Whatever one makes of such statements, it is obvious that, in Justice Stevens almost schizophrenically-divided perspective, there was more to the matter:
On the other hand, the communications were part of an ongoing discussion and debate about important public issues that was concerned not only with Nike s labor practices, but with similar practices used by other multinational corporations. Knowledgeable persons should be free to participate in such debate without fear of unfair reprisal. The interest in protecting such participants from the chilling effect of the prospect of expensive litigation is therefore also a matter of great importance.239
Such language suggests a constitutional mindset more akin to that of New York Times Co. v. Sullivan240 than of Central Hudson241 and its commercial speech progeny. And in Sullivan, it bears noting, the Court required a showing of actual and particularized harm before liability could attach in the face of a First Amendment claim.242 Since discussion and debate on public issues is a matter of great importance, it would hardly seem appropriate to tailor a rule that would stifle or even silence such debate. By that First Amendment measure, the commercial speech analysis employed by the California Supreme Court in Nike would be constitutionally suspect.
But alas, Justice Stevens and his two colleagues could do no more than offer conflicted hints on how they might rule in a Nike-like case: Whether similar protection should extend to cover corporate misstatements made about the corporation itself, or whether we should presume that such a corporate speaker knows where the truth lies, are questions that may have to be decided in this litigation. 243 More litigation was thus required. More discovery was needed to flesh things out. Of course, that was precisely what Nike feared and precisely what Kasky desired, since once the case was sent back to the trial court, Kasky could begin his fishing expedition through countless Nike documents, any one or dozens of which might incriminate the company.
Incredibly, the political activist had leveled a mighty blow against the Goliath. Nike was now at Kasky s mercy, if only he and his lawyers could stay in the game long enough to get past a bevy of motions designed to keep them out of the treasure trove of the company s secret files. For the Oregon-based corporation, that possibility was nightmarish, even if the company s claims proved true. Not only was such extended discovery likely to be burdensome, but it also raised the odds that Kasky could find some negative material to publicize about the company s inner workings.
Jim Carter, Nike s general counsel, had to do something and quickly. But what? Just when it seemed that Marc Kasky was finally positioned to strike a blow for the anti-corporate and anti-sweatshop forces of his world, the unexpected happened.
