Martin Garbus is a maverick who loves to defend mavericks. In his four-plus decades of private practice, he has been the mouthpiece for writer Samuel Beckett, comedian Lenny Bruce,¹⁴⁶ actor Robert Redford, union organizer Cesar Chavez, director Spike Lee, Russian dissident Andrei Sakharov, Czech playwright Vaclav Havel, experimental-drug guru Timothy Leary, and Henrietta Wright, an African American who was beaten by Mississippi police in 1965 when she attempted to vote.¹⁴⁷ He is the underdog’s lawyer, though his firm is upscale and his office is uptown in Manhattan. Marc Kasky, a rabble-rouser critical of exploitative power brokers, was Garbus’ kind of guy, the kind of client he could happily represent pro bono.

It almost came to that as Garbus consulted with friends and colleagues regarding the side on which to file an amicus brief in Nike v. Kasky. It was a tough call. In the end, the vote went against Kasky and with the First Amendment. Garbus’ firm filed on behalf of advertising associations in support of Nike. Incredibly, Martin Garbus elected not to sign onto the amicus brief filed by his firm. For whatever reason, he decided that Nike v. Kasky was not the case in which he wanted to be a “friend of the Court.” Where others came forward, Garbus stood back.

But the lineup of amicus lawyers was nonetheless quite spectacular. On Kasky’s side¹⁴⁸ the names included:

· Alan B. Morrison, Public Citizen Litigation Group¹⁴⁹

· David Vladeck, Public Citizen Litigation Group¹⁵⁰

· Professor Erwin Chemerinsky, University of Southern California School of Law¹⁵¹

· Professor Catherine Fisk, Loyola University, Los Angeles, School of Law¹⁵²

· Professor Thomas McGarity, University of Texas School of Law¹⁵³

· Professor Tamara R. Piety, University of Tulsa College of Law¹⁵⁴

On Nike’s side, the names included:

· Kenneth Starr, Kirkland & Ellis¹⁵⁵

· Bruce Johnson, Davis Wright Tremaine¹⁵⁶

· David H. Remes, Covington & Burling¹⁵⁷

· Professor Robert M. O’Neil, The Thomas Jefferson Center for the Protection of Free Expression¹⁵⁸

· Professor Martin Redish, Northwestern University School of Law¹⁵⁹

There are friends of the Court, and there are friends of the Court. But there is no better friend than the Solicitor General of the United States, a friend who always has the ears of the Justices. It was, Nike must have thought, a good omen: The United States filed a brief in support of the company. Incredible! The lawyers for the federal regulatory system, including the Federal Trade Commission, were siding with a corporate entity that called on the Court to diminish regulatory powers. And that such a brief would be filed over the signature of Solicitor General Theodore Olson, a highly able and respected lawyer, was better still.

But the omen proved to be a mixed blessing, if only given the concessions that were made in the government’s brief. As noted above, Olson argued that “[r]epresentations concerning Nike’s means of production” were not beyond the pale of regulation, the First Amendment notwithstanding.¹⁶⁰

Moreover, the government’s brief hedged its bets and urged a rather narrow ground for reversing the ruling of the California Supreme Court:

The First Amendment permits reasonable regulation of speech that is false, deceptive, or misleading, through the mechanisms of private causes of action and direct government regulation. A traditional common-law private suit for misrepresentation presents no First Amendment difficulties because it contains features that obviate potential constitutional concerns. A private plaintiff who seeks relief for misrepresentation must show that he reasonably relied on the false statement and consequently suffered actual injury. Those requirements limit the prospect of liability to cases that implicate the government’s interests in preventing fraud and compensating injured individuals, and thereby ensure that the lawsuit does not chill protected expression. Similarly, the government’s traditional means of regulating false advertising present no First Amendment difficulties. The government’s enforcement powers are constrained by statutory and institutional limitations that avoid intrusions on protected speech.¹⁶¹