Cochran’s Libel Suit Against Columnist Rejected

A federal judge in Los Angeles on Monday dismissed a libel suit that attorney Johnnie L. Cochran Jr. had filed against a New York Post columnist who had written that Cochran “will say or do just about anything to win, typically at the expense of the truth.”

The statement, U.S. District Judge Kim M. Wardlaw ruled, was simply the columnist’s opinion and, therefore, was protected by the 1st Amendment.

“All are free to disagree with her views” about Cochran, Wardlaw wrote, referring to columnist Andrea Peyser. “But Peyser’s right to express her opinion on the subject is absolutely protected by the 1st Amendment.”

Peyser wrote the Aug. 29, 1997, column shortly after Cochran became one of the attorneys for Haitian immigrant Abner Louima, who allegedly was subjected to torture by New York police officers. The column was headlined “Nightmare Team is taking over,” a sarcastic reference to the “Dream Team” of lawyers who secured a 1995 acquittal for O.J. Simpson on charges that he murdered his ex-wife, Nicole Brown Simpson, and her friend Ronald L. Goldman.

Peyser urged Louima, a clearly sympathetic plaintiff in a police brutality case, to be cautious about hiring Cochran, who had just visited him in a Brooklyn Hospital and given him an autographed copy of his book, “Journey to Justice.”

The columnist asserted that Louima “deserves better” than Cochran, who, according to her, had “cynically turned West Coast justice on its ear in service of the guilty,” and was part of a team of “legal scoundrels” who “dazzled a Los Angeles jury into buying his fantasy tale of a citywide police conspiracy, in order to set free a celebrity who slaughtered his ex-wife.” Cochran, she wrote, had “exploited fears of police brutality--culminating in the Rodney King beating--to concoct a scenario in which O.J. was the victim.”

Cochran’s suit, filed last December, alleged that Peyser’s column was false and defamatory because it accused him “of unethical conduct in his profession” and implied that he has “a record of unethical conduct.”

The key legal issue in the case was whether Peyser’s statement was pure opinion, as her lawyers asserted, or if it was subject to being proved false, as Cochran’s attorneys contended.

Legally, statements of opinion cannot be the subject of libel suits because, courts have held, an opinion cannot be proved true or false. But courts have held that a person can sue over a statement that is partly opinion and partly a claim of fact.

In one 1990 case that Wardlaw noted, for example, the U.S. 9th Circuit Court of Appeals allowed a suit against “60 Minutes” commentator Andy Rooney, who had stated that a rain repellent product “didn’t work.”

That was a case where the “statement is provably true or false because a product can be tested objectively to determine whether it performs the functions that it claims to perform,” she wrote.

In this case, by contrast, “no one can mistake Peyser’s column for anything more than an elucidation of her opinion that Cochran, in view of his defensive strategy in the Simpson case, should not participate in the Louima trial,” Wardlaw wrote.

Quoting from Cochran’s closing argument in Simpson’s case, she added, “That Cochran distilled his defense theory into a slogan (‘If it doesn’t fit, you must acquit,’) that may be perceived by some to have wrongly resulted in a defense verdict, is quintessentially a proper subject of fair comment.”

The judge also said that Peyser’s statement “cannot reasonably be read as an allegation that Cochran committed a serious ethical breach. At most, it conveys that Cochran performed well the role of a criminal defense lawyer--successfully developing a theory to explain the facts and tell a logical story to absolve his client.”

Additionally, Wardlaw noted that the column was “formatted as opinion rather than as a standard news article. It is inset with the author’s photograph, and her name appears in large, bold lettering. Thus, the author’s persona is highlighted, eclipsing, if not sharing, the spotlight on the story itself.”

Peyser said that she was pleased that “the judge upheld what I said at the onset--which is that the column is my opinion. The last time I checked, Americans have the right to express opinions.”

Cochran, who divides his time between Los Angeles and New York, is host of a TV show, “Cochran and Company,” on Court TV. His secretary said he was traveling and could not be reached for comment.

His attorney, Deborah Drooz of Los Angeles, said she disagreed with parts of Wardlaw’s analysis on the constitutional issue. “I think it should have come down the other way. We’ll see what the client has to say as to where we go from here.”