TORY et al. v. COCHRAN

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734 OCTOBER TERM, 2004
Syllabus
TORY et al. v. COCHRAN
certiorari to the court of appeal of california,
second appellate district
No. 03–1488. Argued March 22, 2005—Decided May 31, 2005
In a state-law defamation action filed by attorney Johnnie L. Cochran, Jr.,
a California trial court found that petitioner Tory, assisted by petitioner
Craft and others, had, inter alia, falsely claimed that Cochran owed
him money, picketed Cochran’s office with signs containing insults and
obscenities, and pursued Cochran while chanting similar threats and in-
sults, in order to coerce Cochran into paying Tory money to desist from
such libelous and slanderous activity. Because Tory indicated that he
would continue to engage in the activity absent a court order, the court
permanently enjoined petitioners and their agents from, among other
things, picketing, displaying signs, and making oral statements about
Cochran and his firm in any public forum. The California Court of Ap-
peal affirmed, and this Court granted certiorari. After oral argument,
Cochran’s counsel informed the Court of Cochran’s death, moved to sub-
stitute Cochran’s widow as respondent, and suggested that the case be
dismissed as moot. Petitioners agreed to the substitution, but denied
that the case was moot.
Held: Cochran’s widow is substituted as respondent, but the case is not
moot. Despite Cochran’s death, the injunction remains in effect.
Nothing in its language says to the contrary. Cochran’s counsel argues
that the injunction is still necessary, valid, and enforceable, and no
source of California law says that it automatically became invalid upon
Cochran’s death. As this Court understands that law, a person cannot
definitively know whether an injunction is legally void until a court has
ruled that it is. Given this uncertainty, the injunction here continues
significantly to restrain petitioners’ speech, thus presenting an ongoing
federal controversy. Cochran’s death, however, makes it unnecessary
for this Court to explore petitioners’ basic claims. Rather, the Court
need only point out that the injunction, as written, has lost its underly-
ing rationale. Since picketing Cochran and his law offices while engag-
ing in injunction-forbidden speech could no longer coerce Cochran to
pay for desisting in this activity, the grounds for the injunction are much
diminished or have disappeared altogether. Consequently the injunc-
tion amounts to an overly broad prior restraint upon speech, lacking
plausible justification. Pp. 736–739.
Vacated and remanded.

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735 Cite as: 544 U. S. 734 (2005)
Opinion of the Court
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ.,
joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined,
post, p. 739.
Erwin Chemerinsky argued the cause for petitioners.
With him on the briefs were Gary L. Bostwick and Jean-
Paul Jassy.
Jonathan B. Cole argued the cause for respondent. With
him on the brief were Karen K. Coffin and Susan S. Baker.*
Justice Breyer delivered the opinion of the Court.
Johnnie Cochran brought a state-law defamation action
against petitioner Ulysses Tory. The state trial court deter-
mined that Tory (with the help of petitioner Ruth Craft and
others) had engaged in unlawful defamatory activity. It
found, for example, that Tory, while claiming falsely that
Cochran owed him money, had complained to the local bar
association, had written Cochran threatening letters de-
manding $10 million, had picketed Cochran’s office holding
up signs containing various insults and obscenities; and, with
a group of associates, had pursued Cochran while chanting
similar threats and insults. App. 38, 40–41. The court con-
cluded that Tory’s claim that Cochran owed him money was
without foundation, that Tory engaged in a continuous pat-
tern of libelous and slanderous activity, and that Tory had
*Briefs of amici curiae urging reversal were filed for the American
Federation of Labor and Congress of Industrial Organizations by Jona-
than P. Hiatt, James B. Coppess, and Laurence Gold; for the Thomas Jef-
ferson Center for the Protection of Free Expression by Robert M. O’Neil
and J. Joshua Wheeler; for Alfred L. Brophy et al. by Michael I. Meyerson,
pro se; and for Michelangelo Delfino et al. by Jon B. Eisenberg and Jeremy
B. Rosen.
Kelli L. Sager, Jeffrey L. Fisher, Jerry S. Birenz, Richard A. Bernstein,
Jonathan Bloom, Harold W. Fuson, Jr., Thomas B. Kelley, Steven D.
Zansberg, Eve Burton, Jonathan R. Donnellan, Karlene Goller, George
Freeman, Lucy A. Dalglish, and Eric N. Lieberman filed a brief for Los
Angeles Times Communications LLC et al. as amici curiae.

