The reactions were vociferous, as free-speech advocates agonized and anti-corporate activists applauded. On the one hand, Ann Brick, the ACLU-Northern California attorney who had submitted an amicus brief to the California Supreme Court, protested that now the First Amendment was “the loser.” “[The ruling’s] impact could be very broad,” Brick warned.¹⁰⁷“If you are a business speaker, your ability to speak out on a public issue that directly affects your company is dramatically affected.”¹⁰⁸ On the other hand, Marc Kasky was jubilant. “I feel very happy about the court’s ruling,” he said. “It means a company can’t misrepresent itself and gain from it.”¹⁰⁹ Naturally, Nike’s general counsel, Jim Carter, found Kasky’s view on the ramifications of the California high court’s rulings to be short-sighted. Carter expressed his concerns in an interview with a reporter from Corporate Counsel:

Corporate Counsel: Why have media organizations been so concerned about this case?

Jim Carter: A company wouldn’t be protected by the fact that statements were made public through third parties, even reporters. So if I’m a reporter, one concern would be that I can’t get free or easy access to companies to talk to me about issues that are in this realm—globalization, corporate responsibility, whatever—because those companies would recognize that their statements, even [if made] on an informational background basis . . . could put them at risk.

Corporate Counsel: If the [U.S. Supreme] Court [were to decide] that Nike has engaged in commercial speech that can be restricted, could the company present its positions any other way?

Jim Carter: I don’t think we can. That’s really the heart of the issue here. We have a public profile. We are the case about globalization in many people’s minds, so if we’re not given this opportunity . . . to talk [about the topic], I don’t know that we have another option. . . . It’s hard to talk about globalization and factories in Asia without talking about ourselves as part of the process. And that’s what we’re asking for.¹¹⁰

While Marc Kasky and his lawyers were busy celebrating their unexpected California Supreme Court victory, New York Times columnist Bob Herbert was busy finishing his ninth column on Nike and its “sweatshop” practices. On May 6, 2002, he wrote: “Nike has wrung billions and billions of dollars from the toil and the sweat and in some cases the physical abuse of impoverished workers—mostly women—in places like China and Vietnam and Indonesia.”¹¹¹

It was another shot at the wounded Goliath, another “cheap shot” in Nike’s view. By the same token, Herbert’s column was equally objectionable to Kasky and company, as Herbert conceded: “As much as it pains me to say it, I am not in favor of stifling the speech of the loud and obnoxious and terminally exploitative Nike Corporation.” Amazing. One of Nike’s staunchest critics had become one of its defenders, but only so far as the First Amendment was concerned.

The case was now headed for the U.S. Supreme Court with, of all people, Bob Herbert’s blessing.