Tory v. Cochran,
544 U.S. 734 (2005)

Annotate this Case
  • Syllabus  | 
  • Opinion (Stephen G. Breyer)  | 
  • Dissent (Clarence Thomas)



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 insults, 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 Appeal affirmed, and this Court granted certiorari. After oral argument, Cochran’s counsel informed the Court of Cochran’s death, moved to substitute 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 underlying rationale. Since picketing Cochran and his law offices while engaging 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 injunction amounts to an overly broad prior restraint upon speech, lacking plausible justification. Pp. 2–4.

Vacated and remanded.

   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.

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