: 714-557-2009 GARY L. BOSTWICK,Cal. Bar No. 79000 gbostwick@sheppardmullin.com JEAN-PAUL JASSY,Cal Bar No. 205513 jjassy@sheppardmullin.com SHEPPARD MULLIN RICHTER & HAMPTONLLP 1901 AVENUE OF THE STARS, SUITE 1600 LOS ANGELES, CALIFORNIA 90067 TEL: 310-228-3700 // FAX: 310-228-3701 Attorneysfor Defendant and Appellant, ANNE LEMEN --0002-- TABLE OF CONTENTS Page TISSUES PRESENTED.........ccsesssssessssssessssssesenescesssesseccsesssvosescarscsectecaeessesnes l STATEMENTOF FACTS00.0... eecesssssssssssssscensessesscsesesscsssssessvesscesssesseceeessaas 1 SUMMARYOF ARGUMENT.........cscsssssssssescsesceescsesesevssssssussvscevececaceeaeaeesees 5 ARGUMENT..0.o. oo ceecceecesssessssessesesssescsesesescesessescecsesansssscscsussvecsacatsseseasesesanee 7 I. THE INJUNCTIONIN THIS CASE WAS A PRIOR RESTRAINT ON SPEECH OF PUBLIC CONCERN...........cccccecesees 7 A. Court Orders Permanently Enjoining Speech Are Prior ReStraint. 0... eeseseseesesesceeesceccesersseacescessesssssnesssesasscacecseraceeers 7 B. The Speech Was OfPublic Concern........c..ccccsssessecceesseeseseees 13 II. A COURT ORDER PERMANENTLY ENJOINING SPEECH IS NOT A PERMISSIBLE REMEDYIN A DEFAMATION CASE, PARTICULARLY WHEN THE MATTERIS OF PUBLIC CONCERN...eccsccssessssessessssesessescsecssesssssestatseseeceseecenseass 14 A. Permanentinjunctionsare not a permissible remedy in defamation cases under the First Amendmentto the United States Constitution, .0.........c.ccesescsssssssssssscscsssscsseceneeees 17 1. Historically, permanent injunctions have not been allowed as a remedy in defamation cases. ................0...- 17 2. Damagesare a sufficient remedyfor plaintiffs in Gefamation CASES. ......:.ccccesssesccesessesssssssessssssceterececesesees 21 3. Effective injunctions in defamation casesare inherently overbroad and inevitably put courts in - the role ofbeing perpetual censors determining whether speech Can OCCUL.............cccccsesesssesssssesssssseeeeaees 25 B. Injunctions Are Not Permissible As A Remedy Under The California Constitution............ sesecenessseceeaeessssessesstenseeesacees 30 --0003-- C. Allowing Injunctions As A Remedy In Defamation Cases Would Be A Radical Change In The Law With A Devastating Effect On Freedom Of Speech................cccceee 34 II. EVEN IF AN INJUNCTION IS EVER PERMISSIBLE IN A DEFAMATION ACTION, THE INJUNCTIONIN THIS CASE IS UNCONSTITUTIONAL........occccccecscceeseeeseeseeessceesecsesesees 37 A. TheInjunction Was Unconstitutionally Overbroad................. 37 B. The Injunction Is Impermissible Because It Was Imposed For Speech Protected By The First Amendment...............0000.. 4] IV. THE COURT OF APPEAL ERRED BY DENYING LEMEN ATTORNEYS’FEES...eecescesssesescesceseeccescescssesessseeceesesseecsseeseseass 44 CONCLUSIONJ... ccccesessceecssescssesesesesessssrsassassaeeeeesassesessssesessensesssessssessaees 46 CERTIFICATE OF COMPLIANCE..........cccccccsssssesssessesesseseeesstecsceessssssssnees 48 -ii- --0004-- . TABLE OF AUTHORITIES CASES Aguilar v. Avis Rent A Car System, 21 Cal. 4th 121 (1999)oooccesessecssssscessescseseseesesssoetseseseceesees passim Alberti v. Cruise, ; 383 F.2d 268 (4th Cir, 1967) ou... ecscsscssessesscescscseseseccsssessesesessesseseesnasaeas 36 Alexanderv. United States, 509 U.S. 544 (1993)... eesseesesssessessceccesseessessessesssessestestescesssssseraseeseeeecs 8,9 American Malting Co. v. Keitel, 209 F. 351 (2d Cir. 1913)ccescscscssesscssecscesescsesessesseseseesseceoserssescaeeees 36 Andersonv. Liberty Lobby, Inc., A477 U.S. 242 (1986)... ceccccsesessssesessescssseasecsessesesesessescssesessesensssecsussevenses 43 Avis Rent A Car System, Inc. v. Aguilar 529 U.S. 1138 (2000)...eeeeeeecesceecessseseeessesessensasscesessessesreseessrenessses 12 Balboa Island Village v. Lemen, 17 Cal. Rptr. 3d 352.eeeesecsceecsecsessesencesssesscseseseseeseesseesssessensens passim Balliet v. Cassidy, 104 F. 704 (C.C.D.Or. 1900)... ceesssesescesseeecectsersssseseeseessceensesseseeeseees 18 Bantam Books, Inc. v. Sullivan, . 372 U.S. 58 (1963)... eeeseseceecsccescscceeseseessnssssesessessseeseeneseesesseeesees 14,15 Bartnicki v. Vopper. 572 U.S. 514 (2001)....sesccsecsssssssccseescesecceecoessusssueceessssssaessaecsssscsnesssecessecs 13 Beck v. Railway Teamsters’ Protective Union, 77 N.W.13 (Mich. 1898) 0... .ccsscccesssssesscesseessssesessestesseseeseseesecescsacerens 37 In re Berry, 68 Cal. 2d 137 (1968)...eeesessssesscsssssceesessseosssssessesesssecessensesscansaceases 38 Blatty v. New York Times Co. A2 Cal. 3d 1033 (1986)... eesessssssesseecsscesseeseseecseesesensssseseseseceesteaceaeees 17 Boardoirport Commissioners v. Jewsfor Jesus, Inc., 482 U.S. 569 (1987)...seesessssssscssesssecscssssescenssesenseceseeseecesesesseceesesssves 38 Bose v. Consumers Union, 466 U.S. 485 (1984)...eceeccessscesessesessssetecssscesssssecsesessessenseeseeas 41, 42, 43 Brandreth v. Lance 8 Paige Ch. 24 (N.Y. Ch. 1839)......sscscsssssesseessscesscccssssssecssesessesueesseveeensn 19 -iii- --0005-- Branzburg v. Hayes, 408 US. 6651972)sseesceesescecsesaneeaeeaeeesercsenseesuceasaceneersesscesestensnertanenssesaes 46 CBS Inc. v. Davis, 510 U.S. 1315(1994)..ccscessssssssssssssesssssesssescccsssssecsssssesssesensvcsasessuesees 15, 25 Carroll v. President and Comm'rs ofPrincess Anne, 393 U.S. 175 (1968)... eeecsseesesceeceeessessessesescsssscceseesceseecsccesssesesenss 25,37 Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power 0., 171 F. 553 (C.C.M.D. Ala. 1909)... eeceecsesesessesseesessesscesseesseeesesesessaeee 20 Community for Creative Non-Violencev. Pierce, 814 F.2d 663 (D.C.Cir. 1987)... ceeeeesescseccssssessessesseeeeesseatessecessesessssaees 36 Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.1963) occeccscsccssescsscsssscsssssecccsecesssessusesacesseesssneccuses 36 Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967)...0..ccescsssccscesssesceccessssssssssssestenseeeseneesessssasssossessaesess 15 Dailey v. Superior Court, L12 Cal. 94 (1896) 00... ccsssscesessssscsesessssessssssssssssessseeseseesteessescessessneresees 30 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., AT2 U.S. 749 (1985)..cccsesscssesssssesssessssssssssssccssssssssossvecessecensuecenscessuseeesssnes 42 Family Planning Specialists Medical Group, Inc. v. Powers, 9'Cal. App. 4th 1561 (1995)... ceecessssssessssssssssessstesesseseseseecssvevseas 7, 44 Francis v. Flinn, 118 U.S. 385 (1886)...ccccscssscsssssssssssscssvecsssssccrssssecsesseeeesaveessecseseeense 6, 22, 23 Franklin v, Leland Stanford Gawersity 172 Cal. App. 3d 322 (1985)... cccsccsssssessssssssesssesseseessssssessessseeseessssacees 42 Gertz v. Welch, 418 U.S. 323 (1974)..cceecsccssssssssssssssesecsssusececsseesseccsssecesacersnsesssecesasesssensess 13 ' Gooding v. Wilson, A05 U.S. 518 (1972). .cescssessssssssesscsssscesssssecssnsecssssssecceusssesessasessucsasessssseeeen 38 Greenberg v. Burglass, - 229 So. 2d 83 (a. [969) ..ecccssssessssseesssessssscessssssssscsssotesssuccersesensscessneseeses 36 Hajek v. Bill Mowbray Motors, Inc., “647 S.W.2d 253 (Tex, 1983) ooscccscscsssessceesssssssssecsssseecsecssscecseesessesesssesessans 36 Hansbury v. Lee 311 U.S. 32 (1940)... ecceecseccsscsssssessecssecssseeessssscsssssssssesssecsnsessuecavecuesensenees 28 Hobartv. Ferebee, 692 N.W.2d 509, 513-16 (S.D. 2004) 0... ceccescsssseseseesseeceesseceeceeessssaseesssnes 36 -iv- --0006-- Houstonv. Hill, 482 U.S.481 (1987)...eeescecesesesseesessessescssscesesessscsusscstssecceesarseceesecsesavenenes 38 Howell v. Bee Publ'g Co., 158 N.W.358 (Neb. 1916) sessseeseeuescconsesssenteessssensesceescsesssecsuesassasecesensusess 19 Hurvitz v. Hoeffl 84 Cal.Adirt 1232 (2000) ....sssecssssesesssesssessescsseessccrsecsssesssecssscssecssseeves 42 Hustler Magazine v. Falwell, 485 U.S. 46 (1988)...cececssessesecsssseessssssesessessecssvecssscecesseassssscnscsssceseee 16 KingsleyBooks, Inc. v. Brown, D4 U.S. 436 (1957)... .eccesccccsssesescsscscesessssusscsecssssstsnecevesseesassassssseesscseceeses 35 Kwass v. Kers 81 S.E.2d 237 (W.V. 1954) .ececcccssssesssecsssstsscsssesssessessevesascesssessacsseceseees 36 Leeb v. Delong, 198 Cal. App. 3d 47 (1988)........cccccccsccsssssssscsssssssessssstesccssssceessssscssscsesseee 31 Life Ass'n of Am. v. Boogher, Ie Mo. wee 173 (1876).sssecceessecesssactecsnsecessecneseuceescssecsessessecestseenseectessacens ‘18 Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994)... eecessscessssssssssssssessssssssssssessesscsessssesceseseusseesecacs passim Marlin Fire Arms Co.v. Shields, 64.N.E. 163, 171 NLY. 384 (N.Y.237 Martin v. Wilks 490 U.S. 755 (1989)...csssssssecssssseccesesssesessssessssasessssseccssssessessessssassssseeseeseee 28 ' Masson v. New Yorker Magazine, SOT U.S. 496 (1991).eesescsssssssssscsessesscessssessesecsesserscassatsssussscsensee 42 Mescalero Apache Tribev. Allen, 469 P.2d710 (NM. 1970)........cccscssssscsscsssesssccscsssescesssseseasssssssscsccsssesece 36 Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees and Restaurant loyees ‘Int'l Union, 239 F.3d 172 (2d Cir. 2001) vo... ceccscsesscssscsevsseccssecceccerscccessscsseesscsecesens 36 ploybesWard & Co. v. United Retail, Wholesale & Dep't Store loye ONE2d46 (TI. 1948)....ceeccescscstssessssccsseececeeseesecssssecsussacsecssecsssceesseesees 36 Moore y. City Dry Cleaners & Laundry Inc., 41 So. 34865(Fla 1949)nee!seeeseteneesceeesssesseeeatestesasentssscsstesereceeees 36 NAACP vy. Button 371 U.S. 415 (1963)..ccscssssesssssssecsousesssssesssssssssesssssecsesssssesessssssssssavesssesasees 38 -V- --0007-- Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931)... ccescecsssesseesstesssescessesscessersesenseeseesssansevsaseneeaeaes passim Nebraska Press Ass'n vy. Stuart, 427 US. 539 (1976).......ccccssscsscecesessesssccssescesnceseessesseeessecenevscsssessenees passim New York Times Co.v. Sullivan, 376 U.S. 254 (1964)... ccecsceessesscessseessesseseessesseeseeseneerserees 16, 24, 42, 47 New York Times Co. v. United States, 403 ULS. 713 (197 LD). cccccsecessseestessessesseeseesssccasenesseeesrersaveneees 15, 26, 35 Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)... cescssccssssecsscstestcsncescecssesssenesseecseenseens 9, 10, 11, 15 Pennekamp v. Florida 328 U.S. 331 (1946)...cescsescsesscsessusesssessssssesesucccsesesssecerseseersecesssecens 6, 23, 24 Philadelphia Newspapers, Inc. v. Hepps, , 475 US. 767 (1986)peveeeetaeeeeeesesesPpseeseseessesseasessseaeesaecesseesestavssesusenscnsees 27 Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973).......ccccsscssssesesscescssessseceseeseessesneeserenstenecsassase 15, 35, 36 Press v. Fuchy Stores, 34 Cal. 3d 311 (Cal. 1983) ooo. cccessssssescessessessecoteeescessesseusensesesessoeescees 44 In re Providence JournalCo., 820 F.2d 1342 (Ast Cir. 1986)...eccccsscssesecseessceseeessensecesssseccaseetsnees 36 Prucha v. Weiss 197 A.2d 253 (MG. 1964) ..cescccsssssesccsssssssssssssccsesssssessssescssssssesssssveceensecses 36 Respublica v. Oswald, U.S. (1 Dall.) 319 (1788).........ccessesssecsssesnccstessesceecseecessesscssssssenesseeerees 22 Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742) ........cssscsssssssessesesssesseceesscsecsesssesesesseeeeeees 17 Robert E. Hicks Corp.v. Nat'l Salesmen’s Training Ass'n, » 19 F.2d 963 (7th Cir. 1927) oo... .ceecsscssesesetsseceetessecssscecctesscsssscsccececseacens 36 Schad v. Borough ofMt. Ephraim, A52 U.S. 61 (1981)... ccccecseseesseesseseesesscesesseeseeenesesesenstensvsassevseenereensess 38 Schmoldt v. Oakley, 390 P.2d 882 (Okla. 1964)...........cssseessssesessseesesrsseeceseeccesssesssseesseessserees 36 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)........cccscesssessecssssseestesssceseecseeseesasecseeensesssseresdeeeenee 27, 28 State ex rel. Liversey v. Judge ofCivil Dist. Court, 34 La. Ann. 741 (1882) coo..ccccecccssescccsessestessessssseceeeesseeessssauensssscaeneceersens 20 -Vi- --0008-- Tory v. Cochran, 25 S. Ct. 2108 (2005)... eseccscescsecessesesesesesesessenssevsssssssestessvscatscansees passim Universal Amusement Co. v. Vance 404 F. Supp. 33 (S.D. Tex. 1975)...ccsssssssssssssssessssssscsssseesessuescsssecessesesseees 10 Vance v. Universal AmusementCo., 445 U.S. 308 (1980)....c.cccscecsesecesecseessecseatsaesesesstsseesessssseesssseenes 10, 11, 14 Welton v. City of Los Angeles, 18 Cal. 3d 497 (19765.sesescessensseteessessesessceessseseessssssssacsuccssecessecssssesenacensees 38 Willing v. Mazzocone, 393 A.2d LISS (Pa. 1978)... cccssssssesescecssscccescsesessscsesssscsscecseceesece 19, 36 Wilson _v. Superior Court, 13 Cal. 3d 652 (1975) ...cecccsssssssssssssssssescssessssssecsssssssessssssesecossescesece 30, 31 CONSTITUTIONAL PROVISIONS California Constitution, Article I, § 2-scsssscssssssssesssssessssssssssessussseseeeee 30 United States Constitution, Amend. I........ccceceeseseececesccccesesessessseseees passim STATUTES AND RULES California Code of Civil Procedure § 1021.5 .....c.ecssssssessssesssssseeeees passim California Government Code § 12900 et Seq......cccccssecsscsesssscsecesseseseseseesenees 12 TREATISES 20 Thomas B. Howell, 4 Complete Collection ofState Trials T99 (1816)...eescsecessscecsssscssssssssesssecssnescsessssssecsusssssessstssecatcetscacarsvessussusese 18 43A C.I.S. Injunctions § 255 (2004) .....secscsccssssssssscsssessscorecstescscssscsseseseces 5,17 Michael Meyerson, The Neglected History of the Prior Restraint Doctrine, 34 Ind. L. Rev. 295, 308-311, 334330G001) sessseeesseeeeeaesenseseseues 5, 17,19 Rodney Smolla, Law ofDefamation, § 9:85 (2d ed. 2004)... 5, 17, 36 ETALRIESC950eeAsainstDefamationofPerson,9 -vii- --0009-- ISSUES PRESENTED 1. Whether a permanent injunction as a remedy ina defamation action violates the First Amendment. 2. Whether a permanentinjunctionviolates the First Amendment whenit is not narrowlytailored in its prohibition of all speech, in any place, at any time, about a matter of public concern, and whenit is imposed without a finding that there was actual malice. 3. Whether the Court ofAppeal erred in denying attorneys' fees when a party successfully vindicated the First Amendment by having an unconstitutional injunction, restricting speech on a matter of public concern, overturned. STATEMENT OF FACTS This case involves a long running conflict between a bar that served alcohol to young adults on a quaint island anda neighbor, Anne Lemen. There were newsarticles relating to the noise involving the Balboa Island Village Inn (“BIVY’) that go back at least to 1989, the year Lemen purchased herproperty just across a small alley from BIVI. Balboa Island Village Inn, Inc. v. Lemen, 17 Cal. Rptr. 3d 352, --0010-- 356 (2004) (“BIV?’).' Aric Toll purchased BIVI in 2000. Jd. Soon afterwards, he submitted an application to the City ofNewport Beach Planning Departmentfor an expansionofthe entertainment permit for BIVI, whichincluded addingpercussion.” Lemen was opposed. Shefelt BIVI wasloud enough, as she could not sleep due to the rowdy patrons leaving BIVI during the early morning hours. The Court of Appeal described the situation: “Departing patrons often are inebriated and boisterous. Noise, disturbances, and public urination are not uncommon.” BIVI, 17 Cal. Rptr. 3d at 356. Lemen had previously complained to the policeandcity officials. Jd. She unsuccessfully tried to sell her house. Jd. Lemenstarted a petition drive and eventually got the signatures ofapproximately 400 of the 1,100 residents ofBalboa Island. Jd.* ' See also Clerk’s Transcript (“CT”): Ex. 1 (Feb. 20, 1998 Orange County Register article), Ex. 2 (Apr. 17, 1989 Daily Pilot article); Reporter’s Transcript (“RT”) (Aug. 19, 2002) at 3:22-4:3. ? See CT: Ex. 9 (Apr. 6, 2002 Petition opposing use permit for additions to live entertainment), Ex. 14 (June 20, 2002 Report to Newport Beach Planning Comm’n); RT (Aug. 19, 2002) at 25:9-26:23; RT (Aug. 26, 2002) at 30:23-31:8. 3 See also RT (Aug. 19, 2002)at 6:5-10; RT (Aug. 20, 2002) at 76:12- 23; RT (Aug. 26, 2002) at 84:13-17. --0011-- Thus, the speech which was the basis for this action involved a clear matter ofpublic concern: those who signed thepetitions were in opposition to the expansion of the entertainment permit for BIVI. This wasan issue putinto the public domain by BIVI andthe city planners welcomedinput from the surrounding community.’ Given the problem Lemenhadin getting peopleto take her seriously, she took a series of videotapes and photographs ofwhat she felt was inappropriate conduct andviolations of various laws in order to document wrongdoing at BIVI. Jd. The videos provide compelling support for Lemen’s concerns about BIVI. See CT: Exs. 68 (A), (B), (C) (videos). BIVI sued Lemenfor nuisance, defamation, and interference with business, seeking only injunctiverelief. BIVI, 17 Cal. Rptr. 3d at 357. After a benchtrial, the trial court found in BIVI’s favor and issued a permanentinjunction prohibiting Lemen from (1) initiating contact with persons known by Lemen to be BIVI employees, (2) makingcertain identified defamatory statements about BIVI to third persons, and (3) filming (whether by video cameraorstill * As discussed below, sincethis was,in fact, a public issue, then the truth orfalsity ofthe statements made should not have been the subject of a lawsuit. --0012-- photography) within 25 feet of BIVI’s premises, unless on her own property, and except to document an immediate disturbance or damageto her property. Jd. The California Court ofAppeal reversed. Jd. at 355, 368. It declared: “Wehold an injunction absolutely enjoining defendant Anne Lemen from makingcertain statements adjudicated to be defamatory under commonlaw causesofaction for libel and slander constitutes a content-basedprior restraint on speech in violation of the First Amendmentto the United States Constitution and article I, section 2, subdivision (a) of the California Constitution.” Jd. at 355. Specifically, the Court ofAppeal stated that “the portions of the injunction prohibiting Lemen from makingthe identified defamatory statements and from initiating contact with Village Inn employees constitute impermissible priorrestraints on speech and are overly broad.” Jd. But, the Court ofAppeal upheld the portion of the myunction prohibiting Lemen from filming within 25 feet ofBIVI’s premises and also denied Lemen’s requestfor attorneys’ fees under CodeofCivil Procedure § 1021.5. Zd. --0013-- SUMMARY OF ARGUMENT Neverin the 214 year history of the First Amendmenthas the United States Supreme Court approved an injunction as a remedy in a defamation action. In its landmark ruling in Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), the Court held that a permanent injunctionis a priorrestraint; that prior restraints are allowed in only - the most limited and compelling circumstances; and that courts may not enjoin future speech even whenthey find that defamation has occurred. The Court ofAppeal properly overturned an injunction issued by the Superior Court as violating both the United States Constitution and the California Constitution. First, the Court ofAppeal properly ruled that a permanentinjunctionis a prior restraint and that such injunctions are not a permissible remedy in defamationactions. Centuries ofprecedent, dating back to English law before the existence of the United States, establish that equitablerelief is not available in defamation cases. See, e.g., Rodney Smolla, Law of Defamation, § 9:85 (2d ed. 2004); Michael Meyerson, The Neglected History ofthe Prior Restraint Doctrine, 34 Ind. L. Rev. 295, 308-311, 324-330 (2001); 43A C.J.S. Injunctions § 255 (2004); W.E. Shipley, 5- --0014-- Injunction as Remedy Against Defamation ofPerson, 47 A.L.R.2d 715 (1956). Indeed, throughout American history, the United States Supreme Court has held that damages, not injunctions, are the appropriate remedy in defamation actions. See, e.g., Pennekamp v. Florida, 328 U.S. 331, 346-471 (1946); Near, 283 USS.at 718-19; Francis v. Flinn, 118 U.S. 385, 389 (1886). Second, the Court ofAppeal properly held that even if injunctions are permissible, the injunction in this case is unconstitutionally overbroad. Earlier this year, in Tory v. Cochran, 125 S.Ct. 2108, 2111 (2005), the United States Supreme Court held that injunctions in defamation casesare prior restraints, which must be narrowly tailored if they are to exist at all. But, as the Court of Appeal concluded, the injunctionin this case is anything but narrowly tailored: it prohibits Lemen from saying anything about BIVIto anyone, anywhere in the world. Indeed,this injunction is even broader than the one overturned by the Court in Tory v. Cochran, which only enjoined speech in public forums. Finally, the Court ofAppeal erred in denying Lemena recovery of attorneys’ fees after it upheld her free speech claim and overturned the injunction issued by the Superior Court. California Code ofCivil --0015-- Procedure § 1021.5 permits a court to award attorney fees to a successfulparty in “any action which has resulted in the enforcement of an important right affecting the public interest.” The law is clear that free speech rights are included amongthose “recognized as ‘important rights[s] affecting the public interest.’” Family Planning Specialists Medical Group, Inc. v. Powers, 39 Cal. App. 4th 1561, 1568 (1995). ARGUMENT I. THE INJUNCTIONIN THIS CASE WASA PRIOR RESTRAINT ON SPEECH OF PUBLIC CONCERN A. Court Orders Permanently Enjoining Speech Are Prior Restraints. BIVI contendsthat a permanent injunction issuedafter a trial is not a priorrestraint. Pet. Br. at 12- 13. But the United States Supreme Court has clearly and unequivocally held that a court order permanently enjoining speechis a priorrestraint, even if it follows a judicial proceeding. Anne Lemen cannot speak about Balboa Island Village Inn without getting permission from a court. This is the very essence ofa priorrestraint. The Supreme Court has expressly declared that “permanent injunctions .., that actually forbid speech activities are classic --0016-- examplesofprior restraints” because they impose a “true restraint on future speech.” Alexander v. United States, 509 U.S. 544, 550 (1993); see also Id. at 572 (Kennedy,J., dissenting) (the prior restraint doctrine “encompasses injunctive systems which threaten or bar future speech based onsomepast infraction”). In Alexander, the Court discussed three prior decisions holding that permanent injunctions on speech are inconsistent with the First and Fourteenth Amendments to the United States Constitution. Jd. at 550. These cases clearly hold that a permanentinjunction on speech, such as the injunctionin this case, is a prior restraint. The seminal case concerning prior restraints is Nearv. