Friends of the Court

Write an opinion, and read it a few years later when it is dissected in the briefs of counsel.
You will learn for the first time the limitations of the power of speech.

-- Benjamin N. Cardozo¹³⁷

Had Justice Cardozo participated in the Nike case, he might have marveled at how differently the First Amendment issue was presented and how dissimilarly the law was characterized. That diversity of perspectives was particularly apparent in the 31 amicus curiae, or “friend of the court,” briefs filed with the United States Supreme Court.¹³⁸

For Martin Garbus, a First Amendment lawyer,¹³⁹ the issue was a vintage free-speech one: “This case raises the question of whether a corporation can be subject to litigation and possible liability . . . for engaging in public discourse . . . where its speech makes no mention of the quality or price of its products.”¹⁴⁰ By contrast, for Patrick Gallagher, lead counsel for the Sierra Club, the issue had nothing to do with censorship and everything to do with a falsehood perpetrated on the public. Hence, he couched the issue this way:

Whether a state government can regulate a corporation’s false statements about its labor practices, that were made in order to improve its public image and induce consumers to purchase its products, because commercial speech restrictions are permissible under the First Amendment to ensure the public receives truthful information about corporate products and services?¹⁴¹

As to the law, ACLU counsel Mark J. Lopez echoed what Garbus had said: “The decision below improperly extends the commercial speech doctrine to justify the suppression of speech in violation of core First Amendment principles.”¹⁴² To the contrary, Bill Lockyer, California’s Attorney General, saw the controlling precedents in the commercial speech line of cases bearing upon fraud and falsehoods. Although the First Amendment protects commercial speech from unwarranted government regulation, according to Lockyer, “the Court has never wavered in holding that ‘[t]he States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.’”¹⁴³

Other lawyers, such as former Solicitor General Kenneth W. Starr, representing the Chamber of Commerce, considered the Court’s commercial speech precedents in sore need of clarification, albeit in Nike’s favor: “For many years, the Court has sent conflicting signals on the definition of ‘commercial speech’ and has allowed the lower courts to take divergent approaches on this issue.”¹⁴⁴

Indeed, for Deborah J. La Fetra, counsel for the Pacific Legal Foundation and one of the contributors to this Symposium, the state of the commercial speech doctrine was dizzying. Her argument is best set out by way of extended quotation:

Over the past 60 years, this Court’s approach to speech uttered by business interests has ranged from zero protection (Valentine v. Chrestensen, 316 U.S. 52 (1942)), to very high protection (Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)), to a four-part test (Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564 (1980)), which has itself undergone revision (Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 480 (1989) (upholding a regulation outlawing Tupperware parties on a university campus); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (when a regulation constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product and the ban serves an interest unrelated to consumer protection, it will be subject to a heightened form of First Amendment scrutiny akin to strict scrutiny.)). There have been conflicting analyses depending on the speaker (Bates v. State Bar, 433 U.S. 350, 384 (1977), and Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978) (lesser protection accorded to attorney solicitations)) and the social worth of the activity promoted (Compare Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 342, 348 (1986) (restrictions on advertisements for legal gambling facilities do not violate the first amendment) with Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980) (restrictions on solicitations for charity struck down)).¹⁴⁵

In the toss and turn of First Amendment arguments, going this way or that, somehow and somewhere there was likely to be a direction that the Supreme Court would favor. Whatever that direction might be, the amici generally shared the hope that it would be a clear and decisive one, offering a guided path through the brambles of the commercial speech doctrine.