Constitution Anyone?, Part V.

This post updates our preview (here) of the U.S. Supreme Court case concerning the injunction Johnnie Cochran obtained against a picketer. The Supreme Court just heard arguments, and we'll provide quotes (below) of the more entertaining exchanges.

By way of background, Ulysses Tory did not appreciate Mr. Cochran's performance in the O.J. Simpson case or something else (actually, Mr. Tory was a client). So, he took to picketing Mr. Cochran's office with signs calling him "a crook, a liar and a thief" and a "bad boy". (J. Steele, "Speaking of Johnnie", California Lawyer, February 2005, p. 12.)

Another sign asked the age-old riddle: "Can a lawyer go to HEAVEN? Luke 11:46." (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.)

A court ordered the picketer to permanently refrain from saying anything about Mr. Cochran--good or bad. (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.) Specifically, the order forbade Mr. Tory from (1) picketing Mr. Cochran's office and (2) 'orally uttering' any statements in a public forum about him or anyone at his firm. (Id.)

"During oral arguments on Tuesday, the justices grappled with the absurdity of a ruling so sweeping that it not only prevents Tory from saying things that are demonstrably true about Cochran, but could reasonably be interpreted as a gag order on Tory's attorneys. Referring to that peculiar possibility, Justice David Souter asked Chemerinsky: 'You're in trouble too, aren't you?' The question said it all.

"At another point in the arguments, Justice Sandra Day O'Connor turned to Cochran's lawyer, Jonathan Cole, and openly announced what all nine justices knew — the order is 'clearly overbroad.' Frustrated, she then asked, 'What are you going to do about it?' Sensing trouble, Cole suggested that the order could be more narrowly tailored. Amazed by the concession, Justice Antonin Scalia chimed in: 'You're conceding that it's overbroad?' Cole backed away, arguing that although he did not think that to be the case, the justices apparently did. Then, by way of feigned flattery, Scalia added: 'Very perceptive.'" (R.K.L. Collins, "Johnnie Cochran, Word Cop", L.A. Times, March 27, 2005.)

With even greater confidence, I'll reiterate my prediction from January: reversal or modification.