The Court Acts
Free speech is the loser here.
-- Ann Brick 207
[I]t will inevitably be overturned by the U.S. Supreme Court.
-- Thomas Goldstein 208
The October 2002 Court Term was a blockbuster one. Between October 2002 and June 2003, the Justices had wrestled with complex and controversial questions. They had ruled on affirmative action,209 gay rights,210 cross burning,211 campaign financing,212 the internet and child pornography,213 family-medical leave,214 and the constitutionality of the 1998 Copyright Term Extension Act.215 By any measure, this was a term to remember.
“Opinion days” are quite often frantic times around the Court, for it is on those days that the Court’s press corps hovers around the Public Information Office to receive copies of the Court’s latest opinions. The press receives no advance copies of the decisions. Not until 10:00 a.m. on an opinion day are the opinions made public. At that time, many reporters return hurriedly to their assigned cubicles in the nearby pressroom on the ground floor. Most of them have but minutes to digest and then explain what the Court has just decided. Indeed, the press had much to write about that term, but not about commercial speech.
Among the five opinions handed down on June 26, 2003, the least important was the one in Case No. 02-575, Nike, Inc. v. Kasky. Sixty-four days after the matter had been argued, the Court issued its one-line per curiam opinion: “The writ of certiorari is dismissed as improvidently granted.”216
They beat the odds. Paul Hoeber, Alan Caplan, and their lawyerly cohorts had defeated the great Nike. They had snatched victory away from their powerful rival, much as they had done in the California Supreme Court. Though they had ample reason to be gleeful, the case was not over yet. The legal fight would now have to return to the California courts.
With the Supreme Court’s dismissal of its writ, Nike, Inc. v. Kasky ironically became a decision suited, not for First Amendment casebooks, but for Federal Courts casebooks. Given the jurisdictional debates at the core of both Justice Steven’s concurring opinion (joined by Ginsburg and Souter) and Justice Breyer’s opinion dissenting from the dismissal (joined by O’Connor), it was apparent that the procedural hurdles that had dominated the discourse at oral arguments became insurmountable obstacles for a seven-member majority of the Court.217 Not even Justice Thomas, the Court’s most ardent defender of heightened protection for commercial speech,218 elected to leap over the procedural barriers to decide this significant corporate speech case.
Notably, a majority of the Court—the three concurring and the two dissenting Justices—rejected the California Supreme Court’s holding that Nike’s communications could be labeled pure commercial speech. Justice Steven’s concurring opinion declared that “the speech at issue represents a blending of commercial speech, noncommercial speech and debate on an issue of public importance.”219 Likewise, Justice Breyer’s dissenting opinion concluded that “the communications at issue are not purely commercial in nature,” but rather are best “characterized as involving a mixture of commercial and noncommercial (public-issue-oriented) elements.”220
