The Landmark that Ended in a Settlement

A Brief History

[L]eeway for untruthful or misleading expression that has been allowed in other contexts has little force in the
commercial arena.

-- Justice Harry Blackmun¹¹²

A case is only as good as its lawyers. And when you’re Nike, you can buy the best. The well-heeled shoe manufacturer did just that. To go to the Supreme Court, Nike tapped a dynamic team: Professor Laurence Tribe of Harvard Law School, Walter Dellinger of O’Melveny & Myers and formerly a professor at Duke Law School, and Thomas Goldstein of Goldstein & Howe.¹¹³ The sage constitutionalist, the seasoned scholar turned skillful lawyer, and the boy wonder of Supreme Court litigation were the trio that Nike hoped would change its fortune.

The lawyerly challenge in Nike was how to garner First Amendment protection for admittedly misleading speech, communicated by a commercial entity, concerning matters related to its product. “Until Nike,” Professor David Vladeck notes in his contribution to this Symposium, “it was accepted as orthodoxy that false statements made in the course of a commercial transaction by a seller of a product or service were not entitled to constitutional protection.”¹¹⁴ So the trio of Tribe, Dellinger and Goldstein had to craft an argument in defense of false expression alleged to be commercial. How would they do it? How would they get around the maxim that there is “no constitutional value in false statements of fact”?¹¹⁵ What could they possibly say to counter what Justice Blackmun, the godfather of commercial speech, had written in Virginia Pharmacy: that the “elimination of false and deceptive claims” contributes to the “flow of accurate and reliable information relevant to public and private decisionmaking”?¹¹⁶

As it wound its way through the legal system, Nike v. Kasky was a popular moot court problem in law schools, precisely because it tested the law’s purpose, logic, relevance, and future direction. It tumbled questions of legal precedent with social policy, questions of consumer protection with corporate expression, and questions of how to apply the niceties of established doctrine to the realities of the modern marketplace. It was, in other words, exactly the kind of cerebral challenge that the trio of Nike’s lawyers welcomed.

Two years before Nike arrived at the Supreme Court, the Justices rendered an opinion in United States v. United Foods, Inc.¹¹⁷ Therein, the majority stressed that commercial speech is speech “that does no more than propose a commercial transaction.”¹¹⁸ This echoed what the Court had said two decades earlier in Central Hudson Gas & Electric Corp. v. Public Service Commission: commercial speech is “expression related solely to the economic interests of the speaker and its audience.”¹¹⁹ This language was pregnant with possibility.