In other words, what was problematic about this case was the fact that it was brought by a private party, purportedly acting on the public’s behalf, rather than by a state attorney general, whose office was regulated by law in such a way as to prevent the kind of abuses evidenced in this case. Of course, if that problem was cured and the same action were to be brought by a state attorney general, then there would be no legal problem in the Solicitor General’s view. The argument could be enough to help Nike, but it offered little consolation to those who expected a more protective commercial-speech brief to be filed by the Administration.
The Solicitor General’s argument was undercut in some people’s minds by the amicus brief submitted on Kasky’s behalf by the attorneys general of eighteen states and of the Commonwealth of Puerto Rico. In that brief, California Attorney General Lockyer argued:
The California Supreme Court properly found that a seller may propose a commercial transaction with statements about factors other than product characteristics; for example, a seller may focus on who, how, or where a product is made. Specific statutes have long prohibited misrepresentations about the circumstances or context of a product’s manufacture or sale. For example, state law proscribes false or misleading statements regarding whether products were made by blind workers, American Indians, or union labor. Neither the source, sponsorship of a product, nor the affiliation or certification of a seller may be misrepresented. Special rules also govern untrue or misleading statements regarding how a product was produced, such as claims that a product was made or can be used or disposed in an environmentally sound manner or that food is ‘organic’ or ‘dolphin safe.’ Various laws ensure that where a product was produced is honestly stated.162
This argument suggested that an action such as Kasky’s might well be commenced by a state attorney general.163 In Lockyer’s mind, consumers needed to be protected because:
Consumers may prefer to purchase products from companies that protect the environment, support the symphony or the local high school basketball team, avoid cruelty to animals in product testing, underwrite tutoring programs for inner-city youth, or finance cancer research. A false statement of fact that products were produced by disabled army veterans or were not produced by the forced labor of Chinese Christian religious dissidents may be more important to consumers than price or product quality in determining whether to purchase a product. Indeed, Nike’s alleged misleading press releases and public letters about its labor practices were created directly to ‘advance an economic transaction’ with consumers concerned about the labor conditions in overseas factories.164
But any protection consumers may need, argued Bruce Johnson on behalf of the media, was ably and fully provided in this case by the print press and the electronic media. As Johnson and the co-authors of his amicus brief put it:
The record and the press coverage related to this case underscore the imprudence of the California Supreme Court’s decision. Although the purported linchpin of Respondent’s complaint is that Nike has deceived the public by making misleading statements to the press regarding its business operations, Respondent himself acknowledges that ‘[t]he media have continued to expose Nike’s actual practices.’ Indeed, a review of contemporaneous press coverage of Nike reveals that every single one of Nike’s allegedly misleading statements either was never reported or was challenged by counterspeech in the same media outlet. This is what one would expect regarding an issue of intense public concern, and it leaves one at a loss as for why state regulation is necessary or appropriate in this area.165
Members of Congress, specifically Representatives Dennis J. Kucinich (D-Ohio), Bernard Sanders (D-Vt.), Corrine Brown (D-Fla.), and Bob Filner (D-Ca.), weighed in on Kasky’s behalf, with Professors Erwin Chemerinsky and Catherine Fisk serving as their counsel.166 Their brief was not confident of the power of the First Amendment marketplace, even when aided by the press, to safeguard consumers: “The distinction between commercial and non-commercial speech is important and necessary because the marketplace of ideas will not protect consumers from the harms of false statements.”167
