1. Thomas C. Goldstein, Nike v. Kasky and the Definition of Commercial Speech, 2002-2003 Cato Sup. Ct. Rev. 63, 63. Mr. Goldstein was one of Nike s three main lawyers, joined by Laurence Tribe and Walter Dellinger, in the United States Supreme Court.
4. Editorial, Speech & Power: Is First Amendment Absolutism Obsolete?, Nation, July 21, 1997, at 11.
6. Many of the facts in this account are documented in Kasky s
complaint in Kasky v. Nike, Inc., filed in the California Superior Court in
San Francisco. Complaint, Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002) (No.
994446), available at http://www.corpwatch.org/issues/
PRT.jsp?articleid=3448; First Amended Complaint, Nike (No. 99446); Bob Herbert,
Brutality in Vietnam, N.Y. TIMES, March 28, 1997, at A29, LEXIS, News &
Business, News, By Individual Publication, N, The New York Times (discussing
International Women s Day) hereinafter Brutality in Vietnam.; Bob Herbert,
Nike Blinks, N.Y. TIMES, May 21, 1998, at A33, LEXIS, News & Business, News,
By Individual Publication, N, The New York Times (discussing working conditions
and firing) hereinafter Nike Blinks.; Vietnam Labor Watch, Nike Labor Practices
in Vietnam (March 20, 1997), at http://www.cleanclothes.org/companies/nikevlw.htm;
Henry Weinstein, California Legal Team Takes Aim at Nike, L.A. TIMES, Apr. 21,
1998, at D2, LEXIS, News & Business, News, News Group File, All (discussing
working conditions including toluene exposure); 48 Hours: Controversy Surrounds
Nike as Exclusive Investigation Reveals Abuse of Workers in Foreign Countries
and Very Low Wages (CBS News Transcripts, Oct. 17, 1996), LEXIS, News &
Business, News, Transcripts (depicting Nike factory in Samyang, Vietnam); 48
Hours: Investigation into Nike s Overseas Operations Three Years Ago Brought
About Change; Nike Expands by Moving to Vietnam and Paying Lower Wages, (CBS
News Transcripts, Oct. 17, 1996), LEXIS, News & Business, News, Transcripts,
(depicting factories in Djakarta, Indonesia, and Vietnam).
7. UPTON SINCLAIR, THE JUNGLE 21 (James Barrett ed., Univ. Ill. Press 1988).
8. Vietnam Labor Watch, supra note 6.
9. Jim Lobe, Nike Brought to Court over False Ads, IPS-Inter Press Serv., April 21, 1998, LEXIS, News & Business, News, All (discussing Knight s statement, as quoted in Kasky s complaint).
10. Bob Herbert, Nike s Bad Neighborhood, N.Y. TIMES, June 14, 1996, at A29, LEXIS, News & Business, News, By Individual Publication, N, The New York Times.
11. Bob Herbert, Nike s Pyramid Scheme, N.Y. TIMES, June 10, 1996, at A17, LEXIS, News & Business, News, By Individual Publication, N, The New York Times hereinafter Nike s Pyramid Scheme.; Nike s Bad Neighborhood, supra note 10; Bob Herbert, From Sweatshops to Aerobics, N.Y. TIMES, June 24, 1996, at A15, LEXIS, News & Business, News, By Individual Publication, N, The New York Times. Mr. Herbert went on to write six more editorials on the Nike overseas labor controversy: Brutality in Vietnam, supra note 6; Bob Herbert, Nike s Boot Camps, N.Y. TIMES, Mar. 31, 1997, at A15 hereinafter Nike s Boot Camps.; Bob Herbert, A Good Start, N.Y. TIMES, Apr. 14, 1997, at A17 hereinafter A Good Start.; Bob Herbert, Mr. Young Gets It Wrong, N.Y. TIMES, June 27, 1997, at A29, LEXIS, News & Business, News, By Individual Publication, N, The New York Times hereinafter Mr. Young Gets It Wrong.; Nike Blinks, supra note 6; Bob Herbert, Let Nike Stay in the Game, N.Y. TIMES, May 6, 2002, at A21 hereinafter Let Nike Stay in the Game.. Importantly, in the last editorial, Mr. Herbert wrote to defend Nike s First Amendment rights.
12. Vietnam Labor Watch, supra note 6.
13. Greg Melville, California Suit Latest Shot at Nike Labor: On Heels of Movie, TV Probes, Nike Says It Doesn t Whine ; Treatment of Asian Workers, FOOTWEAR NEWS, Apr. 27, 1998, at 2, LEXIS, News & Business, News, News Group File, All.
