Dead Man, No Talking?

Can the Supreme Court still rule on Johnnie Cochran’s freedom-of-speech case?

Gone, but still in litigation

Johnnie Cochran, the all-star attorney who defended high-profile clients such as O.J. Simpson, Michael Jackson, and Snoop Dogg, died yesterday of a brain tumor. Just last Tuesday, the U.S. Supreme Court heard arguments in Tory v. Cochran, a case in which the famous lawyer was the respondent. Will the court go ahead and make a ruling now that he’s dead?

Maybe. For a criminal case, there would be no ambiguity—the death of a criminal defendant makes a case moot. But Tory v. Cochran is a civil case concerning freedom of speech, and the way in which it was decided by lower courts makes it quite peculiar.

The story begins 22 years ago, when Cochran represented Ulysses Tory in a personal-injury lawsuit arising from a shootout with the Los Angeles Police Department. Tory never got any money from the suit and claimed that Cochran had conspired against him with the city of Los Angeles. He eventually demanded $10 million “or very close to it” from Cochran, who refused to pay.

By the late ‘90s, Tory and a group of hired hands were picketing outside of Cochran’s office, holding up signs that said things like “Hey Johnnie, How Much Did They Pay $ $ You to F— Me?” In 2000, Cochran filed suit against Tory for defamation and won. (Tory chose to represent himself.) As a result, the California court ordered Tory to stop harassing Cochran, to stay 300 yards away from him or his office, and never to speak about him or his law firm again in a public forum.

The case before the Supreme Court concerns this last provision and whether it restricts Tory’s freedom of speech too broadly. Here’s what’s so peculiar: The injunction does not limit the restriction of Tory’s speech to defamatory speech. If it had, the case would be moot, since you cannot defame a dead man. And the injunction also did not limit the restriction of speech to Cochran’s lifetime.

On the face of it, then, the case is still kicking. Even though Cochran is dead, Tory may not speak about him or his law firm in any public forum, and he still can’t come within 300 yards of Cochran’s law firm. Does that mean the Supreme Court will make a ruling?

It’s a tricky situation. The court is bound by Article III of the Constitution, which makes its power contingent on the existence of a real case or controversy. On the other hand, the court can review cases that are apparently moot: In Roe v. Wade, for example, it made a ruling in spite of the fact that Jane Roe was no longer pregnant.

If the justices decide that Tory v. Cochran is moot, they can dismiss the case or send it back to the state courts and have them sort things out. (If it were originally a federal case, they could order the lower court to dismiss the case.) If they decide that it’s not moot, they can go ahead and make a ruling, with Cochran’s estate as a substitute party.

So far, the court appears to be waiting for the two sides to decide whether they think the case is moot—but it’s not clear what those decisions would mean. Even if Tory pursued the matter, Cochran’s widow could end the injunction.

Next question?

Explainer thanks Tom Goldstein of Goldstein & Howe.