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed from a permanent injunction issued after a case “came on for tal.” Jd. at 705-06. The injunction in that case “perpetually” prevented the defendants from publishing again because,in the precedingtrial, the lower court determined that the defendant’s newspaperwas“chiefly devoted to malicious, scandalous and defamatory articles.” Jd. at 706. As the Court in Alexander explained, “Near, therefore, involveda true restraint on future speech — a permanent injunction.” Alexander, 509 U.S. at 550. The Near --0017-- Court held that such an injunction on future speech, even ifpreceded by the publication of defamatory material, was unconstitutional. 283 USS.at 721. The Court in Alexanderalso discussed Organizationfor a Better Austin v. Keefe, 402 U.S. 415 (1971), in which a group of picketers and pamphleteers were enjoined from protesting a real estate developer’s business practices. Alexander, 509 U.S.at 550. Although the Court notedthat the injunction in Keefe was labeled “temporary” by thetrial court, it was treated as permanentsinceits label was “little more than a formality,”it had been in effect for years, it had been issued after an “adversary hearing,” andit “already had [a] marked impact on petitioners’ First Amendmentrights.” Keefe, 402 U.S. at 417-18 &n.1. The Court struck down the injunction in Keefe as “an impermissible restraint on First Amendmentrights.” Jd. at 418. In wordsthat are particularly apt for this case, the Court held that the “claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach ofthe First Amendment.” /d. at 418-419. The Court stressed that “[nJo prior decisions support the claim that the interest ofan individual in --0018-- being free from public criticism ofhis businesspractices in pamphlets or leaflets warrants use ofthe injunctive powerofa court.” Jd. In Vance v. Universal Amusement Co., 445 U.S. 308 (1980), - the third permanentinjunction case cited in Alexander, the Court invalidated a Texasstatute that authorized courts, upon a showingthat the defendant had shown someobscenefilms in the past, to issue an injunction of indefinite duration prohibiting the defendant from showing anyfilms in the future even if those films had not yet been found to be obscene. Vance, 445 U.S. at 311. The three-judge District Court in Vance, whose decision wasaffirmed by the Court, held that, as in Near, “the state ‘made the mistake ofprohibiting future conductafter a finding ofundesirable present conduct,’” and that such a “general prohibition would operate as a prior restraint on unnamed motion pictures” in violation of the First Amendment. Vance, 445 US. at 311-12 & n.3, 316-17 (quoting Universal AmusementCo.v. Vance, 404 F. Supp. 33, 44 (S.D. Tex. 1975)). Injunctions are treated as prior restraints because that is exactly whatthey are: a prohibition of future expression. As the Supreme Court noted, injunctions “carry greater risks of censorship and discriminatory application than do general ordinances.” Madsen v. -10- --0019-- Women’s Health Center, Inc., 512 U.S. 753, 764 (1994). Justice Scalia’s opinion in Madsen, which wasjoined by Justice Thomas and Justice Kennedy, explained that “an injunction against speechis the very prototype ofthe greatest threat to First Amendmentvalues, the priorrestraint.” Jd. at 797 (Scalia, J., concurring in judgmentin part and dissenting in part). Injunctions may be usedto “suppress the ideas in question rather than to achieve any other proper governmental aim.” Jd. at 792-93. Injunctions are “the productofindividual judges rather than of legislatures — and often ofjudges who have been chagrined by prior disobedience of their orders. Therightto free speech should notlightly be placed within the control of a single man or woman.” Jd. at 793. As Justice Scalia cautioned,“the injunction is a much more powerful weapon than a statute, and so should be subjected to greater safeguards.” Jd. The California Court ofAppeal correctly concludedthat a permanentinjunctionis a prior restraint even ifit followsa trial. Near, Keefe, and Vance establish that even when a permanent injunction followsa trial,it is still unquestionably a prior restraint on speech. This was most recently reaffirmed in Tory, where the United States Supreme Court described a permanent injunction issued after a -ll- --0020-- defamationtrial as a “prior restraint.” Tory, 125 S.Ct. at 2111. The permanent injunction in this case is also a priorrestraint because, by its very terms, it preventsfuture speech. This Court’s decision in Aguilar v. Avis Rent A Car System, 21 Cal. 4th 121 (1999), cert. denied, 529 U.S. 1138 (2000), is not to the contrary. In Aguilar, a plurality of this Court upheld an injunction issued underthe Fair Employment and Housing Act (FEHA) (Gov. C., § 12900, et seq.) enjoining the continuing use ofracial epithets in the workplace. Theplurality held that “a remedial injunction prohibiting the continueduse ofracial epithets in the workplace does not violate the right to freedom of speech if there has been a judicial determination that the use of such epithets will contribute to the | continuation of a hostile or abusive work environment and therefore will constitute employmentdiscrimination.” 21 Cal. 4th at 126. _ Although this Court found that the injunction was permissible, there is no doubt that the injunctionstill was a priorrestraint, albeit onethat was allowed. As explained below, the factors that made the injunction permissible in Aguilar — to protect a captive audience from offensive speech in the workplace — 21 Cal. 4th at 159-162 (Werdegar, J, concurring) — are not presentin this case. -12- --0021-- B. The Speech Was Of Public Concern The Supreme Court often has emphasized the importance of speech that is ofpublic concern. See, e.g., Bartnicki v. Vopper, 572 U.S. 514 (2001) (providing protection for broadcastofillegally intercepted conversation because it was ofpublic concern); Gertz v. Welch, 418 U.S. 323 (1974)(stressing the importance oflimiting defamationliability for matters of public concern). The dispute between Lemen and BIVI was very muchofpublic concern for Balboa Island. The problems surrounding BIVIaffected the entire community and repeatedly received public attention over a long period of time. Indeed, the noise related problems regarding BIVI had been in the newssince 1989.° BIVI madethis a matter ofpublic concern by seeking expansion and by applying for an entertainment permit.° This required action by a governmentbody, which as required by law, sought public comment. There were well-attended public meetings in front of the Planning Commission and a meetinglead by the > See note 1, supra. 6 See note 2, supra. -13- --0022-- California Department of Alcoholic Beverage Control. See RT (Aug. 26, 2002) at 4:20-5:16; 32:10-22. Moreover, Lemen obtained signedpetitions from approximately 400 of 1,100 residents, which is just over one-third of the residents. BIVI, 17 Cal. Rptr. 3d at 356.’ This, in itself, demonstrates that the matter was of intense public concem on BalboaIsland. Il. A COURT ORDER PERMANENTLY ENJOINING SPEECH IS NOT A PERMISSIBLE REMEDYIN A DEFAMATION CASE, PARTICULARLY WHEN THE MATTERIS OF PUBLIC CONCERN Prior restraints on speech constitute “the most serious and least tolerable infringement on First Amendmentrights.” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). Thus, the First Amendment“accordsgreater protection against prior restraints than it does against subsequent punishmentfor a particular speech.” Jd. at 589. There is a “deeply-seated American hostility to priorrestraints.” Id. The United States Supreme Court hasstressed that “‘faj/ny system ofprior restraints of expression comesto this Court bearing a heavy presumption againstits constitutional validity.’” Vance, 445 U.S.at 317 (emphasis in original, quoting Bantam Books, Inc. v. Sullivan, 7 See also note 3, supra -14- --0023-- 372 U.S. 58, 70 (1963)). The Court has often repeated, in many distinct contexts, its antipathy towards “systems” ofprior restraints on speech.® “It is because ofthe personal nature”ofthe right of free speech that the Court has “rejected all mannerofpriorrestraint on publication, despite strong argumentsthatif the material was unprotected the time of suppression was immaterial.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 149 (1967) (plurality opinion)(citation omitted). The strong presumption against priorrestraints is evidenced by the fact that the United States Supreme Court and this Court never 8 See, e.g., CBS Inc. v. Davis, 510 U.S. 13 15, 1317 (1994) (Blackmun, J., Circuit Justice) (finding temporary injunction on broadcast unconstitutional despite allegations that broadcast would be defamatory and cause economic harm); Nebraska Press Ass'n., 427 U.S.at 556 (applying prior restraint doctrine to reject gag order on participants in a criminal trial); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam opinion applying priorrestraint doctrineto strike down injunction on publication of confidential government documents, and,in separate opinions, “every memberofthe Court, tacitly or explicitly, accepted the Near and Keefe condemnationofpriorrestraints as presumptively unconstitutional,” Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 396 (1973) (Burger, C.J., dissenting)); Bantam Books, 372 U.S. at 70-71 (listing cases striking down priorrestraints and rejecting as “informal censorship” local commission's ability to list certain publications as “objectionable” and to threaten prosecutionfortheir sale); Near, 283 U.S. at 706, 722-23 (rejecting injunction on future publication of newspaper despite publisher's previous dissemination of defamatory material). See also Madsen, 512 U.S.at 798 (Scalia, J., concurring in judgmentin part and dissentingin part) (listing cases and observingthat the Court has “repeatedly struck down speech-restricting injunctions”). -15- --0024-- have upheld prior restraint as a permissible remedy in a defamation action.” The absence ofa single United States or California Supreme Court decision approving a prior restraint as a remedy in a defamation case reflects the historical condemnation ofinjunctions in such actions, the inherent adequacy ofmoney damages,andthe inevitable futility of crafting an injunction that is both effective and narrowly tailored. Moreover, injunctions especially should never be allowed whenthe matter is ofpublic concern because of the indisputable importance of social discussion about such topics. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (“debate on public issues should be uninhibited, robust, and wide-open”). Both under the United States Constitution and underthe California Constitution, these propositions are well established and the Court of Appeal decision should be affirmed.'° ° BIVI,inits brief, quotes repeatedly from a transcriptofthe oral argumentin the United States Supreme Court in Tory v. Cochran, 125 S.Ct. 2108 (2005). But questions from Justices at oral argumentare certainly not authority establishing any proposition. What BIVI fails to mention is that the Court in Tory v. Cochran vacated a California Court ofAppeal decision upholding a broad injunction of speech as a remedy in a defamation case. 10 Although BIVI sued for other causes ofaction in addition to defamation, this does not change the analysis. First, in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court was clear that the label for the cause of action does not affect a First Amendmentanalysis. A suit challenging -16- --0025-- A. Permanentinjunctionsare not a permissible remedy in defamation cases under the First Amendmentto the United States Constitution. 1. Historically, permanentinjunctions have not been allowed as a remedy in defamation cases. Thetraditional rule ofAnglo-American law is that equity has no jurisdiction to enjoin defamation. See Rodney Smolla, Law of Defamation § 9:85 (2d ed. 2004); Michael I. Meyerson, The Neglected History ofthe Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and Separation ofPowers, 34 Ind. L. Rev. 295, 308-311, 324-330 (2001); 43A C.J.S. Injunctions § 255 (2004); W.E. Shipley, Injunction as Remedy Against Defamation of Person, 47 A.L.R.2d 715, 715-16 (1956). The rule wasestablished in eighteenth-century England, well before the American Revolution. Its earliest statement is found in Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742), where Lord defamatory speech must meetthe same constitutional standards even if brought under another cause of action. Blatty v. New York Times Co., 42 Cal. 3d 1033, 1042 (1986) (constitutional protections apply to “all claims whose gravamenis the alleged injurious falsehood of a statement”). Second, the injunction in this case specifically focuses on defamatory speech and thus the Court ofAppeal properly focused on whether injunctions are a permissible remedy in defamation cases. -17- --0026-- Chancellor Hardwicke remarked in a case involving a newspaperthat printed commentary that was both libelous and a contemptof court: | _ Mr. Solicitor General has put it upon the right footing, that notwithstanding this shouldbea libel, yet, unless it is a contempt of the court, I have no cognizance ofit: For whether it is a libel against the public or private persons, the only method is to proceedat law. Three-quarters of a century later, Thomas Howell, barrister and editor of the State Trials series, tellingly explained the strong consensus that equity had no powerto restrain defamation: “I believe there is not to be found in the books any decision or any dictum, posterior to the days of the Star Chamber, from which such doctrine can be deduced,either directly or by inference or analogy.” 20 Thomas B. Howell, A Complete Collection ofState Trials 799 (1816). | Nineteenth and twentieth century American courts, with remarkable uniformity, adopted the traditional English rule. Shipley, supra, at 716-21. See, e.g., Life Ass’n ofAm. v. Boogher, 3 Mo. App. 173, 176, 179-80 (1876); Balliet v. Cassidy, 104 F. 704, 706 -18- --0027-- (C.C.D.Or. 1900); Howell v. Bee Publ’g Co., 158 N.W. 358, 359 (Neb. 1916); Willing v. Mazzocone, 393 A.2d 1155, 1157-58 (Pa. 1978); Meyerson, supra, at 324-330. Free speech concerns were prominent amongthe reasons given for their position. In the very first American case on the subject, New York’s Chancellor Walworth ‘began his opinion refusing to enjoin the publication ofa libelous pamphlet by saying: It is very evident that this court cannot assume jurisdiction of the case ... or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power ofpreventive justice which ... cannot safely be entrusted to any tribunal consistently with the principles of a free government. Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839). In 1882, the Louisiana Supreme Court issued an elaborate opinion refusing to enjoin a newspaperfrom printing libelous cartoons. After discussing the constitutional prohibition ofprior restraints, the court depictedthe traditional common law tuleas -19- --0028-- central to preventing a legal regime in which “with a subservient or corrupt judiciary, the press might be completely muzzled, andits just influence upon public opinion entirely paralyzed.” State ex rel. Liversey v. Judge ofCivil Dist. Court, 34 La. Ann. 741, 745 (1882). And in 1909, a United States Circuit Court interpreted the Alabamaconstitution as prohibiting equity from restraining defamation, saying: The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounterthe evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 F. 553, 556 (C.C.M.D.Ala. 1909). Thetraditional rule that equity does not enjoin defamation is reflected in the briefs submitted to the Supreme Court in Nearv. Minnesota, 283 U.S. 697 (1931). Near argued that “[t]he general rule -20- --0029-- is that equity will not under any circumstances enjoin defamation as such.” Appellant’s Brief, Near, 1930 WL 28681. In supporting this proposition, Near cited three treatises and discussed over twenty cases directly supporting his claim. Jd. The State, in arguingthat “[t]he court has powertorestrain by injunction publication ofdefamatory matter,” relied on just two far less apposite cases. Brief of Appellee, Near, 1931 WL 30640, at *10. The Court’s holding in Near wasin line with centuries of English and American decisions. The Court explained that the injunction of speech in Near — like the injunction issued in this case — was an “unusual, ifnot unique” imposition on the freedom of speech. Near, 283 U.S.at 707. 2. Damagesarea sufficient remedyforplaintiffs in defamation cases. Justice Scalia observed that “[pJunishing unlawful action by judicial abridgment of First Amendmentrightsis an interesting concept; perhaps Eighth Amendmentrights could be next. I know of no authority for the proposition thatrestriction of speech, rather than fines or imprisonment, should be the sanction for misconduct.” Madsen, 512 U.S. at 794 n.1 (Scalia, J., concurring in judgment in part and dissenting in part). Justice Scalia’s observation is based on a wealth of support in the annals ofjurisprudence, particularly in the -2]- --0030-- pages ofNear, where the Court announcedthat damages and other methods ofpunishing past speech — notrestraints on future speech — are the appropriate remedies in defamation cases. In Near, the Court drew a line between damagesas a permissible remedy for past speech and an impermissible system that proscribes future speech: “Public officers, whose character and conduct remain open to debate andfree discussion in the press, find their remedies for false accusations in actions underlibel laws providing for redress and punishment, and not in proceedingsto restrain the publication ofnewspapers and periodicals.” Near, 283 U.S. at 718-19. Courts long have recognized that damages,not injunctions, are the appropriate remedy in a defamation action. In the first days of the Republic, even before the adoption of the First Amendment, the court in Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (1788), explained that although “libelling [sic] is a great crime,” it is well-understood that “any attempt to fetter the press” is unacceptable. Jd. at 324-25. Even though the defendant’s “offence [sic] [was] great and persisted in,” the Court did not enjoin the defendant’s future speech. Id. at 328. Similarly, well over a century ago, in Francis v. Flinn, 118 U.S. 385 (1886), the Court stressed that damages, not injunctions, are the -22- --0031-- proper remedy in defamation actions. In expressing the general rule that equitablerelief is not permissible when there are remediesat law, the Court stated: “If the publications in the newspapersare false and injurious, he can prosecute the publishers for libel. If a court of equity can interfere and use its remedyofinjunction in such cases, it would draw to itself the greater part of the litigation belonging to courts of law.” Id. at 389. In other cases, too, the Supreme Court has recognized that damages, not injunctions, are the appropriate remedy in defamation cases. For example, inPennekampv. Florida, 328 U.S. 331 (1946), the Court reversed a judgment of contempt against a newspapereditor responsible for publishing editorials that purportedly were contemptuous ofjudges and the administration of criminal justice in pending cases. /d. at 350. The Supreme Court of Florida, upholding the lower court’s citation for contempt, explained that a newspaper may generally criticize a judge, but “‘may not publish scurrilous or libelouscriticisms of a presiding judge as such or his judgments for the purposeofdiscrediting the Court in the eyes of the public.” Jd. at 343 n.6. Nevertheless, the Court concluded that the contemptcitation must be reversed to encourage debate on public issues, and also -23- --0032-- because, “when