15. See, e.g., Vietnam Makers of Nike Shoes Deny Charges of Labour Mistreatment, AGENCE FRANCE PRESSE, Mar. 28, 1997, LEXIS, News and Business, News, By Individual Publication, A, Agence France Presse-English; Eric C. Fleming, Nike Criticized for Labor Practices, NEWS, Mar. 29, 1997, LEXIS, News & Business, News, News Group File, All.
16. See NAOMI KLEIN, NO LOGO 367-68 (2002).
17. See Keith Hammond, Leaked Audit: Nike Factory Violated Worker Laws, Nov. 7, 1997, at http://www.motherjones.com/news_wire/nike.html.
18. Steven Greenhouse, Nike Shoe Plant in Vietnam Is Called Unsafe for Workers, N.Y. TIMES, Nov. 8, 1997, at A1, LEXIS, News & Business, News, By Individual Publication, N, The New York Times.
19. Steve Rubenstein, Marc Kasky; S.F. Man Changes from Customer to Nike Adversary, S.F. CHRON., May 3, 2002, at A6, LEXIS, News & Business, News, By Individual Publication, S, The San Francisco Chronicle.
20. Id.; Christian Plumb, Phone Firms Sued over Long-Distance Telephone Charges; Class-Action Case Sought Against Billing Policy, S.F. EXAM R, Oct. 21, 1995, at D2, LEXIS, News & Business, News, By Individual Publication, S, San Francisco Examiner (discussing class action against AT&T, MCI, and Sprint); Melville, supra note 13 (discussing suits against Pillsbury and Nestle).
21. Californian Sues Nike Inc. over Asian Labor Conditions, S.F. EXAM R, Apr. 22, 1998 LEXIS, News & Business, News, By Individual Publication, S, San Francisco Examiner hereinafter Californian Sues Nike..
22. Cal. Bus. & Prof. Code §§ 17200-17209 (West 2000).
24. Gina Binole, California Lawsuit Against Nike Could Be a Problem, BUS. J., May 1, 1998.
25. See Stephanie Armour, California Lawsuit Takes Nike to Task, USA TODAY, Apr. 21, 1998, at 4B, LEXIS, News & Business, News, News Group Fill, All (documenting the Superior Court complaint); V. Dion Haynes, Nike Hit with Suit on Labor Practices, CHI. TRIB., Apr. 21, 1998, at N1; Weinstein, supra note 6; Nike Accused of Lying About Asian Factories, N.Y. TIMES, Apr. 21, 1998, at A18, LEXIS, News & Business, News, By Individual Publication, N, The New York Times; Scott Winokur, Suit Hits Nike on Labor Abuses, S.F. EXAM R, Apr. 21, 1998, at A6, LEXIS, News & Business, News, By Individual Publication, S, San Francisco Examiner.
26. See, e.g., Greenhouse, supra note 18; Hammond, supra note 17.
28. Complaint, Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002) (No. 994446). Any California citizen may bring suit under the California unfair business practices law to enforce its provisions. Cal. Bus. & Prof. Code § 17204 (West 2000).
29. Complaint at ¶ 6, Nike (No. 994446).
30. The California unfair business practices statute has been interpreted to require no allegation of personal injury by the plaintiff. See Gregory v. Albertson s Inc., 128 Cal. Rptr. 2d 389, 392 (Cal. Ct. App. 2002). Nor is there any requirement that the plaintiff, or the public at large, actually relied on the company s misrepresentations. See Klein v. Earth Elements, Inc., 69 Cal. Rptr. 2d 623, 626 (Cal. Ct. App. 1997) ( Unlike common law fraud, a section 17200 violation can be established even if no one was actually deceived, relied upon the fraudulent practice or sustained any damage. ).
31. Neither Kasky s complaint nor arguments made in briefs to the appellate courts during the entire litigation process characterized Nike s misrepresentations as lies made with actual malice (i.e., with knowledge of falsity or reckless disregard for the truth). Accordingly, the case alleged no more than Nike s negligence in making its contested statements. See Nike, Inc. v. Kasky, 123 S. Ct. 2554, 2556-57 (2003) (Stevens, J., concurring) (recognizing that Kasky would have to amend his complaint to allege any claim more serious than negligent misrepresentation).
32. Californian Sues Nike, supra note 21.
34. SLAPP stands for Strategic Lawsuits Against Public Participation. See Cal. Civ. Proc. Code § 425.16 (West 2000). In relevant part, section 425.16(b) provides:
(1) A cause of action against a person arising from any act of that person in furtherance of the person s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
Curiously, Nike did not avail itself of this remedy. Why not? Did it believe it could not prevail? If so, what does that suggest?
When a similar type of action was brought against a public interest group, a California judge issued a telephonic ruling in 2002, dismissing a SLAPP suit under authority of California Code of Civil Procedure § 425.16; see Bernardo v. Planned Parenthood Fed n, No. GIC772552 (Cal. Super. Ct. 2002), aff d, 9 Cal. Rptr. 3d 197 (Cal. Ct. App. 2004).