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736 TORY v. COCHRAN
Opinion of the Court
used false and defamatory speech to “coerce” Cochran into
paying “amounts of money to which Tory was not entitled”
as a “tribute” or a “premium” for “desisting” from this libel-
ous and slanderous activity. Id., at 39, 42–43.
After noting that Tory had indicated that he would con-
tinue to engage in this activity in the absence of a court
order, the Superior Court issued a permanent injunction.
The injunction, among other things, prohibited Tory, Craft,
and their “agents” or “representatives” from “picketing,”
from “displaying signs, placards or other written or printed
material,” and from “orally uttering statements” about
Johnnie L. Cochran, Jr., and about Cochran’s law firm in “any
public forum.” Id., at 34.
Tory and Craft appealed. The California Court of Appeal
affirmed. Tory and Craft then filed a petition for a writ of
certiorari, raising the following question:
“Whether a permanent injunction as a remedy in a defa-
mation action, preventing all future speech about an ad-
mitted public figure, violates the First Amendment.”
Pet. for Cert. i.
After oral argument, Cochran’s counsel informed the
Court of Johnnie Cochran’s recent death. Counsel also
moved to substitute Johnnie Cochran’s widow, Sylvia Dale
Mason Cochran, as respondent, and suggested that we dis-
miss the case as moot. Tory and Craft filed a response
agreeing to the substitution of Ms. Cochran. But they de-
nied that the case was moot.
We agree with Tory and Craft that the case is not moot.
Despite Johnnie Cochran’s death, the injunction remains
in effect. Nothing in its language says to the contrary.
Cochran’s counsel tells us that California law does not recog-
nize a “cause of action for an injury to the memory of a
deceased person’s reputation,” see Kelly v. Johnson Pub. Co.,
160 Cal. App. 2d 718, 325 P. 2d 659 (1958), which circum-
stance, counsel believes, “moots” a “portion” of the injunc-

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737 Cite as: 544 U. S. 734 (2005)
Opinion of the Court
tion (the portion “personal to Cochran”). Respondent’s Sug-
gestion of Death, etc., 4 (emphasis added). But counsel adds
that “[t]he [i]njunction continues to be necessary, valid and
enforceable.” Id., at 9. The parties have not identified, nor
have we found, any source of California law that says
the injunction here automatically becomes invalid upon
Cochran’s death, not even the portion personal to Cochran.
Counsel also points to the “value of ” Cochran’s “law prac-
tice” and adds that his widow has an interest in enforcing
the injunction. Id., at 11–12. And, as we understand Cali-
fornia law, a person cannot definitively know whether an in-
junction is legally void until a court has ruled that it is. See
Mason v. United States Fidelity & Guaranty Co., 60 Cal.
App. 2d 587, 591, 141 P. 2d 475, 477–478 (1943) (“[W]here the
party served believes” a court order “invalid he should take
the proper steps to have it dissolved”); People v. Gonzalez,
12 Cal. 4th 804, 818, 910 P. 2d 1366, 1375 (1996) (“[A] person
subject to a court’s injunction may elect whether to chal-
lenge the constitutional validity of the injunction when it is
issued, or to reserve that claim until a violation of the injunc-
tion is charged as a contempt of court”). Given the uncer-
tainty of California law, we take it as a given that the injunc-
tion here continues significantly to restrain petitioners’
speech, presenting an ongoing federal controversy. See,
e. g., Dombrowski v. Pfister, 380 U. S. 479, 486–487 (1965);
NAACP v. Button, 371 U. S. 415, 432–433 (1963). Conse-
quently, we need not, and we do not, dismiss this case as
moot. Cf. Firefighters v. Stotts, 467 U. S. 561, 569 (1984)
(case not moot in part because it appears from “terms” of
the injunction that it is “still in force” and “unless set aside
must be complied with”).
At the same time, Johnnie Cochran’s death makes it un-
necessary, indeed unwarranted, for us to explore petitioners’
basic claims, namely, (1) that the First Amendment for-
bids the issuance of a permanent injunction in a defamation
case, at least when the plaintiff is a public figure, and (2) that