the statements [about a judge] amount to defamation, a judge has such a remedy in damagesforlibel as do other public servants.” Id. at 348-49. Precludingpriorrestraints does not leave those defamed without remedy, or render the law powerless to deter defamation. The | Supreme Court has upheld, with crucial limitations, the ability of even public officials and public figures to recover damages in defamation cases. Sullivan, 376 U.S. at 283. The Sullivan Court stressed that damage awards, even against major metropolitan newspapers, are a potent weapon for the defamation plaintiff and noted that “t]he fear of damage awards ... may be markedly more inhibiting than the fear ofprosecution under a criminal statute.” Jd. at 277-78. Despite these cautionary observations aboutthe potential impact of damage awards, damages remain an available remedy in defamation cases if the First Amendment’s requirements are met. In this case, the injunction was issued despite the fact that no damages were awarded becausethe plaintiff sought none. Monetary damagesare the appropriate remedy in a defamation action. Injunctions, such as that issued by the Superior Court in this case, should not be permitted. --0033-- 3. Effective injunctions in defamation cases are inherently overbroad andinevitably put courts in the role of being perpetual censors determining whether speech can occur. Injunctions have not been, and should not be permitted in defamation cases for another reason: it is impossible to formulate an effective injunction that would not be extremely overbroad andthat would not place the court in the role ofthe censor, continually deciding whatspeechis allowed and whatis prohibited. Any effective injunction will be overbroad, and any Jimited injunction will be ineffective. Prior restraints, such as injunctions, are a “most extraordinary remed[y]’”to be used “only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive means.” CBS, 510 U.S. at 1317 (Blackmun,J., Circuit Justice). There can be no constitutionaljustification for such an extreme remedy unless it can be properly tailored and would actually serve its purpose. An injunction “issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.” Carroll v. President and Comm’rs ofPrincess Anne, 393 U.S. 175, 183 (1968); -25- --0034-- see also Tory, 125 S.Ct. at 2111. Moreover, the United States Supreme Court has acknowledged thatit “must also assess the probable efficacy of[a] prior restraint ofpublication as a workable method,” and “cannot ignore the reality of the problems ofmanaging” such orders. Nebraska Press, 427 U.S. at 565. As the axiom goes, “a court of equity will not do a useless thing.” New York Times, 403 U.S. at 744 (Marshall, J., concurring). In defamation cases, the injunction musteither be limited to the exact communication already found to be defamatory, or reach more broadly and restrain speech that no jury has ever determined to be libelous. Mostegregiously, as in the present case, the injunction can go so far as to prevent any future speech aboutthe plaintiff. An injunction that is limited to preventing repetition ofthe specific statements already found to be defamatory is useless because a defendant can avoidits restrictions by making the same point using different words without violating the court’s order. Moreover, even if the injunction is limited to particular statements already found false, defamatory, and uttered with the requisite mental state, a prospective prohibition on the same comments cannot guarantee satisfaction of the elements of defamation -26- --0035-- at every point in the future. A statement that was once false may becometrue later in time. Likewise, even ifa defendant in a defamation action once acted with the requisite degree of culpability, he or she may havea different mental state later. Defamatory statements regarding matters ofpublic concern are outside the scope ofthe First Amendmentonly whentheplaintiff— even if he or she is a private figure — can show that the speechat issue is false and also show fault by the defendant. Philadelphia Newspapers,Inc. v. Hepps, 475 U.S. 767, 777-78 (1986). Permitting permanent injunctiverelief in a defamation case absolves the defamation plaintiff of his or her burden to demonstrate falsity and culpability each time a purportedly defamatory statement is made. Thus, unlike injunctions on particular obscene motion pictures, enjoming “defamatory” speech will inherently reach too far and be overbroad because “[i]t is always difficult to know in advance whatan individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). An injunction that reaches more broadly than the exact words already held to be libelous is overbroad for the very reasonthat it -27- --0036-- restrains communication before a jury determination of whetherit is or is not protected by the First Amendment. Becauseit delays communication that may be non-defamatory and protected by the First Amendment, it is the essence of a prior restraint. Just as it is “always difficult to know in advance what an individual will say,” Southeastern Promotions, 420 U.S.at 559,it is also difficult to know in advance whowill speak. Any injunction designedto restrict speech effectively must encompassothers besides the defamation defendant. But that inevitably involves stripping personsnotbefore the court of their First Amendmentrights without sufficient due process. See Hansbury v. Lee, 311 U.S. 32, 40 (1940) (“(Ojne is not bound by a judgmentinpersonam in litigation in which heis not designated as a party or to which he has not been | made a party by service ofprocess”); Martin v. Wilks, 490 U.S. 755, 761 (1989) (non-parties cannot be bound by judgments). On the other hand, even the most over-reaching injunction on defamatory statements will also be under-inclusive, and therefore ineffective, since a third party, completely unaffiliated with the defendant and not bound by the injunction, can — at his financial peril — repeat the same statements already determined to be defamatory. See Nebraska Press, -28- --0037-- 427 U.S.at 609 n.36 (Brennan , J., concurring) (lamenting th e futility of under-inclusive injunctions on speech). In addition, an injunction that reaches more broadly than the exact communication already held to be defamatory has the effect of forcing a defendantto go to co urt any time he or she wants t o say anything aboutthe plaintiff an d prove to the court that the in tended statement is not defamatory. T his is exactly the nature of the injunction in this case: it prohi bits Lemen from saying anyth ing about Balboa Village Inn until and un less she goes back to the court and obtain the judge’s permission t o speak. That brandofjudicial clearance is whatthe United S tates Supreme Court in Nearca lled “the essence of censorship.” 283 U S.at 713. In Near, the Court emphaticall y rej ected the notion that even one whohadpreviously been f oundliable for printing defama tory matter could be forced to prov e to a judge that future stateme nts “are true and are published with go od motives and for justifiable e nds.” Near, 283 U.S.at 713. The in junction in this case, as in any defamation case,is precisely th at type of censorship,as those enjoined will not be able to say anythin g about the subject withoutfirs t getting permission from a judge. Such restrictions inevitably put the c ourt in -29- --0038-- the classic role ofthe censor andare intolerable underthe First Amendment. B. Injunctions Are Not Permissible As A Remedy Under The California Constitution. Article I, Section 2 of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse ofthis right. A law may not restrain or abridge liberty of speech or press.” In Dailey v. Superior Court, 112 Cal. 94 (1 896), this Court stated that this languageis “terse and vigorousand soplain that construction is not needed.” The Court declared that the “right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible for an abuseofthat right.” This Court has been explicit that the protection of speech under the California Constitution is broader than the safeguards provided by the First Amendment. For example, in Wilson v. Superior Court, 13 Cal.3d 652 (1975), this Court explained that a “protective provision more ... inclusive than the First Amendmentis contained in ourstate constitutional guarantee ofthe right of free speech and press.” Wilsonis particularly apposite to this case because this Court expressly rejected an injunction as a remedy for defamation. The -30- --0039-- ua i e issue was whether a court could enjoin the publication ofallegedly libelous statements by a candidate forpolitical office about his opponent. This Court explained: “The concept that a statement on a public issue may be suppressed becauseit is believed by a court to be untrueis entirely inconsistent with constitutional guarantees andraises the spectre of censorship in a most pernicious form.” Jd. at 656. The Court ofAppeal in this case properly recognized the importance of Wilson: “[T]he Supreme Court rejected the argumentthatlibelous statements do not enjoy constitutionalprotection thereby demonstrating a judicial determination that statements are defamatory does not in itselfmean an injunction prohibiting the defamatory statements would be constitutional.” BIVI, 17 Cal. Rptr. 3d at 365. In other cases as well, California courts have rejected injunctions as a remedy in defamation actions. For example, in Leeb v. Delong, 198 Cal. App. 3d 47, 58 (1988), the court stated that the California Constitution “clearly [does] not permit the prior restraint of the private publication oflibelous material.” The court explained that “if there is a remedy forlibel in a particular setting, it is an action for damagesafter publication.” Jd. Thus, the Court ofAppeal correctly -31- --0040-- held that the injunction in this case independently violates the California Constitution. This Court’s decision in Aguilar is not to the contrary. This Court, without a majority opinion, upheld an injunction on speech that created a hostile environmentin violation of California’s employment discrimination laws. Justice Werdegar, the fourth vote for the majority, stressed the difference between the workplace, the focus in Aguilar, and the public sidewalk, the focus of this case: “The workplace is different from sidewalks and parks, however; workers are not so free to leave to avoid undesired messages. When employees are forced to endureracially harassing speech on thejob,it is arguable that ‘substantial privacy interests are being invaded in an essentially intolerable manner.’” 21 Cal. 4th at 169 (Werdegar,J., concurring). Justice Werdegar described “the several factors coalescing in this case--speech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speaker--support the conclusion that the injunction, if sufficiently narrowed on remandto apply to the workplace only, will pass constitutional muster.” Jd. at 166. -32- --0041-- The Court ofAppeal engagedin a caseful analysis ofAguilar and concluded: “Webelieve the plurality opinion and concurring opinion in Aguilar should be read to support the principle that a content-based injunction restraining speech is constitutionally valid if the speech has been adjudicated to violate a specific statutory scheme expressing a compelling state interest justifying a prior restraint on speech, or when necessary to protect a right equal in stature to the right of free speech secured by the First Amendmentto the United States Constitution.” BIVI, 17 Cal. Rptr. 3d at 363. The Court of Appeal then properly concluded that Aguilar did notjustify an injunction in this case: no statute was violated andthereis no right involved equal in status to the First Amendment. Moreover, the Court ofAppeal noted that there is a long history in this state and across the country ofnot allowing injunctions as a remedy in defamation cases. BIVI, 17 Cal. Rptr. 3d at 365-366. Therefore, under the California Constitution, like under the United States Constitution, the injunction issued by the Superior Court is impermissible. -33- --0042-- C. Allowing Injunctions As A Remedy In Defamation Cases Would Be A Radical Change In The Law With A Devastating Effect On Freedom Of Speech. In 1931, the United States Supreme Court noted the significant fact that, “for approximately one hundred andfifty years there has been almost an entire absence of attempts to impose previous restraints on publication relating to the malfeasance ofpublic officers;” thus reaffirming the “deep-seated conviction that such restraints would violate constitutional right.” Near, 283 U.S.at 718. The same certainly holds true today. Neither the United States Supreme Court nor this Court has ever, in all ofAmerican or California history, even once uphelda priorrestraint in the defamation context. The United States Supreme Court has sanctionedinjunctions on speech only in the most “exceptional cases,” such as those involving obscenity, incitements to violence and “the publication of the sailing dates oftransports or the numberandlocation of troops.” Near, 283 U.S. at 716. See also Nebraska Press, 427 U.S.at 590-91 (Brennan, J., concurring) (explaining that the Court has limited injunctions on speech only to these “three such possible exceptional circumstances”). -34- --0043-- The few scenarios where the United States Supreme Court has even contemplated prior restraints are readily distinguishable from any case involving defamation. For example, in Kingsley Books,Inc. v. Brown, 354 U.S. 436 (1957), the Court explained that injunctions on materials already deemed obsceneare “glaringly different” from the injunction of a publication “becauseits past issues had been found offensive.” Jd. at 445. Reiterating Near’s admonition thatthe latter 399type of injunctionsare the “‘essence of censorship,’” the Kingsley Court “studiously withh[eld] restraint upon matters not already published and not yet found offensive.” Id. Similarly, even Near’s allowancefor injunctions on national security grounds wasgreatly circumscribed in the “Pentagon Papers” case, New York Times v. United States, 403 U.S. 713 (1971), where the Court emphasized that the governmentfailed to meet the very heavy burden neededto sustain a court order enjoining speech. Petitioner places great reliance on the Pittsburgh Press case. Pet. Br. at 10-12. In Pittsburgh Press, the Court upheld a “narrowly drawn”rule prohibiting the “placement in sex-designated columnsofadvertisements for nonexempt job opportunities.” 413 US. 376, at 391. The Court invoked Near and “reaffirm[ed] -35- --0044-- unequivocally the protection afforded to editorial judgmentandto the free expression of views ... however controversial.” /d. Furthermore, in Pittsburgh Press, the Court stressed that the Commission’s order preventing sex-based wantads couldnot be enforced by contempt sanctions because “[t]he Commission is without powerto punish summarily for contempt.” Jd. at390n.14. That is very different from a court order enjoining speech, such as in this case, where any violations are punishable by contempt. Consistent with the presumptive invalidity of all systems of prior restraints, mostjurisdictions adhere to the maxim that“equity will not enjoin a libel.”!! Smolla, supra, at §9.85 at 9-56. This trend Nl See, e.g., Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees and Restaurant Employees Int'l Union, 239 F.3d 172, 177-78 (2d Cir. 2001); Communityfor Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir. 1987); In re Providence Journal Co., 820 F.2d 1342, 1345-46 (1st Cir. 1986); Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963); American Malting Co. v. Keitel, 209 F. 351, 354-56 (2d Cir. 1913); Robert E. Hicks Corp. v. Nat'l Salesmen's Training Ass'n, 19 F.2d 963, 964 (7th Cir. 1927); Hobart v. Ferebee, 692 N.W.2d 509, 513-16 (S.D. 2004); Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983); Willing v. Mazzocone, 393 A.2d 1155, 1157-58 (Pa. 1978); Greenberg v. Burglass, 229 So.2d 83, 86-89 (La. 1969); Mescalero Apache Tribe v. Allen, 469 P.2d 710, 711 (N.M. 1970); Schmoldt v. Oakley, 390 P.2d 882, 884-87 (Okla. 1964); Prucha v. Weiss, 197 A.2d 253, 256 (Md. 1964); Kwass v. Kersey, 81 S.E.2d 237, 243-46 (W.V. 1954); Moore v. City Dry Cleaners & Laundry , Inc., 41 So.2d 865, 873 (Fla. 1949); Montgomery Ward & Co.v. United Retail, Wholesale & Dep't Store Employees, 79 N.E.2d 46, 48-50 -36- --0045-- must be followed in California with a decisive rejection ofpermanent injunctionsin the defamation context, or else “judgesat all levels” will be interjected “into censorship roles that are simply inappropriate and impermissible under the First Amendment.” Nebraska Press, 427 U.S. at 607 (Brennan,J., concurring). Such a result would be an unacceptable and unprecedented abridgmentofthe First Amendment and the California Constitution. HY. EVEN IF AN INJUNCTION Is EVER PERMISSIBLE IN A DEFAMATIONACTION, THE INJUNCTIONIN THIS CASE IS UNCONSTITUTIONAL A. The Injunction Was Unconstitutionally Overbroad In Tory v. Cochran, the United States Supreme Court recently reaffirmed that injunctions, evenifpermitted in defamation actions, must be narrowlytailored. 125 S.Ct. at 2511 This is consistent with a long line of authority holding that any injunctionrestricting speech must “‘burden no more speech than necessary’ to accomplish its objective.” Madsen, 512 U.S. at 765. Put another way, an injunction on speech “must be couched in the narrowest terms that will accomplish the pin-pointed objective” of the injunction. Carroll, 393 (Ill. 1948); Marlin Fire Arms Co. v. Shields, 64 N.E. 163, 165-67, 171 N.Y. 384, 391-96 (N.Y. 1902); Beck v. Railway Teamsters’ Protective Union, 77 N.W.13, 24 (Mich. 1898). -37- --0046-- USS. at 183. Indeed, the United States Supreme Court and this Court have been clear that any restriction of speech is unconstitutionalif it regulates substantially more speech than the Constitution allows to be regulated.’ The injunction in this case fails this requirement because it was not narrowly tailored. It prevents Lemen from making statements to anyone, any place in the world, at any time about BIVI. The Court of Appeal cameto exactly this conclusion and declared: Even if paragraph 4.B of the judgment were otherwise constitutionally valid, it is too broad. Paragraph 4.B bears no resemblance 12 _ See, e.g., Tory, 125 S. Ct. at 2111; Houston v. Hill, 482 U.S. 481 (1987) (declaring unconstitutional an overbroad provision makingit unlawful to interrupt police officers in the course oftheir duties); Board of Airport Commissioners v. Jewsfor Jesus, Inc., 482 U.S. 569, 574-75 (1987) (invalidating regulations prohibiting all “FirstAmendmentactivities” at airports in Los Angeles); Schad v. Borough ofMt. Ephraim, 452 U.S. 61 (1981) (striking as overbroad an ordinance prohibitingall live entertainment); Gooding v. Wilson, 405 U.S. 518 (1972) (invalidating a fighting words statute); NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity”); Welton v. City ofLos Angeles, 18 Cal. 3d 497, 507-08 (1976) (holding that an injunction, which prohibited exercise of “First Amendmentrights onall streets, sidewalks, and parkwaysin all residential areas,” was overbroad); In re Berry, 68 Cal. 2d 137, 152 (1968) (finding injunction “unconstitutionally overbroad in that it improperly restrict[ed] the exercise of First Amendment freedoms’”’). -38- --0047-- G e . S U R E S h e s to time, place, and mannerrestrictions, but enjoins Lemen from making the identified statements--based solely on their content--to anyone, anywhere, at any time, in any context. Paragraph 4.B is not limited in scope to protect a captive audience: Paragraph 4.B prohibits Lemen from making the statements to family, to friends, within her own home, or 1,000 miles away. Paragraph 4.B is not limited to statements made by Lemen to Village Inn patrons. By prohibiting Lemen from making the identified statements to third persons, paragraph 4.B unlawfully infringes on Lemen’s right to contact government officials and to petition for redress of grievances. BIVI, 17 Cal. Rptr. 3d at 367. Indeedthis injunction is even broader than that found unconstitutional in Tory v. Cochran. The injunction in that case prohibited the defendants in a defamation case from saying anything -39- --0048-- aboutthe plaintiff in any public forum. 125 S.Ct. at 2510 (describing the injunction). But the injunction issued by the Superior Court in this case prevents Lemen from saying anything about BIVI any place, any time, forever. Likewise, the portion of the injunction prohibiting Lemen from having contact with BIVI’s employeesis unconstitutionally overbroad. Again, the Court of Appeal came to exactly this conclusion: Paragraph 4.A_ suffers from similar constitutional infirmities. Paragraph 4A is a prior restraint on speech becauseit prohibits Lemen from initiating any contact with persons she knows to be Village Inn employees. Even if paragraph 4.A were a lawful prior restraint, it is too broad to be upheld. The Village Inn has a legitimate interest in making sure its employeesare not accosted by Lemen on their way toand from work. But paragraph 4.A, as is paragraph 4.B, 1s not ‘narrowly drawn to achieve that -40- --0049-- end.’ Paragraph 4.A. includes no time, place, and mannerrestrictions but prohibits Lemen from initiating any type of contact with a known Village Inn employee anywhere, at any time, regarding any subject. Paragraph 4.A thus sweeps more broadly than necessary and restrains Lemen from exercising her constitutional right of free speech. BIVI, 17 Cal. Rptr. 3d at 367. Thus, the injunction in this case clearly violates the long-standing, fundamental requirement, reaffirmedjust this year in Tory v. Cochran,that restrictions on speech be narrowlytailored. B. The Injunction Is Impermissible Because It Was Imposed For Speech Protected By The First Amendment. In Bose v. Consumers Union, 466 U.S.485, 504, 506 n.25 (1984), the 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 -4]- --0050-- intrusion on the field of free expression[.]” Jd. at 508.'° Consistent with this fundamental precept, the Court held that “[t]he requirement of independent appellate review reiterated in New York Times Co.v. Sullivan, is a rule of federal constitutional law. ... It reflects a deeply held conviction that judges — and particularly Membersofthis Court — must exercise such review in order to preserve the preciousliberties established and ordained by the Constitution.” /d. at 510-11. The speechin this case involved a matter of public concern:the operation ofa business which raised importantissues for the community and the request by the business of a permit from the government. Asa result, the plaintiffmust prove, with clear and convincing evidence,that the allegedly defamatory statements — which gaverise to the injunction — were published with actual malice, Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985), meaning “with ‘knowledge that [they were] false or with 393reckless disregard ofwhether [they were] false or not,’” Massonv. New Yorker Magazine, 501 U.S. 496, 510 (1991) (citations omitted); 3 See also Franklin v. Leland StanfordUniv., 172 Cal. App. 3d 322, 330-31 (1985) (“[r]leviewing courts have repeatedly observed the obligation to independently evaluate the record in resolving First Amendment issues”); Hurvitz v. Hoefflin, 84 Cal. App. 4" 1232, 1242 (2000). -42- --0051-- Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 255-57 (1986) (“clear and convincing” evidenceis required to show actual malice). The actual malice standard focusessolely on the defendant’s subjective state ofmind “at the time ofpublication.” 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 judgmentthat is not supported by clear and convincing proof of ‘actual malice.’” Bose, 466 U.S. at 511. Contrary to the conclusionsofthetrial court, the evidenceis 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 offalsity or with reckless disregard fortheir truth or falsity. Indeed, there was no finding of actual maliceat all in this case. There was no showingthat any statement wasuttered with knowledge offalsity or with reckless disregardofthe truth.”* ‘4 Quite the contrary, the testimonyattrial explained the basis for her statements. For example, as for the statement that BIVI can be open to 6:00 a.m., former owner Lance Wagnertestified that the restaurant portion of BIVI can be open unlimited hours, which is exactly what Anne Lemen claimed. RT (Aug. 20, 2002) at 134:14-20. As for the claim that illegal drugs were distributed on BIVI’s premises andthat prostitution was -43- --0052-- IV. THE COURT OF APPEAL ERRED BY DENYING LEMEN ATTORNEYS’ FEES. California Code of Civil Procedure § 1021.5 permits the court to award attorney fees to a successful party in “any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class ofpersons, (b) the necessity and financial burden ofprivate enforcement... are such as to make the award appropriate, and (c) such fees should not in the interest ofjustice be paid outofthe recovery, if any.” The law isclear that free speech rights are included among those “recognized as ‘important rights[s] affecting the public interest.” Family Planning Specialists Medical Group, Inc.v. Powers 39 Cal. App. 4th 1561, 1568 (1995). This Court has stressed that attorneys’ fees are available when a party’s conduct provides the public with substantial benefits. Press v. Lucky Stores, 34 Cal. 3d 311, 321 (Cal. 1983), is on point, as this solicited, other neighbors, such as Karen and David Seeber had similar complaints. Deposition ofDavid Seeber (“Seeber Depo.”), 5:17-6:7. As for the claim that tainted food was served, Lementestified that in the past she heard that one person got sick from the food. RT (Aug. 19, 2002) 55:12-56:10. The key point, of course, is that for none ofthe statements wasactual malice proven with clear and convincing evidence. --0053-- Court declared: “Moreover, even if the impactofplaintiffs’ lawsuit werelimited to the access gainedat the Santa Monicastore, the litigation would still have benefited a ‘large class of people.’ In addition to the approximately 3,000 persons whosignedplaintiffs’ petitions, countless others (i.e., nonsigning store patrons) were educated about a contemporary issue of public importance. In addition, while gathering signatures at the Santa Monicastore plaintiffs were able to enlist additional volunteers and acceptfinancial contributions. For these reasons,plaintiffs’ litigation satisfies the ‘substantial benefit’ requirementof section 1021.5.” Likewise, here, Lemen’s actions provided substantial benefit, addressing concerns expressedin a petition signed by over one-third ofBalboa Island’s residents. BIVI, 17 Cal. Rptr. 3d at 356.’> As explained above, her speech involved a matter ofpublic concern and the vindication of freedom of expression is a matter serving the public interest, thus warranting attorneys fees under Code of Civil Procedure § 1021.5. See also note 3, supra. -45- --0054-- CONCLUSION The United States Supreme Court has emphasized that the First Amendmentprotects the rights of the “lonely pamphleteer who uses carbon paper or a mimeographjust as muchasofthelarge metropolitan publisher who utilizes the latest photocomposition methods.” Branzburg v. Hayes, 408 US. 665, 704 (1972). Correspondingly,affirming the permanent injunction imposed by the Superior Court in this case on a lonely picketer would have profound consequencesforall speakers, ranging from the — pamphleteer to the largest newspapersandtelevision stations. Abandoning this Court’s historical disapproval of injunctive relief in defamation actions would mean that every court, in every successful defamation case, could enjoin all future speech by the defendant, orits agents, about the plaintiff in any forum. The richness of the English language and the myriad ways of expressing any thought meansthat the only effective way to enjoin defamation would be, as here, to keep the defendant from everuttering another word aboutthe plaintiff. Such a result runs contrary to the fundamental precepts of the First Amendment, especially where the enjoined speechrelates to a public issue. -46- --0055-- The permanentinjunction in this case is a broadpriorrestraint on speech about a matter ofpublic concer,striking at the very heart of the First Amendment’s commitmentthat “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. _y, Sullivan, 376 US. at 270. This Court should affirm the decision of the California Court ofAppeal and should reaffirm centuries of jurisprudence: a permanent injunction of speechis not a permissible remedy in a defamation case. September 21, 2005 Respectfully submitted, ERWIN CHEMERINSKY DUKE UNIVERSITY LAW SCHOOL GARYL. BOSTWICK. JEAN-PAUL JASSY SHEPPARD MULLIN RICHTER & HAMPTON LLP D. MICHAEL BUSH LAW OFFICES OF D. MICHAEL BUSH Attorneysfor Defendant/Appellant ANNE LEMEN W02-LA:;1 JPI1\70875648.1 -47- --0056-- H R N R E A R N E oe r P - S I O CERTIFICATE OF COMPLIANCE The foregoing brief complies with the requirements of California Rule of Court 14. The brief is proportionately spaced in Times New Roman, 14-point type, and the footnotes are proportionately spaced in Times New Roman, 13-pointtype. According to the word processing system used to prepare the brief, the word count ofthe brief is 9,498, including footnotes, but not including the cover page, table of contents, table of citations, this certificate and the certificate of service required for consideration ofthe brief. DATED: September 21, 2005 Respectfully submitted, SHEPPARD MULLIN RICHTER & HAMPTON LLP Att@afcys for Dgfendant and Appellant ANNE LEMEN -48- --0057-- PROOF OF SERVICE I am employed in the County ofLos Angeles; I am over the age of eighteen years and not a party to the within entitled action; my business address is 1901 Avenue ofthe Stars, Suite 1600, Los Angeles, California 90067-6017. On September21, 2005, I served the following document(s) described as ANSWER BRIEF ON THE MERITSontheinterested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: See Attached Service List BY MAIL: I am “readily familiar’ with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed mvalid ifpostal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY OVERNIGHT DELIVERY:I served such envelope or packageto be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier. STATE: I declare under penalty ofperjury underthe laws of the State of California that the foregoingis true andcorrect. Executed on September 21, 2005, at Los Angeles, California. C)Ga DeEtra Crudup -49- --0058-- SERVICE LIST J. Scott Russo, Esq. Dubia, Erickson, Tenerelli & Russo, LLP 2 Park Plaza, Suite 300 Irvine, California 92614 Attorneyfor Plaintiffand Respondent - Balboa Island Village Inn, Inc. D. Michael Bush, Esq. 17330 Brookhurst St., Suite 370 Fountain Valley, CA 92708 Co-counselfor Defendant andAppellant Anne Lemen Erwin Chemerinsky Duke University Law School Science Drive and Towerview Road Durham, North Carolina 27708 Co-counselfor Defendant andAppellant Anne Lemen -50- --0059-- PROOF OF SERVICE I am employed in the County of Los Angeles; I am over the age of eighteen years and not a party to the within entitled action; my business address is 1901 Avenueofthe Stars, Suite 1600, Los Angeles, California 90067-6017. On September 21, 2005, I served the following document(s) described as ANSWER BRIEF ON THE MERITSontheinterested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: See Attached Service List BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY OVERNIGHT DELIVERY:I served such envelope or packageto be delivered on the same day to an authorized courier or driver authorized by the overnight service carrierto receive documents, in an envelope or package designated by the overnight service carrier. STATE: I declare under penalty ofperjury underthe laws of the State of California that the foregoingis true andcorrect. Executed on September21, 2005, at Los Angeles, California. | Qakvo, DeEtra Crudup -5]- --0060-- SERVICE LIST Clerk of the Court California Court ofAppeal Fourth Appellate District, Division Three 925 N. Spurgeon Street Santa Ana, California 92702 Clerk of the Court Attn: Honorable Gerald G. Johnston Department C-29 700 Civic Center Drive West Santa Ana, California 92701 -52- --0061-- EXHIBIT B --0062-- No. 03-1488 in The Supreme Court of the Gnited States ¢ ULYSSES TORY AND RUTH CRAFT, Petitioners, v. JOHNNIE L. COCHRAN,JR., Respondent. « On Writ Of Certiorari To The Court OfAppeal Of TheState Of California, Second Appellate District, Division One ¢ PETITIONERS’ BRIEF ON THE MERITS 4 ERWIN CHEMERINSKY Counsel ofRecord 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 Avenueof 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 --0063-- QUESTION PRESENTED Whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment. --0064-- ii TABLE OF CONTENTS Page Question Presented 1.0.02...cccceceteseneneeterseseneeeeeees i Table ofAuthorities ............c ccc csescceeceeteeeeeessneeseneeeres iv Opinion Below......0.......cc ccc consesceecseeeseneteneceneaneneenae 1 Statement of Jurisdiction .......0...ceceeee e ee eee renee 1 Constitutional Provision Involved ...........:.:.::ceceeeeee 1 Statement of the Case..............c:sccsesecsseereeeeeeneeeseeeeenes 2 Summary ofArgument ..0.......cc cc ecccssneseseteessaceeeeessntes 7 AYBUMEDL...... ccc cecsecececececescecceteseceetenseessersnetttenceeseseneets 11 I. THE TRIAL COURT PERMANENTLY EN- JOINED SPEECH ABOUT A PUBLIC FIGURE INVOLVING A MATTER OF PUBLIC CON- CERN .0... ec ecccensenseeeneceesesseevescnasseseceeseseapenennnaee 11 II. COURT ORDERS PERMANENTLY ENJOIN- ING SPEECHARE PRIOR RESTRAINTS......... 14 Ill. A COURT ORDER PERMANENTLY EN- JOINING SPEECH IS NOT A PERMISSI- BLE REMEDY IN A DEFAMATION CASE, ESPECIALLY WHEN THE PLAINTIFF IS A PUBLIC FIGUREuececceteecerenceueresenes 18 A. Prior Restraints Are Not A Constitution- ally Permissible Remedy In Defamation CASES .o.eeccccccescceeccucceeersenensceesescesetescesenassness 20 1. Permanent Injunctions Historically Have Not Been A Permissible Remedy in Defamation Actions ...............----esece 20 2. Damages Are A Sufficient Remedy For Plaintiffs In Defamation Cases.... 23 --0065-- iil TABLE OF CONTENTS — Continued Page 3. Effective Injunctions In Defamation Cases Are Inherently Overbroad And Inevitably Put Courts In The Role of Being Perpetual Censors Determin- ing Whether Speech Can Occur.......... 26 4. Allowing Injunctions As A Remedy In Defamation Cases Would Be A Radi- cal Change In The Law With A Dev- astating Effect On Freedom Of Speech. 2.0... eesccesseecssseserescsenssseeeeseeeees 30 B. At A Minimun,Injunctive Relief Should Not Be Available To Public Figure Plain- tiffs In Defamation Cases.................0 20 33 IV. ANY PERMISSIBLE PRIOR RESTRAINT MUST BE NARROWLY TAILORED, BUT THE PERMANENT INJUNCTION IN THIS CASE IS EXTREMELY BROAD.............:064 35 A. IfA Prior Restraint Is Ever Permissible, It Must Be Narrowly Tailored..............-.:00 35 B. The Prior Restraint Imposed On Tory and Craft Is Unconstitutionally Overbroad...... 37 Conclusion .......cccccccceescessccscececsepeeeseereeaenseeeereetesetsceas 39 --0066-- TABLE OF AUTHORITIES Page CASES Advanced Training Systems, Inc. v. Caswell Equip- ment Co., Inc., 352 N.W.2d 1 (Minn. 1984)...............-.. 32 Aguilar v. Avis Rent A Car Systems, Inc., 980 P.2d 846, 21 Cal.4th 121 (Cal. 1999) 00...ce eeeeeeeetereeee 23 Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967)................. 32 Alexander v. United States, 509 U.S. 544 (1993)....8, 14, 15 American Malting Co. v. Keitel, 209 F. 351 (2d Cir. 1913)... cccccsccesessscecceeeecensssssconsecesseessacesseeadecssorsoreeeoseeces 32 Avis Rent A Car Sys., Inc, v. Aguilar, 529 U.S. 1138 (2000) ......eeececcssnsseesececsssseseesseeeeteessescessoesestteasetcaeeeseseaae 19 Balliet v. Cassidy, 104 F. 704 (C.C.D.Or. 1900)................ 21 Bantam Books, Ine. v. Sullivan, 372 U.S. 58 (1963)......... 18 Beck v. Ry. Teamsters’ Protective Union, 77 N.W. 13 (Mich. 1898) ...00.....c ce eeessecsessencenseecesrnatnesescevsnenesseessenees 32 Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987)... ce cccsscececeeesaseneseeceetaeeseeaes 36 Bose Corp. v. Consumers Union of United Siates, Inc., 466 U.S. 485 (1984) oo.cscsseseeeeeceeeeeereenceeeeees 34 Brandreth v. Lance, 8 Paige Ch. 24 (N.Y. Ch. 1839)......... 21 Branzburg v. Hayes, 408 U.S. 665 (1972)...eee 39 Brown v. Peirolite Corp., 965 F.2d 38 (5th Cir. 1992)....... 32 Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175 (1968) ......cceccsscescscsceeneveeseereecesesserseeses 26, 35 Carter v. Knapp Motor Co., 11 So.2d 383 (Ala. 1943)....... 32 CBSInc. v. Davis, 510 U.S. 1815 (1994)... 18, 27 --0067-- TABLE OF AUTHORITIES - Continued Page Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 F. 553 (C.C.M.D. Ala. 1909) 000.0... ec cceeccescccsescesseseeseecsscscercnersesersseucassaeeseeeens 22 Community for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C.Cir. 1987) ........ccccccccsceececeeseseeneeseseerecterens 31 Couch v. San Juan Unified Sch. Dist., 39 Cal.Rptr.2d 848 (Cal.Ct.App. 1995)...esenerresees 4 CPC In?’Inc. v. Skippy Inc. , 214 F.3d 456 (4th Cir. 2000)... ececscescsceccesccscessssvccescsscsessssscsenenenseceuseesesessecaeseeees 36 Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 19638)... ..cccceccccccceesceescessncesscresersersesscesenesacssesesseenneess 32, 36 Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967)...... 9, 19, 34 Doe v. TCI Cablevision, 110 §.W.3d 363 (Mo. 2003)......... 36 Francis v. Flinn , 118 U.S. 385 (1886)..........--.eeeeeeeees 9, 24 Geriz v. Robert Welch, Inc., 418 U.S. 323 (1974)............9,11 Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)........ 13 Greenberg v. Burglass, 229 So.2d 83 (La. 1969)............... 32 Guion v. Terra Mktg. of Nevada, Inc., 523 P.2d 847 (Nev. 19°74) ......ccccccssscssessssecsecessescesssessscecceecessssstenseectsnatene 82 Gooding v. Wilson, 405 U.S. 518 (1972) ......eeceseeseeeceees 36 Gruschus v. Curtis Publ’g Co., 342 F.2d 775 (10th Cir, 1965).......ccccccceccessscsscsesessessssereesserseeseecessensssssenseteatens 38 Hague v. CIO, 307 U.S. 496 (1939)........... Leseteneesesseeeens 10, 38 Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253 (Tex, 1988)..........cccscccessseecescssescesccccecesccenseetesscceeesesereoaes 32 Hansbury v. Lee, 311 U.S. 82 (1940)...eeceseeneeeee 28, 39 Houston v. Hill, 482 U.S. 451 (1987)... eccceeeceeeseseeereene 36 --0068-- vi TABLE OF AUTHORITIES - Continued Page Howell v. Bee Publ’g Co., 158 N.W. 358 (Neb. 1916)......... 21 Husiler Magazine v. Falweil, 485 US. 46 (1988)....... 13, 27 In re Providence Journal Co., 820 F.2d 1342 (1st Cir, 1986) oo... cccceeecesesceesscecseeetsceessesceseoesesaeeceesseeseesseans 31 Kingsley Books, Ine. v. Brown, 354 U.S. 436 (1957)... 30, 31 Kwassv. Kersey, 81 S.E.2d 237 (W.V. 1954)...eee 32 Life Ass’n ofAm. v. Boogher, 3 Mo. App. 173 (1876)......... 21 Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990). ...ccccesecescescccssscesescesceessscansecseseaseceseeeerereseuseaeasseesses 32 Madsen v. Women’s Health Center, Inc., 512 U.S. TBS (1994) oo.eeneceene cece es teereneeereseaeneene 16, 17, 23, 35 Marlin Fire Arms Co. v. Shields, 64 N.E. 163, 171 N.Y. 384 (NY. 1902) oo.cececee ccseeeeeeeneeeseeneereeetaeseenes 82 Martin v. Wilks, 490 U.S. 755 (1989)... eseesceesceeees 28, 39 Menard v. Houle, 11 N.E.2d 436 (Mass. 1937)...........000 32 Mescalero Apache Tribe v. Allen, 469 P.2d 710 (N.M. 19TO)......cccceccsscssnescetsentcecseencoaccnebecangeensceescedeeegensmecseoeeneeass 32 Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees and Restaurant Employees Int'l Un- ion, 239 F.3d 172 (2d Cir. 2001) 2.0... cess cesseecesseseteeseees 31 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) 00... cecscccseecessereeersseeeees 13 Milkovich v. Lorain Journal, 497 U.S. 1(1990).......... 33, 37 Montgomery Ward & Co. v. United Retail, Whole- sale & Dep’t Store Employees, 79 N.E.2d 46 (Tl. 1948). ..cccccsscccsscessscsssactecssceesecneesssessseecsuesseneecaseennseeseeasers 32 --0069-- TABLE OF AUTHORITIES- Continued Page Moore v. City Dry Cleaners & Laundry, Inc., 41 So.2d 865 (Pla. 1949)... .ceccecsessseccncesesstsseesceeeoseneesneenee 32 NAACPv, Button, 371 U.S. 415 (1968)...eeeeee 36 NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ....eecccccccsecesssescceeeseesterscceseeeeessscecceesenedseeeeneeenseesetens 39 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).....passim Nebraska Press Ass’n v. Stuart, 427 U.S. 539° (1976)oeccecceccscccessee ce eeeeesesceececeeeeeseneenseraes 18, 27, 29, 30, 32 New York Times Co. v. Sullivan, 376 U.S. 254 (196A) occ ccesccenseec cee ceseenseeeneecestseeseaeteees 11, 25, 27, 34, 40 New York Times Co. v. United States, 403 U.S. 714 (VOTA) o.eeececsccsessstserscceccescececenesecceteescecsateeteeestaraeeseesonee 18, 31 O’Brien v. Univ. Comty. Tenants Union, Inc., 327 N.E.2d 753 (Ohio 1975)...cesecssssesestesseceeesneeconereseees 32 Organization for a Better Austin v. Keefe, 402 US. ALB (VOT) oo.cccecstcecsesssecssenseneeeeeeeecanes 8,15, 16, 17, 18 Pennekamp v. Florida, 328 US. 33 (1946)........ 9, 24, 25, 32 Pittsburgh Press Co. vu. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1979)..............00 18, 31 Prucha v. Weiss, 197 A.2d 253 (Md. 1964)..........c:cceesseeeee 32 Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (Pa. 1788) .ccccsccsecsccsssssesseesesssucsssessvecesecsssesseessssstesgsavessssasse 23, 24 Retail Credit Co. v. Russel, 218 S.E.2d 54 (Ga. 1975)... cccscscccscsssssecscccesressseceeneeesasceessscesssereseeneeeseeseesseens 32 Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742)........-..0. 20 Robert E. Hicks Corp. v. Nat'l Salesmen’s Training Ass’n, 19 F.2d 963 (7th Cir. 1927) ....ccccececccscceeeeeeeetens 32 --0070-- viil TABLE OF AUTHORITIES - Continued Page San Antonio Cmty. Hosp. v. Calif. Dist. Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997)..........ccsese 32 Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) ....esecesssecssseaccssnsorseseeseesceesessecaeetscesescenteaeesonssitonseues 36 Schmoldt v. Oakley, 390 P.2d 882 (Okla. 1964).........0...... 