Marc Kasky is an anti-corporate crusader. In California, at least, such crusaders can wield their ideological axes at the heads of any variety of corporations—ranging from Exxon to Nestle, from Disney to Mattel, from Marlboro to McDonalds—and haul them before “truth commissions.” And they can do so without any fear of business libel or product disparagement suits, since those Kaskys are private attorneys general. Whatever one thinks about the evildoings of corporate America—we have our own criticisms in that regard—it cannot be denied that this promotes a system not of freedom of expression, but of ideological favoritism. For a free-speech culture that expects matters of truth to be contested in the marketplace of ideas, such an ideological use of the courts smacks of an end-run around the First Amendment.³⁶⁴

Anti-corporate activists following in the footsteps of Marc Kasky should think long and hard about turning courts into “truth commissions.” After all, the path to the courthouse door is not a one-way street, open only to the ideologically progressive. As of late, corporations armed with product disparagement claims have become quite accustomed to calling on the courts to determine the truth or falsity of statements relating to significant matters of public importance.

Perhaps the most telling example of that phenomenon is the recent controversy between the Suzuki Motor Company and the Consumers Union of the United States, the New York-based publisher of Consumer Reports.³⁶⁵ When the magazine reported in 1998, based on its test studies, that the Suzuki Samurai “rolls over too easily,” the auto manufacturer sued the public-interest publisher in federal district court, claiming that it had acted maliciously to damage the reputation of the sport-utility vehicle. Suzuki argued that the magazine’s test procedures were scientifically unsound, based on a government report that failed to find the vehicle defective. On appeal from a summary judgment in favor of the defendant, the United States Court of Appeals for the Ninth Circuit ruled that the case must return to the trial court for a full hearing in which the jury would weigh the evidence for Suzuki’s allegations that the magazine’s driving tests were rigged. The appellate court refused to reconsider that decision en banc.

Judge Alex Kozinski wrote a thoughtful and stinging dissent, joined by ten of his colleagues, to complain that “the majority sets a dangerous precedent.”³⁶⁶ Should Consumers Union be forced to trial after candidly disclosing its investigative methods, Kozinski warned, “this is the death of consumer ratings.”³⁶⁷ That Suzuki’s suit might ultimately fail after trial “is little solace to a defendant crushed by the sheer expense of litigation.”³⁶⁸ On a more fundamental level, Kozinski saw the threat to core First Amendment values in allowing companies like Suzuki to use the courts as truth commissions: “[C]ourts have no business wading into this scientific feud . . . . It should be resolved by scientists, policymakers and consumers, not crushing libel verdicts.”³⁶⁹

What we hope is apparent by this example is the Janus-like punitive quality of campaigns, designed by activist radicals and re-activist corporations, to take speech out of the marketplace of ideas and into the machinations of the law. For every Marc Kasky that brings a Nike to its knees, there is a Suzuki doing the same to a consumer advocate. Without forfeiting our credentials as officers of the court, we think it salutary that this debate be waged outside of courtrooms presided over by black-robed judges. It is a debate that belongs in the court of public opinion judged by people of all ideological stripes. This, we submit, is one of the lofty premises of the First Amendment.

That, then, is the story of Nike v. Kasky. Actually, it is but a foreword to a fuller story, one that unfolds in the articles that follow.