A Term highlighted by constitutional rulings of lasting
significance also produced one monumental
disappointment--a dud . . . .
--Thomas C. Goldstein¹

Nike, Inc. v. Kasky² was the landmark First Amendment case that wasn't.

What a specter: a bevy of renowned lawyers, thousands of pages of briefs, extended time for oral arguments, incessant hype, almost unprecedented editorial buzz, and endless pundit predictions. When the jurisdictional dust finally settled, however, the telling United States Supreme Court caption read: "The writ of certiorari is dismissed as improvidently granted."³ Nike had fallen from the "cert. granted" docket; the mighty cause of the winged-corporate goddess had collapsed. Myth had succumbed to reality, the reality that corporate speakers could be held to legal account for "political " statements let loose in America 's marketplace of ideas.

Yet there is a lesson here, in this landmark that remains a controversy while not a significant precedent. Actually, there are several lessons—about law and how it is practiced, about how procedure can trump substance, about the character and future of the First Amendment, and about how all of this plays out in the lives of foreign workers, American consumers, and those for whom the majesty of the law is never quite majestic enough. Such themes and others, enveloped in legal doctrine, constitutional theory, commercial reality, and political debate, inform the discourse of this Symposium. That discourse explains why Nike v. Kasky is a rich case study in how American law does and does not work.

Some of the contributors to this Symposium sided in court with Nike, some with Kasky, and some stayed out of the litigation altogether, for whatever reasons. Hence, in what follows, the reader is offered a surfeit of views from practitioners, partisans, and professors. This combination of practice and theory provides something frequently not found in law reviews: real-world law lessons coupled with conceptual prophecies of where the course of the law is tending. It is, we think, a good mix.

This is a story about the First Amendment. It begins in a humble place, a shoe factory in Vietnam; and its beginnings belie its complexity. The story is colored by good and bad, right and wrong, knowledge and ignorance, political rancor and corporate PR, and just enough doubt to give legal theorists and practitioners pause.

The Nike story pits a strong-willed political activist against a multi-national corporation. The conflict centered on charges of "sweatshop " labor practices abroad. As it escalated, many notables were drawn into the fray—Philip Knight, Nike 's CEO; Bob Herbert, New York Times columnist; Michael Jordan, basketball superstar; Andrew Young, former U.N. ambassador; Walter Dellinger, former U.S. acting Solicitor General; and Laurence Tribe, noted Harvard law professor, among others. It was a controversy argued in the press and in the courts.

"[T]he most powerful actors in our society - largely corporations - are wielding the First Amendment in ways that often seem counter to [progressive] goals."⁴ So warned the editors of The Nation in July, 1997, in a symposium entitled "Speech & Power." The problem, in the progressive eye, was that yesterday 's free speech principles have become today 's power principles - for the powerful. The First Amendment, so the charge goes, has become yet another weapon in the arsenal of the captains of commerce, a weapon to be used against the powerless. For that arsenal, Nike was a case marked with dangerous potential. The Supreme Court decision might move away from the liberal First Amendment, intended to empower the powerless, and towards a laissez-faire First Amendment, intended to embolden the powerful.

For some liberals, libertarians, and conservatives, the Nike controversy had less to do with corporate power than with constitutional principle. After all, the great marketplace-of-ideas principle is betrayed when corporate critics hurl barbs but corporations cannot speak back. Moreover, could the First Amendment meaningfully exist in a capitalist culture without safeguarding corporate speech? Accordingly, these free-speech advocates also saw great potential in Nike, but of an affirmative nature. That is, they hoped the case would become the New York Times Co. v. Sullivan⁵ counterpart for commercial speech.