Now it was the Respondent’s turn. “Mr. Hoeber, we’ll hear from you,”¹⁸⁷ declared the Chief Justice. That was his cue, his formal invitation to approach the lectern at 11:43 a.m. Could Hoeber do here what he had done in the California Supreme Court and steal an expected victory away from Nike? Sure of himself and in his cause, he proceeded to argue his first case in the highest Court in the land.

Hoeber insisted that Nike’s contested claims involved verifiable facts about its production processes and, as such, amounted to commercial speech. “[T]he company is making representations to consumers about its own practices for the purpose of convincing those consumers that they should buy the company’s products, so it is commercial speech in that sense.”¹⁸⁸ Nike’s statements involved no significant public debate: “[T]he only debate that’s in [Kasky’s] complaint, is the debate over what, in fact, was going on in the shoe factories, what in fact, were the conditions. . . . [That is a far cry from] a public debate about a larger public issue.”¹⁸⁹

Hoeber’s characterizations raised the cerebral heat a bit, as one Justice after another heaped fuel onto the fire of skepticism. The Chief Justice questioned whether the doctrinal distinctions offered by Kasky’s counsel made any difference “for First Amendment purposes.”¹⁹⁰ Justice O’Connor challenged whether any of Nike’s statements were “advertising in the true sense of that term.”¹⁹¹ Justice Breyer disputed the idea that Nike’s rhetoric could be disposed of as simply commercial: “[T]he truth of the matter is, I think it’s both. You know, it’s both. They’re both trying to sell their product and they’re trying to make a statement that’s relevant to a public debate.”¹⁹² In the face of this barrage, Hoeber held his ground and urged the Court to expand the definition of commercial speech to cover “a lot of promotions and a lot of communications that consumers rely on.”¹⁹³ That argument carried no force for Justice Scalia: “Yes. It’s not a perfect world.”¹⁹⁴

Based on the oral arguments alone, the best refuge for Marc Kasky was, perhaps, a jurisdictional one—that the Court might reconsider its grant of certiorari in this case. As to the merits of Hoeber’s First Amendment arguments, the Justices did not seem overly impressed. They might have left the audience wondering whether Nike v. Kasky¹⁹⁵ would become to First Amendment law what DeFunis v. Odegaard¹⁹⁶ had become to affirmative action law: an unrealized landmark.

In his three minutes of rebuttal, Laurence Tribe once again hit hard on the use of the California statutory scheme to “stifle and silence the public debate.” The consumer-protection law was thus transformed into “a conversation-stopper,” something “extraordinary.” He concluded by pointing to the burdens that the law placed on media: “If you look at the media brief [written by Bruce Johnson and others], the media are now saying that businesses around the world are already afraid to communicate with us because California may get them . . . .”¹⁹⁷

Chief Justice Rehnquist: Thank you, Mr. Tribe. The case is submitted.¹⁹⁸