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738 TORY v. COCHRAN
Opinion of the Court
the injunction (considered prior to Cochran’s death) was
not properly tailored and consequently violated the First
Amendment. See Brief for Petitioners ii, iii. Rather, we
need only point out that the injunction, as written, has now
lost its underlying rationale. Since picketing Cochran and
his law offices while engaging in injunction-forbidden speech
could no longer achieve the objectives that the trial court
had in mind (i. e., coercing Cochran to pay a “tribute” for
desisting in this activity), the grounds for the injunction are
much diminished, if they have not disappeared altogether.
Consequently the injunction, as written, now amounts to an
overly broad prior restraint upon speech, lacking plausible
justification. See Nebraska Press Assn. v. Stuart, 427 U. S.
539, 559 (1976) (“[P]rior restraints on speech and publication
are the most serious and the least tolerable infringement on
First Amendment rights”); Pittsburgh Press Co. v. Pitts-
burgh Comm’n on Human Relations, 413 U. S. 376, 390
(1973) (a prior restraint should not “swee[p]” any “more
broadly than necessary”). As such, the Constitution forbids
it. See Carroll v. President and Comm’rs of Princess
Anne, 393 U. S. 175, 183–184 (1968) (An “order” issued in
“the area of First Amendment rights” must be “precis[e]”
and narrowly “tailored” to achieve the “pin-pointed objec-
tive” of the “needs of the case”); see also Board of Airport
Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569,
575, 577 (1987) (regulation prohibiting “all ‘First Amendment
activities’ ” substantially overbroad).
We consequently grant the motion to substitute Sylvia
Dale Mason Cochran for Johnnie Cochran as respondent.
We vacate the judgment of the California Court of Appeal,
and we remand the case for proceedings not inconsistent
with this opinion. If, as the Cochran supplemental brief
suggests, injunctive relief may still be warranted, any appro-
priate party remains free to ask for such relief. We express
no view on the constitutional validity of any such new re-

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739 Cite as: 544 U. S. 734 (2005)
Thomas, J., dissenting
lief, tailored to these changed circumstances, should it be
entered.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins,
dissenting.
I would dismiss the writ of certiorari as improvidently
granted. We granted the writ, as the Court notes, to decide
“[w]hether a permanent injunction as a remedy in a def-
amation action, preventing all future speech about an
admitted public figure, violates the First Amendment.”
Pet. for Cert. i; ante, at 736.
Whether or not Johnnie Cochran’s death moots this case, it
certainly renders the case an inappropriate vehicle for re-
solving the question presented. The Court recognizes this,
ante, at 737–738, but nevertheless vacates the judgment
below, ante, at 738. It does so only after deciding, as it must
to exercise jurisdiction, that in light of the uncertainty in
California law, the case is not moot. Ante, at 736–737;
ASARCO Inc. v. Kadish, 490 U. S. 605, 621, n. 1 (1989) (when
a case coming from a state court becomes moot, this Court
“lack[s] jurisdiction and thus also the power to disturb the
state court’s judgment”); see also City News & Novelty, Inc.
v. Waukesha, 531 U. S. 278, 283–284 (2001).
In deciding the threshold mootness issue, a complicated
problem in its own right, the Court strains to reach the valid-
ity of the injunction after Cochran’s death. Whether the
injunction remains valid in these changed circumstances is
neither the reason we took this case nor an important ques-
tion, but merely a matter of case-specific error correction.
Petitioners remain free to seek relief on both constitutional
and state-law grounds in the California courts. And, if the
injunction is invalid, they need not obey it: California does
not recognize the “collateral bar” rule, and thus permits col-
lateral challenges to injunctions in contempt proceedings.

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740 TORY v. COCHRAN
Thomas, J., dissenting
People v. Gonzalez, 12 Cal. 4th 804, 818, 910 P. 2d 1366, 1375
(1996) (a person subject to an injunction may challenge “the
constitutional validity of the injunction when it is issued,
or . . . reserve that claim until a violation of the injunction
is charged as a contempt of court”). The California courts
can resolve the matter and, given the new state of affairs,
might very well adjudge the case moot or the injunction in-
valid on state-law grounds rather than the constitutional
grounds the Court rushes to embrace. As a prudential mat-
ter, the better course is to avoid passing unnecessarily on
the constitutional question. See Ashwander v. TVA, 297
U. S. 288, 345–348 (1936) (Brandeis, J., concurring).
The Court purports to save petitioners the uncertainty of
possible enforcement of the injunction, and thereby to pre-
vent any chill on their First Amendment rights, by vacating
the judgment below. But what the Court gives with the left
hand it takes with the right, for it only invites further litiga-
tion by pronouncing that “injunctive relief may still be war-
ranted,” conceding that “any appropriate party remains free
to ask for such relief,” and “express[ing] no view on the con-
stitutional validity of any such new relief.” Ante, at 738–
739. What the Court means by “any appropriate party” is
unclear. Perhaps the Court means Sylvia Dale Mason Coch-
ran, Cochran’s widow, who has taken his place in this suit.
Or perhaps it means the Cochran firm, which has never been
a party to this case, but may now (if “appropriate”) intervene
and attempt to enjoin the defamation of a now-deceased
third party. The Court’s decision invites the doubts it seeks
to avoid. Its decision is unnecessary and potentially self-
defeating. The more prudent course is to dismiss the writ
as improvidently granted. I respectfully dissent.

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Reporter’s Note
The next page is purposely numbered 901. The numbers between 740
and 901 were intentionally omitted, in order to make it possible to publish
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