Within minutes of Tribe’s opening, the relentless questioning began; that, of course, was what he had awaited with great and confident anticipation. One lively exchange between Justice O’Connor and the counselor challenged his characterization of Nike’s statements as political speech:
Justice O’Connor: [B]ut this Court has said that even though commercial speech concerns a public issue, it’s still commercial speech . . . . We said that in Central Hudson, we said that in Bolger. . . . How do you distinguish those?
Laurence Tribe: First of all the Court has never said that the Constitution and its First Amendment are wholly invisible to commercial speech . . . . [T]he whole approach of the Court below and of Mr. Kasky was, we don’t even have to deal with your First Amendment arguments . . . because it’s misleading commercial speech.
Justice O’Connor: [N]one of the things alleged in the complaint meet the commercial speech test set out in Central Hudson? . . . Not one of them?
Laurence Tribe: That’s right, Justice O’Connor, we don’t think any of them do.180
When asked about the letter sent by Nike to university presidents and athletic department directors who purchase athletic equipment, Tribe admitted that only those communications came close to commercial speech. Even so, the letter “is an extended argument about why the claims against Nike are unfounded.” Tribe added that Kasky “does not have standing to sue on behalf of the athletic directors,” because “this is a law where you’re supposed to represent the public, not sophisticated organizations, because they might have their own interests.”181
As if the celebrated Professor’s mention of “standing” had closed one conceptual door and opened another, the Court’s line of questioning immediately moved from substance to procedure. The Justices showed a marked concern over the oddities of the California law that recognized citizens, like Kasky, as private attorneys general with the capacity to challenge corporate advertising practices without having to demonstrate that they had suffered any personalized harm. Justice David Souter directed his first query to that point:
Justice Souter: I thought your best reason was that there is . . . in fact no allegation that anyone among the plaintiffs or . . . the class on behalf of which they sue, the public, was injured in any demonstrable way. Is that the point?
Laurence Tribe: That’s probably the single strongest point . . . . [I]magine a law that said, if you utter a defamatory statement that is knowingly false, we’re going to impose a gag order. Even if the Attorney General administered it, you’d need to have a possible victim.
I mean, if someone says bad things about William Shakespeare, and the State of California decides that it is going to have a general, floating power to correct speech not connected with the regulatory responsibilities of any agency like the FTC . . . or the SEC, . . . we think that would be constitutionally infirm, but in this case, in any event, it doesn’t come close to commercial speech.182
Reserving three minutes for rebuttal, Tribe yielded the floor at 11:32 a.m. to Solicitor General Theodore Olson. When Olson had entered the courtroom earlier that morning, he had leaned over the counsel table and hugged Tribe.183 It was a gesture steeped in symbolic meaning. The last time the two lawyers had appeared together in the high Court’s chambers, they had argued on opposite sides in Bush v. Palm Beach County Canvassing Board,184 a heated constitutional struggle over the Florida 2000 presidential election dispute. Now they were allied, together defending Nike against the constraints of California’s consumer-protection law.
By its statutes, Olson contended,
California has transferred its governmental authority to regulate marketplace communications to anyone and everyone who possesses the price of the filing fee. Unelected, unaccountable private enforcers, uninhibited by established notions of concrete harm or public duty, have the power to advance their own agendas or personal ideological battles by launching complex, burdensome, and expensive litigation. . . . [Such] in terrorem effect and potential for abuse is difficult to overstate. . . . [A]nyone with a whim or a grievance and a filing fee can become a Government-licensed censor.185
Whether the Solicitor General’s argument against Kasky’s standing for lack of personalized harm had scored any points for Nike, however, was uncertain given the Justices’ reactions. “What will happen,” Justice Breyer predicted, is that consumer-protection advocates would “find in five minutes somebody who bought some Nike shoes who feels the same way . . . so you’ll just have this exact suit with a different plaintiff.”186 With his observation, Justice Breyer highlighted the narrowness of the Solicitor General’s rationale—an argument that benefited Nike this time, while preserving federal and state regulatory powers to reach any false or misleading expression.