32 Southeastern Promotions v. Conrad, 420 U.S. 546 (LOT5) oo cccsecessssscsssesesecescssnsecssscecssenceacersenseccasvessdererssseeeeees 28 State ex rel. Liversey v. Judge of Civil Dist. Court, 34 La. Ann, 741 (1882) 000...eeeeeeeeeesssseceeeeeerrseeneenseese 22 United States v. Doe, 455 F.2d 753 (1st Cir. 1972)............ 31 Universal Amusement Co. v. Vance, 404 F.Supp. 33 (S.D. Tex. 1975).....ccccccccccccsecesssscessensseevsreeesecseaseeeseceeee 16 Vance v. Universal Amusement Co., Inc., 445 U.S. BOB (1980) voce eeccesccecssscceesessessseeeenssesteseeseesessees 8, 16,17 Walkerv. City ofBirmingham, 388 U.S. 307 (1967)......... 17 Willing v. Mazzocone, 393 A.2d 1155 (Pa. VOTE) oo oc cee cccessesveeseceeessccecececcensseseeeetacsseneers 21, 25, 26, 32 Wolsion v. Reader’s Digest Ass’n, Inc., 443 U.S. 157 (1979) oooecceccccsccececceseececeseveesceesssecescseseusssneeeeeeseasentiees 9, 33 CONSTITUTIONAL PROVISIONS AND STATUTES QB U.S.C. § 1257 .eccecccesccscenscceesseececeanssvseseeseessessessenseneees 1 Cal. C. Civ. Proc. § 47D)...cccseccsccsnseceerenereeceeaseesatscesee’ 37 Cal. Const., art. 1, § 20a)oncesescsssseneaeaeeressaseennernees 6 U:S. Const., amend I ......... cececeecceeeeeeeceseeeteeeseneeeeepassim --0071-- ix TABLE OF AUTHORITIES - Continued Page MISCELLANEOUS 43A C.J.S. Injunctions, § 255 (2004)cesseseeeecene 9, 20 Appellant’s Brief, Near v. Minnesota, 1930 WL QBGBL, at *Lon.ceccececeseccsssnnee rece teceseneceeeecesseseesnacenaeteees 22 Brief of Appellee, Near v. Minnesota, 1931 WL BOBO, at *10 0.0... ce ecccssctseeecssestacesesseeesenersessasessesortseaes 22 Johnnie Cochran, A Lawyer's Life 7-8 (2003) ............ 0. 12 20 Thomas B. Howell, A Complete Collection of State Trials 799 (1816) .......ccccsssscccsesersecseesseneveneeeecsnees 21 Michael I. 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 (2OOL) oo...cecccceccceeereceteceeceeeeecesseeeeeneeeeeneteeeensensees 9, 20, 21 W.E. Shipley, Injunction as Remedy Against Defa- mation ofPerson, 47 A.L.R.2d 715 (1956)........... 9, 20, 21 Rodney Smolla, Law of Defamation § 9:85 (2d ed. QOOA)....cecccccscccceccesevvssesecssseeseesceerecssevesneeseessesseeesee 9, 20, 31 --0072-- OPINION BELOW The opinion of the California Court of Appeal, Second Appellate District, Division One, is unpublished. (JA 51- 61.)* ¢ STATEMENT OF JURISDICTION Pursuant to 28 U.S.C. § 1257, this Court has jurisdiction to review the October 29, 2003 decision of the Court of Appeal of the State of California, following a denial of discretionary review by the Supreme Court of California on January 28, 2004. (JA 51-62.) The petition for a writ of certiorari was filed on April 26, 2004, and was granted on September28, 2004. o CONSTITUTIONAL PROVISION INVOLVED “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend.I. * Citation to the JointAppendix will be styled, “JA___”. Citation to the Reporter’s Transcript from the trial proceedings in the Superior Court for the State of California will be styled, “RT __”. Citation to the Clerk’s Transcript from the trial proceedings in the Superior Court for the State of California will be styled, “CT __” --0073-- 2 STATEMENT OF THE CASE The California Court of Appeal] affirmed a permanent injunction that forever prohibits Ulysses Tory and Ruth Craft from all future speech in any public forum — regard- less of content or context - about an admitted public figure, Johnnie L. Cochran, Jr. (JA 52, JA 55-56, JA 60.) This lawsuit arose from the events of earlier litigation where Petitioner Tory was represented by Cochran andhis law firm. On February 18, 1983, Tory and one of his employees, Javier Gutierrez, emerged from Tory’s Fish Market and were fired upon by law enforcementofficials. (RT 6:8-11.) Shortly thereafter, Tory decided to retain Cochran in a persona] injury and civil rights lawsuit against various government entities involved in the incident. (RT 6:11-13, 64:2-7, CT 47.) Tory went to Coch- ran’s law office and was interviewed by an attorney named Earl Evans. (RT 64:5-10, 79:4-11.) Evans signed a retainer agreement on Cochran's behalf, establishing the attorney- client relationship between Tory and Cochran’s law firm. (RT 64:5-10, 79:16-28, 118:1-8.) Over the next two years, Tory became increasingly frustrated with what Tory perceived as Cochran’s failure to pursue the litigation on his behalf. (RT 215:16-19, 274:2- 18.) Tory felt that he was not beingadequately represented. (RT 274:2-18, 180:12-27.) By contrast, Cochran wasable to secure a substantial settlement for Gutierrez. (RT 36:10-24, 184:20-28, 216:1-5.) Cochran ultimately withdrew from representing Tory. (RT 174:18-174:3.) During the same time period, Evans, who wasstill working at Cochran’s law office and using Cochran’s stationery, handled a divorce proceeding for Tory andchild custody proceedings for Tory’s putative spouse, Petitioner --0074-- Ruth Craft. (RT 6:24-7:2, 63:4-21, 78:12-28.) Tory and Craft paid Evans for his services under the impression that they were paying Evans as an agent of Cochran’s law firm. (RT 189:3-7, 253:1-19.) Petitioners were not satisfied with Evans’ services and wanted a refund of the monies that they had paid. (RT 6:26-7:2, 81:7-18, 176:21-25.) Tory and Craft testified under oath that Cochran offered to repay such monies to Petitioners. (RT 262:14-263:2.) Several years later, with no refund forthcoming, Tory began peacefully picketing on the sidewalk outside of Cochran’s Los Angeles law office and later in front of the Los Angeles Superior Court. (RT 222:2-16.) He picketed with a group of other people who also were dissatisfied with Cochran, including people Tory understood to be former clients of Cochran and relatives of formerclients. (RT 208:22-26, 272:17-20.) Tory testified that he did not pay the other picketers, but that he “might have bought them lunch.” (RT 208:27-209:23.)} Tory picketed because he believed that he had not been treated fairly by Cochran, that he had not been represented adequately by Cochran, and that he had been deceived by Cochran into thinking that he would be refunded money, (RT 213:17-21, 216:6-12; 222:2-16, 274:2-18.) Tory and others carried placards bearing various state- ments expressing opinions about Cochran’s performance as an attorney and about the legal system generally, such as: ¢ “Johnnie is a crook, a liar, and a Thief. Can a lawyer go to HEAVEN? Luke 11:46” ’ The reference is to Luke 11:46 in the Bible which reads: “And he said: ‘Woe to you lawyers also! For you load men with burdens hard to (Continued on following page) --0075-- 4 ¢ “What can I do if I don’t receive the Justice the Constitution guarantees ME?” ® “You've been a BAD BOY, Johnnie L. Cochran” ¢ “Atty COCHRAN, We have no Use for Illegal Abuse” ¢ “I Know How it Feels to Be Terrorized. God Bless USA” e “Absolute Discrimination” e “Attorney Cochran, Don’t We Deserve at Least the same Justice as O.J.” ® “Unless You have O.J.’s Millions -— You'll be Screwed if you USE J.L. Cochran, Esq.” (JA 53-54.) As a result of the picketing activity, Cochran sued Tory and Does for defamation (libel, libel per se, slander and slanderper se) andfalse light invasion of privacy.’ (JA 7-22.) The Superior Court for the State of California issued a preliminary injunction, prohibiting Tory from speaking about Cochran, and subsequently tried the suit without a jury. (JA 55.) Tory represented himself in the proceedings. (Id.) Cochran admitted at trial that he did not lose any business as a result of the picketing. (RT 55:20-28.) bear, and you yourselves do not touch the burdens with one of your fingers.” ? In California, “[w]hen claims for [false light} invasion of privacy ... are based on the samefactual allegations as those of a simultaneous libel claim, they are superfluous and must be dismissed.” Couch v. San Juan Unified Sch. Dist. 39 Cal.Rptr.2d 848, 856 (Cal.Ct.App. 1995). Cochran’s false light claim is based on exactly the sameallegations as his defamation claims. (JA 17.) --0076-- Tory consistently asserted his constitutional right to free speech in the trial court proceedings. For example, Tory’s Answer to Cochran’s operative complaint asserted that “the issuance of a preliminary and/or permanent injunction against his picketing activities as proposed in the Complaint would constitute an unconstitutional prior restraint.” (JA 24.) Moreover, in his objections to the trial court’s Statement of Decision, Tory protested that his picketing was “protected under the First Amendment (Freedom of Expression) to the United States Constitu- tion,” and further noted that Cochran “is a public figure and therefore, must be held at a higher standard than a private citizen in a matter or issue of libel, slander and invasion of privacy.” JA 29.) The Superior Court found in Cochran’s favor. (RT 275:4- 6.) The Court did not award money damages because such damages were waived by Cochran.’ The Superior Court noted that Cochran never proved the “existence and amount of damages.” (JA 37-38.) But the Court did issue a perma- nent injunction, which provides, in pertinentpart: Unless and until this Court, after notice to JOHNNIE L. COCHRAN, JR. (“COCHRAN”) and opportunity for him to be heard, modifies or va- cates this order, it is ordered that TORY, and his employees, agents, representatives, and all persons acting in concert, cooperation or participation with him, including, but not limited to, Ruth Craft and any other co-conspirator, are permanently en- joined from engagingin anyof the following:. . . * See Reporter's Transcript of trial court proceedings on April 24, 2002, at 2:7-10 (Cochran's counsel: “We did have a right to proceed for money damages,but we're going to waive that right.”) --0077-- In any public forum, including, but not lim- ited to, the Los Angeles Superior Court, and any other place at which COCHRAN appearsfor the purpose of practicing law: (i) picketing COCH- RAN and/or COCHRAN’slawfirm;(ii) displaying signs, placards or other written or printed mate- rial about COCHRAN and/or COCHRAN’s law firm; Gii) orally uttering statements about COCH- RAN and/or COCHRAN’s law firm ... (JA 34.) (emphasis added) Craft was not named as a defendant in the lawsuit, nor was she given a chance to defend herself at trial, but her speech rights were explicitly restrained in the perma- nent injunction. (RT 4:16-5:27; JA 34.) The injunction is not limited to preventing defamatory statements; it prohibits Tory and Craft from saying anything about Cochran in any “public forum.” (JA 34.) Tory and Craft timely appealed from the permanent injunction. (CT 118, 120.) The appeal focused primarily on the permanent injunction as an overbroad prior restraint on future speech issued in violation of the First Amend- ment and Article 1, Section 2(a) of the California Constitu- tion. (JA 56-58.) The appeal also raised other issues implicating the First Amendment. The appeal asserted that all of the purported statements are protected opinion and/or hyperbole, and therefore none of the statements can give rise to a cause of action for defamation or false light invasion of privacy. (JA 59.) Also, the appeal submit- ted that Cochran, a public figure, failed to prove, under the constitutionally-mandated clear and convincing evidence standard, that Petitioners published any of the allegedly defamatory statements with actual malice. (JA 60.) --0078-- On October 29, 2003, the California Court of Appeal issued an unpublished decision affirming the injunction. (JA 51-61.) The California Court of Appeal rejected the contention that the permanent injunction represented an overbroad prior restraint in violation of the First Amend- ment and the California Constitution. (JA 56-58.) The decision states that permanent injunctions on speech are not prior restraints, and that the overbreadth doctrine does not apply to permanentinjunctions.(/d.) Tory and Craft timely petitioned the Supreme Courtof California for review of the California Court of Appeal’s decision. On January 28, 2004, the Supreme Court of California denied review of the California Court of Ap- peal’s decision, with Justices Kennard and Brown voting to grant review. (JA 62.) Tory and Craft have faithfully abided by the perma- nent injunction restricting their speech since the injunc- tion was entered by the Superior Court on April 24, 2002. Under the terms of the Superior Court’s order, Tory and Craft may speak about Cochran or his law firm only if they first gain permission of the Superior Court through a modification of its order. (JA 34.) « SUMMARY OF ARGUMENT Never in the almost 213 year history of the First Amendment has this Court approved an injunction as a remedy in a defamation action. In its landmark ruling in Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), this Court held that a permanent injunction is a prior re- straint; that prior restraints are allowed in only the most limited and compelling circumstances; and that courts --0079-- 8 may not enjoin future speech even when they find that defamation has occurred. Contrary to these basic First Amendmentprinciples, the California Court ofAppeal upheld a permanent injunc- tion that forever prohibits Tory and Craft from saying anything about Johnnie Cochran or his law firm in any public forum. The Court of Appeal erred for several key reasons. First, the Court of Appeal wrongly held that a perma- nent injunction is not a prior restraint if it follows a trial. (JA 56-57.) This is incorrect because this Court clearly and consistently has ruled that a permanent injunction is a classic prior restraint, even when it is imposed as a rem- edy after a finding of liability. See, e.g., Near, 283 U.S. at 706; Alexander v. United States, 509 U.S. 544, 550 (1993); Organization for a Better Austin v, Keefe, 402 U.S. 415, 417 (1971); Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 311-12 (1980). Injunctions are prior restraints because they prevent future speech and because they require a defendant found liable for prior conduct to obtain a judge’s permission before prospective speech occurs. In this case, Tory and Craft cannot say anything about Coch- ran until and unless they go back to the California Superior Court and have the judge modify the permanent injunction to permit the particular expression. Contrary to the Court ofAppeal’s holding, this is an obviousprior restraint. Second, the Court of Appeal erred because it ruled that a permanentinjunction is a permissible remedy in a defa- mation action brought by a public figure. (JA 56-57.) To the contrary, centuries of precedent, dating back to English law before the existence of the United States, establish that equitable relief is not available in defamation cases. See, --0080-- 9 e.g., Rodney Smolla, Law of Defamation § 9:85 (2d ed. 2004); Michael Meyerson, The Neglected History of the Prior Restraini Doctrine: Rediscovering the Link Between the First Amendment and Separation of Powers, 34 Ind.L. Rev. 295, 308-311, 324-330 (2001); 43A C.J.S. Injunctions § 255 (2004); W.E. Shipley, Injunction as Remedy Against Defamation ofPerson, 47 A.L.R.2d 715 (1956). Throughout American history, this Court has held that damages, not injunctions, are the appropriate remedy in defamation actions. See, eg., Francis v. Flinn, 118 U.S. 385, 389 (1886); Near uv. Minnesota, 283 U.S. at 718-19; Pennekamp v. Florida, 328 U.S. 33, 346-471 (1946). Especially, as here, when the defamation plaintiff is a public figure or a public official, injunctive relief should not be a remedy because of the importance of speech about public individuals who hold such prominent positions in American society. Curtis Publ’g Co. uv. Butts, 388 U.S. 130, 164 (1967). As this Court repeatedly has observed, such individuals have exposed themselves to criticism by voluntarily stepping into the limelight and gainingspecial access to the media to respond to any attacks. See, e.g., Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 164 (1979); Gertz v. Robert Weich, Inc, 418 U.S. 323, 337 (1974). The injunction in this case is unprecedented in preventing any speech about a major national public figure on an issue of great social importance: the perform- ance of lawyers and courts, Third, the Court of Appeal erred in concluding that a permanent injunction of speech need not be narrowly tailored (JA 57-58) and in upholding an extremely broad prior restraint that prevents all future speech by Tory and Craft about Cochran or his law firm in any public forum. The injunction is not limited to enjoining defamatory --0081-- 10 speech. Underits terms, Tory and Craft cannot express their opinions or even make factually true statements about Cochran or his firm. Under the injunction, which prevents all speech in any public forum, Tory or Craft could not walk down a sidewalk or through a park and have a conversation with anyone about Cochran, even if they were praising him. See Hague v. CIO, 307 US. 496, 515-16 (1939) (parks and streets are public forums). The injunction’s tremendous overbreadth is reflected in its restrictions on Craft’s speech, though she was not even a party to the litigation. Nor is this just a matter of how the injunction is phrased. If the injunction were to prevent only the repeti- tion of specific statements, it would serve no purpose because the speaker could find countless other ways of expressing the same idea without violating the court’s order. If the injunction prohibits all speech by the defen- dant about the plaintiff, such as the injunction in this case, it is vastly overbroad in forbidding expression pro- tected by the First Amendment. The stakes here are enormous. The California Court of Appeal’s approach would allow every court in the country, in every defamation action, to issue a broad injunction as a remedy. Any act of defamation would mean that the speaker could be barred forever from saying anything — fact. or opinion, true or false — about the defendant in any public forum. A newspaper that was found to have de- famed a person could be perpetually enjoined from ever publishing anything about that individual. Such a perma- nent forfeiture of speech rights, especially about public figures and matters of public concern — which is exactly what occurred in this case — has no place in a country governed under the First Amendment. Affirming the Court --0082-- 11 of Appeal’s decision and relaxing the centuries old ban on prior restraints in defamation cases would lead to prior restraints being frequently, and likely regularly, imposed in defamation actions. This Court should reaffirm the basic principles an- nounced in Near v. Minnesota: injunctions are prior restraints and are not a permissible remedy in defamation cases. e ARGUMENT I. THE TRIAL COURT PERMANENTLY EN- JOINED SPEECH ABOUT A PUBLIC FIGURE INVOLVING A MATTER OF PUBLIC CON- CERN. This Court Jong has emphasized the importance of robust debate about those who hold public office and positions of great public prominence. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (describing “a profound national commitment to the principle that debate on public issues should be uninhibited, rebust, and wide-open, and that it may well include vehement,caustic, and sometimes unpleasantly sharp attacks”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (“The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a publie person.”) This Court has explained that “[t]hose who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention, are properly classed as public figures.” Geriz, 418 USS.at 342. --0083-- 12 Under this definition, Johnnie Cochran is a quintes- sential public figure; he is likely the best known and perhaps the most controversial attorney in the world. In his recent autobiography, Cochran stated that his success has “provided [him] with the kind of high-profile celebrity and visibility few attorneys have ever enjoyed.” Johnnie Cochran, A Lawyer’s Life 7-8 (2003). Indeed, Cochran’s description of himself shows that he is the classic public figure: “Court TV hired me to cohost a nightly TV show. Characters in movies made reference to me. . .. I appeared as myself in the Robert DeNiro/Eddie Murphyfilm Skow- time. | appeared often as a guest on shows ranging from the very serious Nightline to Larry King’s show to sitcoms like The Hughleys. Saturday Night Live and Seinfeld parodied me.” Id. As the Los Angeles Times noted in a 2002 interview, “his face and name are known everywherethere is CNN. He maybethefirst private citizen in history to have such a huge worldwide recognition factor.” Benjamin Levine, A Cause Celebre, L.A. Times, Sept. 29, 2002, at Part 5, Page 1. The website for his law firm, “The Cochran Firm: America’s Law Firm,” describes itself as “one of America’s largest personal injury plaintiff law firms.” (http:/Avww.cochranfirm.com (last visited, Nov. 4, 2004)). As the Court of Appeal observed, Cochran “will- ingly concedes” his statusas a public figure. (JA 60.) The trial court’s order is simply unprecedented in permanently enjoining Petitioners Tory and Craft from ever saying anything about a major national public figure in any public forum ever again. Moreover, the injunction is antithetical to the First Amendment’s commitment to debate about important issues of public concern. The speech restrained in this case was not idle gossip about a --0084-- 13 celebrity; it was about the practice of law and the opera- tion of the legal system. This Court has recognized that there is an “extremely important” public interest concern- ing the conduct of lawyers. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 434 (1982); see also Goldfarb v. Virginia State Bar, 421 US. 773, 793 (1975) (citation omitted) (“lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts,’”) Those who have been involved in the legal system must be encouraged to speak to inform the press and the public of their experiences, including how they were treated by lawyers and judges. This Court has recognized that “[tJhe sort of robust political debate encouraged by the First Amendmentis bound to produce speech thatis critical of those who hold public office or those public figures who are ‘intimately involved in the resolution of important public questionsor, by reason of their fame, shape events in areas of concern to society at large.’” Hustler Magazine v. Falwell, 485 US. 46, 56 (1988) (citations omitted). All of the speech that gave rise to this lawsuit expressed Tory’s opinions about Cochran’s conduct as a lawyer and how Tory wastreated by the legal system. (JA 53-54.) The permanent injunction upheld by the California Court of Appeal thus has the effect of forever silencing speech — critical or praising, fact or opinion — about the performance of a lawyer who holds a prominent position in the American legal system and American culture. --0085-- 14 Il. COURT ORDERS PERMANENTLY ENJOIN- ING SPEECH ARE PRIOR RESTRAINTS. Astoundingly, the California Court ofAppeal held that a permanentinjunction on speech is not a prior restraint. (JA 56-57.) The Court of Appeal said that the very broad permanent injunction on Tory’s and Craft's future speech was not a prior restraint because there was an adjudica- tion that some of Tory’s prior speech was unprotected. Ud.) The Court of Appeal’s conclusion cannot be reconciled with this Court’s decisions that clearly and unequivocally hold that a court order permanently enjoining speech is a prior restraint, even if it follows a judicial proceeding. Nor can the Court of Appeal’s conclusion that there is no prior restraint be reconciled with the fact that the permanent injunction allows Tory and Craft to speak about Cochran or his law firm only if they first get the Superior Court judge’s permission. (JA 34.) This Court has expressly declared that “permanent injunctions ... that actually forbid speech activities are classic examples of prior restraints” because they impose a “true restraint on future speech.” Alexander v. United States, 509 U.S. 544, 550 (1993); see also id. at 572 (Ken- nedy, J., dissenting) (the prior restraint doctrine “encom- passes injunctive systems which threaten or bar future speech based on some past infraction.”) In Alexander, the Court discussed three prior decisions of this Court holding that permanent injunctions on speech are inconsistent with the First and Fourteenth Amendmentsto the United States Constitution. Id. at 550. These cases clearly hold that a permanent injunction on speech, such as the injunc- tion in this case, is a prior restraint. --0086-- 15 The seminal case concerning prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed from a permanent injunction issued after a case “came on for trial.” Id. at 705-06. The injunc- tion in that case “perpetually” prevented the defendants from publishing again because, in the preceding trial, the lower court determined that the defendant's newspaper was “‘chiefly devoted to malicious, scandalous and defamatory articles.’” Id. at 706. As the Court in Alexander explained, “Near, therefore, involved a true restraint on future speech — a permanentinjunction.” Alexander, 509 U.S. at 550. The Near Court held that such an injunction on future speech, even if preceded by the publication of defamatory material, was unconstitutional. 283 U.S. at 721. The Court in Alexander also discussed Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), in which a group of picketers and pamphleteers were enjoined from protesting a real estate developer's business practices. Alexander, 509 U.S, at 550. Although this Court noted that the injunction in Keefe was labeled “temporary” by the trial court, it was treated as permanentsince its label was ‘little more than a formality,” it had been in effect for years, it had been issued after an “adversary hearing,” and it “already had [a] marked impact on petitioners’ First Amendmentrights.” Keefe, 402 U.S. at 417-18 & n.1. This Court struck down the injunction in Keefe as “an imper- missible restraint on First Amendmentrights.” Id. at 418. In words that are particularly apt for this case, this Court held 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.” Jd. at 418- 419. The Court stressed that “InJo prior decisions support the claim that the interest of an individual in being free --0087-- 16 from public criticism of his business practices in pam- phlets or leaflets warrants use of the injunctive powerof a court.” Jd. In Vance v. Universal Amusement Co., 445 U.S. 308 (1980), the third permanent injunction case cited in Alexander, this Court invalidated a Texas statute that authorized courts, upon a showing that the defendant had shown someobscene films in the past, to issue an injunc- tion of indefinite duration prohibiting the defendant from showing any films in the future even if those films had not yet been found to be obscene. Vance, 445 U.S. at 311. The three-judge District Court in Vance, whose decision was affirmed by this Court, held that, as in Near, “the state ‘made the mistake of prohibiting future conduct after a finding of undesirable present conduct,” and that such a “general prohibition would operate as a prior restraint on unnamed motion pictures” in violation of the First Amendment. Vance, 445 U.S. at 311-12 & n.3, 316-17 (quoting Universal Amusement Co. v. Vance, 404 F. Supp. 33, 44 (S.D. Tex. 1975)). Injunctions are treated as prior restraints because that is exactly what they are: a prohibition of future expression. As this Court noted, injunctions “carry greater risks of censorship and discriminatory application than do general ordinances.” Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 764 (1994). Justice Scalia’s opinion in Madsen, which was joined by Justice Thomas and Justice Kennedy, explained that “an injunction against speech is the very prototype of the greatest threat to First Amend- ment values, the prior restraint.” Id. at 797 (Scalia, J., concurring in judgment in part and dissenting in part). Injunctions may be used to “suppress the ideas in question rather than to achieve any other proper governmental --0088-- 17 aim.” Id. at 792-93. Injunctions are “the product of indi- vidual judges rather than of legislatures — and often of judges who have been chagrined by prior disobedience of their orders. The right to free speech should not lightly be placed within the control of a single man or woman.” Id. at 793. As Justice Scalia cautioned, “the injunction is a much more powerful weapon than a statute, and so should be subjected to greater safeguards.” Id. Violations of an injunction, even an unconstitutiona] injunction, are punishable by contempt, while violations of unconstitu- tional laws never can be punished. Walker v. City of Birmingham, 388 U.S. 307, 320-321 (1967) (upholding collateral bar rule precluding those violating an injunction from later challenging its constitutionality). The California Court of Appeal incorrectly concluded that a permanent injunction is not a prior restraint if it follows a trial. (JA 56-57.) But Near, Keefe, and Vance establish that even though a permanentinjunction follows a trial, it is still unquestionably a prior restraint on speech. The permanentinjunction in this case, by its very terms, prevents future speech.It is not limited to prevent- ing repetition of false statements of fact that are of and concerning the plaintiff and uttered with actual malice — defamatory speech beyond the reach of the First Amend- ment; the injunction prevents any future statement by Tory or Craft about Cochran. Under the terms of the court’s order, Tory and Craft can speak about Cochran and his law firm only if they first go to the Superior Court and receive its permission through a modification of the court order. (JA 34.) As in Near, Keefe, and Vance, this unques- tionably makes the permanentinjunction a prior restraint. --0089-- 18 Ill, A COURT ORDER PERMANENTLY ENJOINING SPEECH IS NOTA PERMISSIBLE REMEDY INA DEFAMATION CASE, PARTICULARLY WHEN THE PLAINTIFF IS A PUBLIC FIGURE. Prior restraints on speech constitute “the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Thus, the First Amendment “accords greater protection against prior restraints than it does against subsequent punishment for a particular speech.” Jd. at 589. There is a “deeply-seated American hostility to prior restraints.” Jd. This Court has stressed that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Vance, 445 U.S. at 317 (emphasis in original, quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). This Court has often repeated, in many distinct contexts, its antipathy towards “systems” of prior re- straints on speech.’ “It is because of the personal nature” “ See, eg., CBS Inc. v. Davis, 510 U.S, 1915, 1317 (1994) (Black- mun, J., Circuit Justice) (finding temporary injunction on broadcast unconstitutional despite allegations that broadcast would be defama- tory and cause economic harm); Nebraska Press Ass’n,, 427 U.S. at 556 (applying prior restraint doctrine to reject gag order on participants in a criminal trial); New York Times Co. v. United States, 403 U.S. 714 (1971) (per curiam opinion applying prior restraint doctrine to strike down injunction on publication of confidential government documents, and, in separate opinions, “every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraints as presumptively unconstitutional,” Pittsburgh Press Co. v, Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 8396 (1973) (Burger, CJ., dissenting)); Bantam Books, 372 U.S. at 70-71 (listing cases striking down prior restraints and rejecting as “informal censorship” local commission’s ability to list certain publications as “objectionable” and to threaten prosecution for their sale); Near, 283 U.S. at 706, 722-23 (rejecting injunction on future publication of newspaper despite (Continued on following page} --0090-- 19 of the right of free speech that this Court has “rejected al] manner of prior restraint on publication, despite strong arguments that if the material was unprotected the time of suppression was immaterial.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 149 (1967) (plurality opinion) (citation omitted). The strong presumption against prior restraints is evidenced by the fact that this Court never has upheld a prior restraint as a permissible remedy in a defamation action. The absence of a single Supreme Court decision approving a prior restraint as a remedy in a defamation case reflects the historical condemnation of injunctions in such actions, the inherent adequacy of money damages, andthe inevitable futility of crafting an injunction that is both effective and narrowly tailored. Moreover, injunctions especially should never be allowed whentheplaintiff is a public officia) or public figure because of the indisputable importance of social discussion about these individuals and because such individuals generally have other reme- dies, such as access to the media to respond to any attacks on their reputation. publisher's previous dissemination of defamatory material). See also Madsen, 512 U.S. at 798 (Scalia, J., concurring in judgmentin part and dissenting in part) (listing cases and observing that this Court has “repeatedly struck down speech-restricting injunctions”); Avis Rent A Car Sys., Inc. v. Aguilar, 529 U.S. 1188, 1140 (2000) (Thomas, J., dissenting from denial of certiorari) (urging granting of certiorari to “address the troubling First Amendmentissues raised” by an injunction imposing “liability to the utterance of words in the workplace”). --0091-- e f i . So f e e 20 A. Prior Restraints Are Not A Constitutionally Permissible Remedy In Defamation Cases. 1. Permanent Injunctions Historically Have Not Been A Permissible Remedy in Defa- mation Actions. The traditional rule of Anglo-American law is that equity has no jurisdiction to enjoin defamation. See Rod- ney Smolla, Law of Defamation § 9:85 (2d ed. 2004); Michael] I. 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); 43A C.J.S. Injunctions § 255 (2004); W.E. Shipley, Injunction as Remedy Against Defamation ofPerson, 47 A.L.R.2d 715, 715-16 (1956). The rule was established in Eighteenth-Century England, well before the American revolution. Its earliest statement is found in Roach v. Garvan, 26 Eng. Rep. 683 (Ch. 1742), where Lord Chancellor Hardwicke remarked in a case involving a newspaper that printed commentary that was both libelous and a contemptof court: Mr. Solicitor Genera] has put it upon the right footing, that notwithstanding this should be a li- bel, yet, unless it is a contempt of the court, I have no cognizanceofit: For whetherit is a libel against the public or private persons, the only methodis to proceedat law. Three-quarters of a century later, Thomas Howell, barrister and editor of the State Trials series, tellingly explained the strong consensus that equity had no power to restrain defamation: “I believe there is not to be found in the books any decision or any dictum, posterior to the days of the Star Chamber, from which such doctrine can be --0092-- & 21 deduced, either directly or by inference or analogy.” 20 Thomas B. Howell, A Complete Collection of State Triais 799 (1816). Nineteenth and Twentieth Century American courts, with remarkable uniformity, adopted the traditional English rule. Shipley, supra, at 716-21. See, e.g., Life Ass’n of Am. v. Boogher, 3 Mo. App. 173, 176, 179-80 (1876); Balliet v. Cassidy, 104 F. 704, 706 (C.C.D.Or. 1900); Howell v. Bee Publ’g Co., 158 N.W. 358, 359 (Neb. 1916); Willing v. Mazzocone, 393 A.2d 1155, 1157-58 (Pa. 1978); Meyerson, supra, at 324-330, Free speech concerns were prominent among the reasons given for their position. In the very first American case on the subject, New York’s Chancellor Walworth began his opinion refusing to enjoin the publica- tion of a libelous pamphlet by saying: It is very evident that this court cannot assume jurisdiction of the case . . . or of any other case of the like nature, without infringing upon the lib- erty of the press, and attempting to exercise a power of preventive justice which ... cannot safely be entrusted to any tribunal consistently with the principles of a free government. Brandreth v. Lance, 8 Paige Ch. 24, 26 (N.Y. Ch. 1839). In 1882, the Louisiana Supreme Court issued an elaborate opinion refusing to enjoin a newspaper from printing libelous cartoons. After discussing the constitu- tional prohibition of prior restraints, the court depicted the traditional] common law rule as central to preventing a legal regime in which “with a subservient or corrupt judiciary, the press might be completely muzzled, and its just influence upon public opinion entirely paralyzed.” --0093-- 22 State ex rel. Liversey v. Judge of Civil Dist. Court, 34 La. Ann. 741, 745 (1882). In 1909, a United States Circuit Court interpreted the Alabama Constitution as prohibiting equity from restrain- ing defamation, saying: The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their or- ganic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co., 171 F. 553, 556 (C.C.M.D. Ala. 1909). The traditional rule that equity does not enjoin defamation is reflected in the briefs submitted to this Court in Near v. Minnesota, 283 U.S. 697 (1931). Near argued that “[t]he general rule is that equity will not under any circumstances enjoin defamation as such.” Appellant’s Brief, Near, 1930 WL 28681 (page numbers not. available). In supporting this proposition, Near cited three treatises and discussed over twenty cases directly support- ing his claim. Id. The State, in arguing that “[t]he court has powerto restrain by injunction publication of defama- tory matter,” relied on just two far less apposite cases. Brief of Appellee, Near, 1931 WL 30640, at *10. This Court’s holding in Near was in line with centuries of English and American decisions. The Court explained that the injunction of speech in Near — like the injunction issued in this case - was an “unusual, if not unique” imposition on the freedom of speech. Near, 283 U.S. at 707. --0094-- 23 2. Damages Are A Sufficient Remedy For Plaintiffs In Defamation Cases. Justice Scalia observed that “[plunishing unlawful action by judicial abridgment of First Amendmentrights is an interesting concept; perhaps Eighth Amendmentrights could be next. J know of no authority for the proposition that restriction of speech, rather than fines or imprisonment, should be the sanction for misconduct.” Madsen, 512 U.S. at 794 n.1 (Scalia, J., concurring in judgment in part and dissenting in part). See also Aguilar, 529 U.S. at 1143 (Thomas, J., dissenting from denial of certiorari) (“money damages” for future use of unprotected language in the workplace is preferable to an injunction on the same words). Justice Scalia’s observation is based on a wealth of support in the annals of jurisprudence, particularly in the pages of Near, where this Court already has announced that damages and other methods of punishing past speech — not restraints on future speech — are the appropriate remedies in defamation cases. In Near, this Court drew a line between damages as a permissible remedy for past speech and an impermissible system that proscribes future speech: “Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers andperiodicals.” Near, 283 U.S. at 718-19. Courts long have recognized that damages, not injunc- tions, are the appropriate remedy in a defamation action, In the first days of the Republic, even before the adoption of the First Amendment, the court in Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (1788), explained that although “libelling --0095-- 24 [sic] 1s a great crime,” it is well-understood that “any attempt to fetter the press” is unacceptable. Id. at 324-25. Even though the defendant’s “offence [sic] [was] great and persisted in,” the Court did not enjoin the defendant’s future speech.Id. at 328. Similarly, well over a century ago, in Francis v. Flinn, 118 U.S. 385 (1886), this Court stressed that damages, not injunctions, are the proper remedy in defamation actions. In expressing the general rule that equitable relief is not permissible when there are remedies at law, the Court stated: “If the publications in the newspapersare false and injurious, he can prosecute the publishers for libel. If a court of equity can interfere and use its remedy of injunc- tion in such cases, it would drawto itself the greater part of the litigation belonging to courts of law.” Id. at 389. In other cases, too, this Court has recognized that damages, not injunctions, are the appropriate remedy in defamation cases. For example, in Pennekamp v. Florida, 328 U.S. 331 (1946), this Court reversed a judgment of contempt against a newspaper editor responsible for publishing editorials that purportedly were contemptuous of judges and the administration of criminal justice in pending cases. /d. at 350. The Supreme Court of Florida, upholding the lower court’s citation for contempt, ex- plained that a newspaper maygenerally criticize a judge, but “‘may not publish scurrilousor libelous criticisms of a presiding judge as such or his judgments for the purpose of discrediting the Court in the eyes of the public.’” Id. at 343 n.6. Nevertheless, this Court concluded that the contempt citation must be reversed to encourage debate on public issues, and also because, “when the statements (about a judge} amount to defamation, a judge has such a remedy --0096-- 25 in damages for libel as do other public servants.” Id. at 348-49. Precluding prior restraints does not leave those defamed without remedy, or render the law powerless to deter defamation. This Court has upheld, with crucial limitations, the ability of public officials and public figures to recover damages in defamation cases. Sullivan, 376 U.S. at 283. The Sullivan Court stressed that damage awards, even against major metropolitan newspapers, are a potent weapon for the defamation plaintiff and noted that “(t]he fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute.” Id. at 277-78. Despite these cautionary observations about the potential impact of damage awards, damages remain an available remedy in defamation cases if the First Amend- ment’s requirements are met. In this case, the injunction was issued despite the fact that no damages were awarded because the plaintiff, Johnnie Cochran, waived his right to seek damages and conceded at trial that he could show no special damages. (RT 55:20-28.) The Superior Court found that Cochran never proved the “existence and amount of damages.” (JA 37-38.) In such a situation, there is hardly the irreparable injury warranting equitable relief.” * An opinion from the Supreme Court of Pennsylvania, with facts remarkably similar to those at bar, persuasively reasoned that damages are the sole remedy available to plaintiffs in defamation actions. Willing v. Mazzocone, 393 A.2d 1155, 1156-58 (Pa. 1978). In Willing, the Court struck down as unconstitutional an injunction preventing an individual] from picketing her former lawyers (claiming that the lawyers “stole” her money and “sold her out”), even though the formerclient was demanding the repayment of money that she clearly was not owed.Id. (Continued on following page) --0097-- 26 Monetary damages are the appropriate remedy in a defamation action. Injunctions, such as that issued in this case, should not be permitted. 3. Effective Injunctions In Defamation Cases Are Inherently Overbroad and Inevitably Put Courts In The Role of Being Perpetual Censors Determining Whether Speech Can Occur. Injunctions have not been, and should not be permitted in defamation cases for another reason: it is impossible to formulate an effective injunction that would not be extremely overbroad and that would not place the court in the role of the censor, continually deciding what speech is allowed and whatis prohibited. Any effective injunction wil] be overbroad, and any limited injunction will be ineffective. Prior restraints, such as injunctions, are a “‘most extraordinary remed[y]’” to be used “only where the evil] that would result from the reportage is both great and certain and cannot be militated by less intrusive means.” CBS, 510 U.S. at 1317 (Blackmun,J., Circuit Justice). There can be no constitutional justification for such an extreme remedy unless it can be properly tailored and would actually serve its purpose. An injunction “issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin pointed objective permitted by constitutional mandate and the essential needs of the public order.” Carroll v.. President The Willing Court also soundly rejected the contention that injunctive relief was the only adequate remedy because the picketing formerclient could not afford to pay a money judgment, and thus, practically, there was not an adequate remedy atlaw. Id. at 1158. ~--0098-- 27 and Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968). Moreover, this Court has acknowledged that it “must also assess the probable efficacy of [a] prior restraint of publi- cation as a workable method,” and “cannot ignore the reality of the problems of managing” such orders. Ne- braska Press, 427 U.S. at 565. As the axiom goes, “a court of equity will not do a useless thing.” New York Times, 403 USS.at 744 (Marshall, J., concurring). In defamation cases, the injunction either must be limited to the exact communication already found to be defamatory, or reach more broadly and restrain speech that no jury has ever determined to be libelous. Most egregiously, as in the present case, the injunction can go so far as to prevent any future speech about the plaintiff. An injunction that is limited to preventing repetition of the specific statements already found to be defamatory is useless because a defendant can avoid its restrictions by making the same point using different words without violating the court’s order. Moreover, even if the injunction is limited to particu- lar statements already found false, defamatory, and uttered with the requisite mental state, a prospective prohibition on the same comments cannot guarantee satisfaction of the elements of defamation at every point in the future. A statement that was once false may become true later in time. Likewise, even if a defendant in a defamation action once acted with the requisite degree of culpability, he or she may have a different mental state later. Defamatory statements about public figures are outside the scope of the First Amendment only when the plaintiff can “prove both that the statement was false and that the statement was made with the requisite level of culpability.” Hustler Magazine, 485 U.S. at 52 (emphasis --0099-- 28 in original). Permitting permanent injunctive relief in a defamation case absolves the defamation plaintiff of his or her burden to demonstrate falsity and culpability each time a purportedly defamatory statement is made. Thus, unlike injunctions on particular obscene motion pictures, enjoining “defamatory” speech will inherently reach too far and be overbroad because“(ijt is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.” Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546, 559 (1975). An injunction that reaches more broadly than the exact words already held to be libelous is overbroad for the very reason that it restrains communication before a jury determination of whetherit is or is not protected by the First Amendment. Because it delays communication that may be non-defamatory and protected by the First Amendment, it is the essence of a prior restraint. Just as it is “always difficult to know in advance what an individual wil] say,” Southeastern Promotions, 420 U.S. at 559, it is also difficult to know in advance who will speak. Any injunction designed to restrict speech effec- tively must encompass others besides the defamation defendant, such as Ruth Craft in this case. But that inevitably involves stripping persons not before the court of their First Amendment rights without sufficient due process. See Hansbury v. Lee, 311 U.S. 32, 40 (1940) ({Olme is not bound by a judgment in personam in a litigation in which heis not designated as a party or to which he has not been madea party by service of process.”); Martin v. Wilks, 490 U.S. 755, 761 (1989) (non-parties cannot be bound by judgments). On the other hand, even the most --0100-- ea te n gt R R B h o R E E B s 29 over-reaching injunction on defamatory statements will also be under-inclusive, and therefore ineffective, since a third party, completely unaffiliated with the defendant and not bound by the injunction, can - at his financial peril — repeat the same statements already determined to be defamatory. See Nebraska Press, 427 U.S. at 609 n.36 (Brennan J., concurring) (lamentingthe futility of under- inclusive injunctions on speech). In addition, an injunction that reaches more broadly than the exact communication already held to be defama- tory has the effect of forcing a defendant to go to court any time he or she wants to say anything about theplaintiff and prove to the court that the intended statementis not defamatory. This is exactly the nature of the injunction in this case: it prohibits Tory, and even Craft who was not a party to the litigation, from saying anything about Coch- ran in any public forum until and unless they go back to the court and obtain the judge’s permission to speak. That brand of judicial clearance is what this Court in Near called “the essence of censorship.” 283 U.S. at 713. In Near, this Court emphatically rejected the notion that even one who had previously been found liable for printing defamatory matter could be forced to prove to a judge that future statements “are true and are published with good motives andfor justifiable ends.” Near, 283 U.S. at 713. The injunction in this case, as in any defamation case, is precisely that type of censorship, as those enjoined will not be able to say anything about the subject without first getting permission from a judge. Such restrictions inevitably put the court in the classic role of the censor and are intolerable under the First Amendment. --0101-- 30 4. Allowing Injunctions As A Remedy In Defamation Cases Would Be A Radical Change In The Law With A Devastating Effect On Freedom Of Speech. In 1931, this Court noted that, “for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints on publication relating to the malfeasance of public officers;” the Court thus reaffirmed the “deep-seated conviction that such restraints would violate constitutional right.” Near, 283 U.S. at 718. The same certainly holds true today almost three-quarters of a century later. This Court has never, in all of American history, even once upheld a prior restraint in the defamation context. This Court has sanc- tioned injunctions on speech only in the most “exceptional cases,” such as those involving obscenity, incitements to violence and “the publication of the sailing dates of trans- ports or the numberandlocation of troops.” Near, 283 U.S. at 716. See also Nebraska Press, 427 U.S. at 590-91 (Bren- nan,J., concurring) (explaining that this Court has limited injunctions on speech only to these “three such possible exceptional circumstances”). The few scenarios where this Court has even contem- plated prior restraints are readily distinguishable from any case involving defamation. For example, in Kingsley Books, Inc. v. Brown, 354 U.S. 486 (1957), this Court explained that injunctions on materials already deemed obscene are “glaringly different” from the injunction of a publication “because its past issues had been found offen- sive.” Id. at 445. Reiterating Near’s admonition that the latter type of injunctions are the “‘essence of censorship,” the Kingsley Court “studiously withh[eld] restraint upon matters not already published and not yet found offensive.” --0102-- 31 Id. In this case, by contrast, the court has enjoined Tory and Craft from saying anything about Cochran, and thus has restrained speech that has not yet been “published and not yet found offensive.” Similarly, even Near’s allowance for injunctions on national] security grounds wasgreatly circumscribed in the “Pentagon Papers” case, New York Times v. United States, 403 U.S. 713 (1971), where this Court emphasized that the governmentfailed to meet the very heavy burden needed to sustain a court order enjoining speech. In Pittsburgh Press, this Court upheld a “narrowly drawn”rule prohibiting the “placement in sex-designated columns of advertisements for nonexempt job opportuni- ties.” 413 U.S. 376, at 391. The Court invoked Near and “reaffirmfed] unequivocally the protection afforded to editorial judgment and to the free expression of views ... however controversial.” Id. Furthermore, in Pittsburgh Press, the Court stressed that the Commission’s order preventing sex-based want ads could not be enforced by contempt sanctions because “[tJhe Commission is without power to punish summarily for contempt.” Jd. at 390 n.14. That is very different from a court. order enjoining speech, such as in this case, where any violations are punishable by contempt. Consistent with the presumptive invalidity of all systems of prior restraints, most jurisdictions adhere to the maxim that “equity will not enjoin a libel.”” Smolla, * See, e.g., Metropolitan Opera Ass'n, Inc. v. Local 100, Hotei Employees and Restaurant Employees Int'l Union, 239 F.3d 172, 177-78 (2d Cir. 2001); Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C.Cir. 1987); In re Providence Journal Co., 820 F.2d 1342, 1845-46 (1st Cir. 1986); United States v. Doe, 455 F.2d 753, 760 n.4 (1st (Continued on following page) --0103-- 32 supra, at §9.85 at 9-56. Unfortunately, several jurisdic- tions already have departed from the sound reasoning in Near.’ This trend must end with a decisive rejection of permanent injunctions in the defamation context, or else “the constitutional limits of free expression in the Nation [will] vary with state lines,” Pennekamp, 328 U.S. at 335, and “judges at all levels” will be interjected “into censor- ship roles that are simply inappropriate and impermissi- ble under the First Amendment.” Nebraska Press, 427 U.S. at 607 (Brennan, J., concurring). Such a resujt would be an unacceptable and unprecedented abridgment of the First Amendment. Cir. 1972); Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963); American Malting Co. v. Keitel, 209 F. 351, 354-56 (2d Cir. 1913); Robert E. Hicks Corp. v. Natl Salesmen’s Training Ass'n, 19 F.2d 963, 964 (7th Cir. 1927); Hajek v. Bili Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983); Willing v. Mazzocone, 393 A.2d 1155, 1157-58 (Pa, 1978); Greenberg v. Burglass, 229 So.2d 83, 86-89 (La. 1969); Mescalero Apache Tribe v. Allen, 469 P.2d 710, 711 (N.M. 1970); Schmoldt v. Oakley, 390 P.2d 882, 884-87 (Okla. 1964); Prucha v. Weiss, 197 A.2d 253, 256 (Md. 1964); Kwass v. Kersey, 81 S.E.2d 237, 243-46 (W.V. 1954); Moore v. City Dry Cleaners & Laundry, Inc., 41 So.2d 865, 873 (Fla. 1949); Montgomery Ward & Co.v. United Retail, Wholesale & Dep't Store Employees, 79 N.E.2d 46, 48-50 (Il. 1948); Marlin Fire Arms Co. v. Shields, 64 N.E. 163, 165-67, 171 NLY, 384, 391-96 (N.Y. 1902); Beck v. Ry. Teamsters’ Protective Union, 77 N.W. 13, 24 (Mich. 1898). * See, e.g, San Antonio Cmty. Hosp. v. Calif. Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997); Brown v. Petrolite Corp., 965 F.2d 38, 50-51 (5th Cir. 1992); Lothschuetz v. Carpenter, 898 F.2d 1200, 1206-09 (6th Cir. 1990); Advanced Training Systems, Inc. v. Caswell Equipment Co., Inc., 352 N.W.2d 1, 11 (Minn. 1984); Retail Credit Co. v. Russell, 218 S.E.2d 54, 62-63 (Ga. 1975); O’Brien v. Univ. Comty. Tenants Union,. Inc., 327 N.E.2d 753, 755 (Ohio 1975); Guion v. Terra Mktg. of Nevada, Inc., 523 P.2d 847, 848 (Nev. 1974); Carter v. Knapp Motor Co., 11 So.2d 383, 385 (Ala. 1943); Menard v. Houle, 11 N.E.2d 436, 437 (Mass. 1937). --0104-- 33 B. At A Minimum, Injunctive Relief Should Not Be Available To Public Figure Plain- tiffs In Defamation Cases. The only way to adequately safeguard free expression is to mandate that no kind of civil defamation plaintiff may obtain injunctive relief, but the point takes on an added urgency where, as here, the plaintiff is a public official or a public figure. Public figures “are less vulner- able to injury from defamatory statements because of their ability to resort to effective ‘self-help’ ”; they “usually enjoy significantly greater access than private individuals to channels of effective communication, which enable them through discussion to counter criticism and expose the falsehood andfallacies of defamatory statements.” Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 164 (1979). There is no indication that Cochran resorted to “self-help” by publicly countering Tory’s criticisms; nor any indication that Cochran suffered real injury since Cochran waived his right to seek money damages and conceded attrial that he had no evidence Tory’s activities caused him to lose any business. (RT 2:7-10, 55:20-28.) “[M]ore importantly,” this Court has held that “public figures are less deserving of protection than private persons because public figures, like public officials, have ‘voluntarily exposed themselves to increasedrisk of injury from defama- tory falsehood concerning them.’” Wolston, 443 U.S. at 164. Put simply, even if private individuals were entitled to injunctive relief in defamation cases, the purposes and history of the First Amendment and prior restraint juris- prudence do not support the notion that public figures should be able to enjoy the benefits of such a remedy. This Court has recognized the importance of speech about public figures, especially those, such as Johnnie --0105-- 34 Cochran, whoplay such an importantrole in the American legal system. As Chief Justice Earl Warren observed in wordsthat are particularly apt for this case: [It is plain that although they are not subject to the restraints of the political process, ‘public fig- ures,’ like ‘public officials,’ often play an influen- tial role in ordering society. And surely as a class these ‘public figures’ have as ready access as ‘public officials’ to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the con- duct of such persons, and freedom of the press to engage in uninhibited debate about their in- volvement in public issues and events is as cru- | cial as it is in the case of ‘public officials.’ The. fact that they are not amenable to the restraints of the political process only underscores the le- gitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct. Butts, 388 U.S. at 164 (Warren, C.J., concurring); see also Milkovich v. Lorain Journal, 497 U.S. 1, 15 (1990) (quot- ing Chief Justice Warren’s concurring opinion in Butts). Public figures, such as Johnnie Cochran, must accept that a consequence of their celebrity — here plainly sought and embraced — is that they may be subjected to “vehement, caustic, and sometimes unpleasantly sharp attacks.” Sullivan, 376 U.S. at 270. This is an inherent consequence of the First Amendment because “freedom to speak one’s mindis not only an aspect of individual liberty — and thus a good untoitself — but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 US. --0106-- 35 485, 503-04 (1984). This is especially important here where the criticism was targeted not just at Cochran, but also at lawyers and the legal profession, subject matter about which robust debate should be encouraged. Evenif, under some limited circumstance, injunctions on future speech about private persons could be considered consistent with the First Amendment — which Petitioners dispute - the paramount importance of an open and free discourse regarding public persons imposes a constitu- tional bar on their ability to obtain injunctive relief in the defamation context. IV. ANY PERMISSIBLE PRIOR RESTRAINT MUST BE NARROWLY TAILORED, BUT THE PER- MANENT INJUNCTION IN THIS CASE IS EXTREMELY BROAD. A. IfA Prior Restraint Is Ever Permissible, It Must Be Narrowly Tailored. Consistent with this Court's abhorrence of prior restraints, it has ruled that any injunction restricting speech must “burden no more speech than necessary to serve a significant government interest.” Madsen, 512 U.S. at 765. Put another way, an injunction on speech “must be couched in the narrowest terms that will accomplish the pin-pointed objective” of the injunction. Carroll, 393 U.S. at 183. The Court ofAppeal upheld the permanentinjunction in this case based on its expressed premise that the overbreadth doctrine does not apply to permanent injunc- tions. (JA 56-57.) This is plainly wrong. This Court has made clear that any restriction of speech is unconstitu- tional if it regulates substantially more speech than the --0107-- S e g ? a e 36 Constitution allows to be regulated. See, e.g., NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amend- ment freedoms need breathing space to survive, govern- ment may regulate in the area only with narrow specificity”). See also Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987) (invali- dating overbroad regulations prohibiting all ‘First Amendmentactivities” at airports in Los Angeles); Hous- ton v. Hill, 482 U.S. 451, 481 (1987) (declaring unconstitu- tional an overbroad provision making it unlawful to interrupt police officers in the course of their duties); Schad v. Borough ofMi. Ephraim, 452 U.S. 61, 61-2 (1981) (striking as overbroad an ordinance prohibiting all live entertainment); Geoding v. Wilson, 405 U.S. 518 (1972) (invalidating a fighting words statute). If they are permit- ted at all, prior restraints in defamation actions brought by public figures must be narrowly tailored and be limited to defamatory statements outside the scope of First Amendment protection: false statements of fact uttered with actual malice." * Given these constitutional principles, lower courts consistently reject overbroad permanentinjunctions on speech. See, e.g., CPC Int'l, Inc. v. Skippy Inc., 214 F.8d 456, 461-63 (4th Cir. 2000); Doe v. TCI Cablevision, 110 §,W.3d 363, 375 (Mo. 2003). For instance, in Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1968), the Second Circuit struck down a permanentinjunction, issued after a defamation trial, prohibit- ing “any” report or statement about a businessman or his brother. The court determined that the injunction was an unconstitutional prior restraint, but further observed that the injunction was defective because it precluded “any” remarks, and was not, at a minimum, “directed solely to defamatory reports, comments or statements.” Id. at 485. --0108-- 37 B. The Prior Restraint Imposed On Tory and Craft Is Unconstitutionally Overbroad. The prior restraint entered by the trial court and affirmed by the Court of Appeal is breathtaking in its scope and sweep; it is the antithesis of a narrowly drawn order preventing speech. First, the injunction is not limited to enjoining de- famatory expression. In many ways,it extends far beyond restricting defamatory speech because: * It prohibits Tory and Craft from making any state- ment about Cochran or his law firm, even if they are just expressing opinion. Opinion, even if unflattering, is, of course, protected by the First Amendment and cannot be deemed defamatory. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); Gertz, 418 U.S. at 339 (“The First Amendmentrecognizes no such thing as a ‘false’ idea.”)” ¢ In addition to preventing Tory and Craft from opining about Cochran, the injunction also prohibits other forms of protected speech. For example,it prohibits speech that otherwise would be protected by the litigation privi- lege concerning pending cases. See, e.g., Cal. C. Civ. Proc. §47(b) (defining California’s litigation privilege). ¢ The injunction is also not limited to preventing false statements of fact that would be injurious to Cochran’s * In fact, the statements which gaverise to this lawsuit were expres- sions of opinion and were not defamatory at all. Manyofthe signs were not directed at Cochran, such as “Whatcan I do if I don’t receive the Justice the Constitution guarantees me.” The ones that mentioned Cochran were just expressing opinion, such as “Attorney Cochran, Don't We Deserve at Least the same Justice as O.J.” and “Unless You have 0.J.’s Millions — You'll be Screwed ifyou USE J.L. Cochran, Esq.” --0109-- 38 reputation. Under the termsof the injunction, even speech praising Cochran is prohibited. Completely true factual statements about Cochranalso are enjoined. ¢ The injunction continues forever, even if Johnnie Cochrandies or his law firm dissolves. The law, of course, does not recognize defamation claims for those who are deceased. See, e.g., Gruschus v. Curtis Publ’g Co., 342 F.2d 775, 776 (10th Cir. 1965). But for the rest of their lives, Tory and Craft never can utter a word about Cochran or his law firm. Second, the injunction is vastly overbroad in that it applies to speech in any “public forum.” The Petitioners could not walk down a sidewalk or through a park and say anything to anyone about Johnnie Cochran.See, e.g., Hague v. CIO, 307 U.S. 496, 515-16 (1939) (affirming that parks and streets are public forums). For example, Tory and Craft seemingly would violate the injunction, and be subject to punishment for contempt, if either walked down a sidewalk or through a public park, and said to a friend, “I think Johnnie Cochran did a good job in representing O.J. Simp- son,” or “I saw Cochran being interviewed on television.” Third, the startling overbreadth of the injunction is most clearly manifest in its application to Ruth Craft and Tory’s other “agents” and “representatives.” Craft never was named as a defendant in the underlying lawsuit, she never had an opportunity to defend herself at trial, and yet she is one of only two people in America who may never mention Cochran in public.” The wholesale stripping of Craft’s First Amendmentrights is inconsistent with any notions ” In contrast, Cochran’s firm never was named asa plaintiff in the lawsuit, yet it is still shielded from critical speech. --0110-- 39 of equity or due process. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 919 (1982) (“‘guilt by association alone’ . is an impermissible basis upon which to deny First Amendmentrights”). See also Martin v. Wilks, 490 US. at 761 (1989), Hansbury v. Lee, 311 U.S. at 40 (due process prevents non-parties from being bound by judgments). The permanent injunction is so overwhelming in scope that even this brief violates its terms since it is authored by Tory’s “agents” and “representatives,” it mentions Coch- ran, and it is distributed in public fora. ¢ CONCLUSION This Court has emphasized that the First Amendment protects the rights of the “lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher whoutilizes the latest photocomposi- tion methods.” Branzburg v. Hayes, 408 U.S. 665, 704 (1972). Correspondingly, affirming the permanent injunction im- posed in this case on a lonely picketer would have profound consequencesfor all speakers, ranging from the pamphleteer to the largest newspapers andtelevision stations. Abandoning Near v. Minnesota’s disapproval of injunc- tive relief in defamation actions would mean that every court, in every successful defamation case, could enjoin all future speech by the defendant, or its agents, about the plaintiff in any public forum. The richness of the English language and the myriad ways of expressing any thought means that the only effective way to enjoin defamation would be, as here, to keep the defendant from ever uttering another word about the plaintiff. Such a result runs contrary to the fundamental precepts of the First Amendment, --0111-- 40 especially where the enjoined speech relates to a public person and a public issue. The permanent injunction in this case is a broad prior restraint on speech about a public figure, on a matter of public concern, striking at the very heart of the First Amendment’s commitment “that debate on public issues should -be_uninhibited, robust, and wide-open.” New York Times Co. v.Bullivan, 376 U.S. at 270. This Court should reverse,the decision of the California Court of Appeal and should reaffirm centuriesofjurisprudence and the holding in Near v. Minnesota: permanent injunctions of speech are not a permissible remedy in defamationcases. Respectfully submitted, ERWIN CHEMERINSKY Counsel ofRecord 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 Avenueofthe Stars, Suite 1600 Los Angeles, California 90067 (310) 228-3700 Counsel for Petitioners Ulysses Tory and Ruth Craft --0112-- EXHIBIT C --0113-- No. 03-1488 Su The Supreme Court of the Gnited States ¢ ULYSSES TORYAND RUTH CRAFT, Petitioners, Vv. JOHNNIE L. COCHRAN;JR., Respondent. o On Writ Of Certiorari To The Court OfAppeal OfThe State Of California, Second Appellate District, Division One + PETITIONERS’ REPLY BRIEF ON THE MERITS ¢ ERWIN CHEMERINSKY Counsel ofRecord 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) 225-6954 OR CALL COLLECT (402) 342-2831 --0114-- TABLE OF CONTENTS Page TABLE OF AUTHORITIES..........cccccssccssesssensseeeeeesees iii INTRODUCTION.............ccccscccsssescssesssssssesecscessecssneneees 1 ‘I. THE INJUNCTION WAS IMPOSED AS A REMEDY FOR DEFAMATION OF A PUBLIC FIGURE AND NOT FOR EXTORTION, AND THUS MUST MEET THE FIRST AMEND- MENT’S REQUIREMENTS FOR REMEDIES IN DEFAMATION ACTIONS...ccceeeeeeeaes A. The Injunction Was For Speech Protected By The First Amendment................cccecee 1. The Injunction Was Issued For The Ex- pression Of Opinion About A Public Fig- ure OnA Matter Of Public Concern......... 2. The Injunction Was Based On State- ments That Were Not Made With Ac- tual Malice..........ccccccsccssssscesssceccccecesseess 3. Cochran’s Other Descriptions Of The Statements Do Not Make Them Unpro- tected Under The First Amendment..... B. The Injunction Was For Defamation And False Light Invasion Of Privacy, Not For EEXtortion ..........ccccceceeceseessecescenseseenesseseeesaes 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 Speech ............ccccccccesssesssesssessessesscscececeeseonees --0115- 8 ii TABLE OF CONTENTS - Continued Page I]. THE PERMANENT INJUNCTION IS A PRIOR RESTRAINT...cscsceessssseenseecsesesses 10 II. INJUNCTIVE RELIEF IS NOT A PERMISSI- BLE REMEDYINADEFAMATION CASE...... 11 A. Cochran Concedes That Prior Restraints Have Historically Been Rejected In Defa- MAtIon Cases... ..scecsecccecesessseeecessserecerees 11 B. Damages Are The Appropriate Remedy In Defamation Cases ............cccesssccsecesseseeeneeees 12 C. Injunctions Are Not An Appropriate Rem- edy In Defamation Cases.............ccccecsesees 14 IV. EVEN IF INJUNCTIONS ARE ALLOWEDIN DEFAMATION CASES, SUCH INJUNC- TIONS MUST BE NARROWLY TAILORED; BUT THE INJUNCTION IN THIS CASE IS UNCONSTITUTIONALLY OVERBROAD ....... 15 A. The PermanentInjunction Is Content- Based Because, As Respondent Concedes, It Bars Discussion On The “Subject” Of Johnnie Cochran ..............cccccssceeessseversseneee 15 B. The Permanent Injunction In This Case Is Enormously Overbroad..............scccceseseeree 17 C. The Court Should Declare The Injunction Unconstitutional, Not Rewrite It ............... 18 CONCLUSION......eee eceeceeesescsesssnssssessessassnsoaersoessentores 20 --0116-- TABLE OF AUTHORITIES Page CASES Alexander v. United States, 509 U.S. 544 (1998).............. 10 American Steel Foundries v. TriCity Central Trades Council, 257 U.S. 184 (1921) ....1.....ecceeeececteeeesetesesetenees 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)......... 5 Babbitt v, United Farm Workers National Union, 442 U.S. 289 (1979)oceeesessscessceceseesesesessesssetenees 13, 14 Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731 (1983)...........cccececeseees 13 Board ofAirport Commissioners v. Jews for Jesus, Ine., 482 U.S. 569 (1987)occseseescccssscsecssesseerseeanee 15, 19 Bose v. Consumers Union, 466 U.S. 485 (1984).......... 2, 3,5 Carey v. Brown, 447 U.S. 455 (1980) .........-2:ccescsseesesesenees 16 Carroll v. President andComm'rs ofPrincess Anne, 393 U.S. 175 (1968)...ccecesseesesscceseseessesssecseseseese 16 Cochran v. NYP Holdings, Inc., 210 F.3d 1036 (Sth Cir, 2000) 0... eee ccceccsecssssssceesssersnecesesesseesssetesssseresenasaees 18 Cohen v. California, 403 U.S. 15 (1971)... eseeseseseerseeneees 6 Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980)«0...cesccccsserseerssesseesesscssssessersasese 16_ Couch v. San Juan Unified Sch. Dist., 33 Cal. App. 4th 1491 (1995)...ceeesessecesessceneseneee sevesessssaeeeeeesens 11 Evans v. United States, 504 U.S. 255 (1992).....csssseesee 7 Ferlauto v. Hamsher, 74 Cal. App. 4th 1394 (1999)............ 4 Greenberg v. Burglass, 229 So.2d 83 (a.1969)...........0008 4 Hustler Magazine v. Falwell, 485 U.S. 46 (1988)....... 4,7,9 --0117-- iv TABLE OF AUTHORITIES -— Continued Page James v. San Jose Mercury News, Inc., 17 Cal. App. 4th 1 (1998)........cccessccccsscseceessssccecessecceestesarnsessscesseces 4 Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957)......... 12 Kwassv. Kersey, 81 S.E.2d 237 (W.V. 1954)...........ccsseseenes 4 Leeperv. Beltrami, 53 Cal.2d 195 (1959)........cece 1,14 Madsen v. Women’s Health Center, Inc. 512 U.S. 753 (1994)ceeccccsteveccsceteesesvensssecereecsecersssetersenss 10, 16,17 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (W991)oeeceeccssccessesseccnssseaseeseuesscsacsusssasuecessesesseseserscaes 5 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 428 (1982)... 00... eccsessessseeeseeuseee 3 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)........... 3 NAACP vu. Claiborne Hardware Co., 458 U.S. 886 (1982) .....cesccecccecsssssccssssccrcensecsceeccusescossecevsssesenccssstenseveenvars 9 National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994) 0...ccc cceeccecsssenssscestscecsereosssaseseeeaens 8 Near v. Minnesota, 283 U.S. 697 (1931)..........000... 11, 12, 20 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 0.0... cesesssessssscescesnssvscescvsnseusessasseesustssessersereersssensees 7 New York Times Co. v. United States, 403 U.S. 718 (1971) oneceeccccssscssevearecnensrcnseceerascecerssssaserenscsseutecenooas 14 Organization for a Better Austinv. Keefe, 402 U.S. 435 (1971)occcecstetececneneceencceerueesessenerensassoeensespassim Paris Adult Theatre I v. Slaton, 413 U.S. 49 (19793)......... 12 Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995)........... 4 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1978)..............‘veneceeeee 312 --0118-- TABLE OF AUTHORITIES — Continued Page Police Dep't ofChicago v. Mosley, 408 U.S. 92 (1972)....... 16 R.A.V. vu. City ofSt. Paul, 505 U.S. 377 (1992).........:ccceee 8 Savage v. Pacific Gas & Elect. Co., 21 Cal. App. 4th 443 (1998) oooeceeecsscnscceesseaesceereeensseeceeseesenseessneseeeeas 4 Time, Inc. v. Hill, 385 U.S. 374 (1967)........ccccsssscceeees 11 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961)... eeececeeeeccecsssceceesssesessssssessecuncoserstessussetssssenses 12 United States v. Grace, 461 U.S. 171 (1983)..........c..cccee 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 U.S. 576 (1971) wceseesssssssssscessseesssnssssecccsecesessceesssussseesesee 19 Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978)................ 4 CONSTITUTIONAL PROVISION U.S. Const., amend. 1 000...eee cceeecectessseeeretseeseeeneespassim STATUTES California Penal Code § 518..............cccceseccecteseeccrsessencesseees 7 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961,et Seq. .......:ccessersccecetssneeseserteceoees 14 --0119-- 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)..........c...cccssesesseereees 19 Rodney Smolla, Law of Defamation § 9:85 (2d ed. 2004) oo. eeeeeccccccceccecensseccecerecseerceenececeessscessesseassseeessene res 19 --0120-- e e INTRODUCTION Believing he was treated badly by prominent attorney Johnnie L. Cochran, Jr. and the legal system, Ulysses Tory exercised his First Amendmentright 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 everfile 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. --0121-- 2 Second, contrary to the assertion in Cochran’s brief, the trial court never found that Tory was engagedin 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 ofAppeal 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 narrowlytailored. Thus, this case is not about, and never has been about, extortion. Rather, this case concerns whether injunctions are a permissible remedy in public figure Gefamation 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- TIONACTIONS. 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 Union, 466 U.S. 485, 504, 506 --0122-- 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 judgmentdoes not constitute a forbidden intrusion on the field of free expression|[.]” Id. at 508. Consistent with this fundamental precept, the Court held that “I[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.” Id. 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 v. --0123-- 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 schoo} was not actionable); Ferlauto v. Hamsher, 74 Cal. App. 4th 1894, 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 v. 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 “crock” 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 formerclient 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”). --0124-- 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 gaverise 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 recordis 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 the 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 orfalsity. First, Tory testified that he subjectively believed that Cochran mishandled Tory’s original, underlyingcivil rights case.” Second, the evidence is not clear and convincing that Petitioners knew their demandsfor 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. --0125-- ee ne i n ta te r c e e re e e t e 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.’ 8. Cochran’s Other Descriptions Of The Statements Do Not Make Them Unpro- tected Under TheFirst 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 sameoffice 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 numberofyears,” 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 jaw firm. (RT 263:17-19, 262:14-263:2.) . --0126-- 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 thetrial 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, with 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 --0127-- o a t i S o M a e s 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 ofSt. Paul, 505 U.S. 377, 420 (1992) (Stevens, J., concurring). But not all speech that is designed to pressurethe 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 speakingis 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. /d. 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 --0128-- 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. Similar)y, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), this Court was clear that speech seeking to pressure economic behavior ts protected by the First Amendment. Claiborne Hardware involved an injunction designed to end an economic boycott, where “Petitioners admittedly sought to persuade others to jein 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”). --0129-- 10 Il. THE PERMANENT INJUNCTIONIS 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 whethertherestriction 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 unequivoca] statement in Alexander uv. 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 judgmentin part and dissentingin part). --0130-- li Il. INJUNCTIVE RELIEF IS NOTA PERMISSIBLE — REMEDYINADEFAMATION CASE. Cochran sued Tory for defamation (libel, libel per se, slander and slander per se) and false light invasion of privacy based on the sameset 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, Ine. v. Hill, 385 U.S. 374, 388 (1967). In California, “[wJhen claims for [false light invasion of privacy] ... are based on the samefactual 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 --0131-- 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 “PBM”) 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. 48, 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, 418 U.S. 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.” Id. B. Damages Are The Appropriate Remedy In Defamation Cases. Cochran makes noeffort 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 --0132-- 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. 7d. 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.) --0133-- 14 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 heis 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 suefor 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 commenceda civil action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., and had included in one paragraph a request to enjoin an allegedly corrupt labor union’s and “organized crime’s extortion of construction businesses.” fd. at 285. --0134-- 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 Amendmentactivities” 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 PermanentInjunction 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 ‘good’ 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 ofthe 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, --0135-- 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 ofChicago 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 residentia] 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 answerto 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.” Id. at 462 & u.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), --0136-- 2 a D R E 7 B. The Permanent Injunction In This Case Is Enormously Overbroad. Even if the Court determines that 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 becauseit 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) — “occupfy] 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- ernmentinterest 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 damagedhis business, --0137-- 18 there is no authority supporting injunctive relief. Keefe, 402 US. at 419 (rejecting an injunction on speech based on a claimed “invasion of privacy”). Moreover, Cochran and | . the trial court acknowledged that Cochran was not actu- ally damaged atall, (RT 55:20-28; JA 87-38.) Cochran also argues that the injunction helps protect the integrity of the legal profession. (RBM 44.) There is, however, a higherinterest in allowing criticism ofthe 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 hetestified: “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 --0138-- 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 namedin 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, eg., 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 ofAirport Comm'rs, 482 U.S: at 575- 76, this Court declined to narrow an overbroad regulation prohibiting “all First Amendment activities,” because even 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. --0139-- 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 ofRecord JEAN-PAUL JASSY DUKE UNIverstry Law SCHOOL SHEPPARD, MULLIN, RICHTER Science Drive and , & HaMpron LLP Towerview Road 1901 Avenueofthe Stars, Durham, North Carolina 27708 Suite 1600 (919) 613-7173 LosAngeles, California 90067 (310) 228-3700 Counsel for Petitioners Ulysses Tory and Ruth Craft --0140-- PROOF OF SERVICE Case No. 8235968 I, the undersigned, declare that I am overthe age of 18 years, employed in the City and County of San Francisco, California, and not a party to the within action. My business address is 505 Montgomery Street, Suite 800, San Francisco, CA 94111. On July 19, 2017, I served the following document(s): MOTION FOR JUDICIAL NOTICE; DECLARATION OF ROCHELLEL. WILCOX WITH EXHIBITS A-C; [PROPOSED] ORDER as follows: [x] U.S. Mail: J am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, such correspondence is deposited with the United States Postal Service in a sealed envelope or package that same day with first-class postage thereon fully prepaid. I served said document on the parties below by placing said documentin a sealed envelope or package with first-class postage thereon fully prepaid, and placed the envelope or package for collection and mailing today with the United States Postal Service at San Francisco, California addressed as set forth below: Monique Olivier, Esq. J. Erik Heath, Esq. Duckworth Peters Lebowitz Olivier LLP 100 BushStreet, Suite 1800 San Francisco, CA 94104 Aaron Schur Yelp, Inc. 140 New Montgomery Street San Francisco, CA 94105 Clerk ofthe Court Superior Court of California, County of San Francisco 400 McAllister Street San Francisco, CA 94102 Clerk of the Court California Court of Appeal, First District 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on July 19, 2017, at San Francisco, California. h e e M A A R S D S ci a t e oe s