35. Nike Joins President Clinton s Fair Labor Coalition, PR Newswire, Aug. 2, 1996, LEXIS, News & Business, News, News, All.
36. The facts in this paragraph regarding Nike s 1997 revenues and promotional costs and sports players wearing Nike shoes derive from Complaint, Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002) (No. 994446). Aspects of the complaint are discussed by the California Supreme Court in Kasky v. Nike, Inc., 45 P.3d 243, 247-49 (Cal. 2002), cert. granted, 537 U.S. 1099 (2003), and cert. dismissed, 123 S. Ct. 2554 (2003).
37. See supra notes 6, 10-11, 18, 25.
39. See Vietnam Labor Watch, supra note 6.
40. See supra notes 6, 10-11, 18-21, 25.
42. See Harvey Araton, Athletes Toe the Nike Line, But Students Apply Pressure, N.Y. Times, Nov. 22, 1997, at C3, LEXIS, News & Business, News, By Individual Publication, N, The New York Times.
43. See Walter LaFeber, Michael Jordan and the New Global Capitalism 148-49 (2002); A Good Start, supra note 11.
44. Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854, 857 (Cal.
Ct. App. 2000) (discussing letter to presidents and athletic directors); Michael
Hines, Nike Denies Claims of Unfair Labor Practices, Or. Daily Emerald, Oct.
15, 1997, http://www.dailyemerald.com/archive/v99/1/
971015/nike.html.
46. Mr. Young Gets It Wrong, supra note 11; see also LaFeber, supra note 43, at 149 (discussing Young s report on Nike s factories).
47. Mr. Young Gets It Wrong, supra note 11.
49. Jeff Milchen, ACLU & Nike vs. Reason, May 15, 2002,
at http://reclaimdemocracy.org/
nike_aclu_corporate_speech.html.
50. See Martindale.com Lawyer Locator, Ann Brick, at http://lawyers.martindale.com (last visited Apr. 17, 2004).
51. See infra notes 56-57 and accompanying text.
52. See Martindale.com Lawyer Locator, supra note 50.
53. The Philip Morris-ACLU controversy discussed in this
paragraph is documented in Ron Scherer, ACLU Targeted in Tobacco-Money Flap,
Christian Science Monitor, Aug. 4, 1993, at 3 hereinafter ACLU Targeted.. Morton
Mintz updated his charges on the controversy in a Spring 1998 article. See Morton
Mintz, The ACLU and the Tobacco Companies, 52 Neiman Reports (Spring 1998),
http://reclaimdemocracy.org/personhood/aclu_tobacco_
mintz.pdf.
54. See Scherer, supra note 53. Ira Glasser, Executive Director of the ACLU, replied to Morton Mintz s 1998 article on the controversy, and Mintz wrote a rebuttal. See Letters: Tobacco and the American Civil Liberties Union, 52 Neiman Reports (Summer 1998), http://www.nieman.harvard.edu/reports/98-2NRsum98/NRSum98LETTERS.html.
55. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
56. See Brief Amici Curiae of the American Civil Liberties
Union and the ACLU of Northern California in Support of Petitioner, Nike, Inc.
v. Kasky, 123 S. Ct. 2554 (2003) (No. 02-575), http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.aclu.
pdf hereinafter ACLU Brief.. Although the ACLU filed briefs in support of Nike
once review was granted in the California courts and the U.S. Supreme Court,
the organization did not, as is its general practice, file cert amicus briefs.
57. This and the following quotations describing the ACLU s amicus brief in Kasky are documented in ACLU of Northern California, The ACLU s Position in Kasky v. Nike, at
http://www.aclunc.org/expression/020531-position.html.
59. Chrestensen v. Valentine, 122 F.2d 511, 524 (2nd Cir. 1941) (Frank, J., dissenting), rev d, 316 U.S. 52 (1942).
62. 425 U.S. 748, 762 (1976) (holding that commercial speech is not wholly outside the protection of the First and Fourteenth Amendments).
63. We need say no more about Virginia State Board of Pharmacy, given the excellent historical memoir of that case by the attorney who represented the respondents in the U.S. Supreme Court, who is a contributor to this Symposium. See Alan B. Morrison, How We Got the Commercial Speech Doctrine: An Originalist s Recollection, 54 Case W. Res. L. Rev. 1189 (2004).
64. Once again, thanks to our colleagues in this Symposium, we are relieved from the responsibility of describing and analyzing the evolution of the commercial speech doctrine from 1976 to present. For astute, albeit contrasting, accounts of that development, see Deborah J. La Fetra, Kick It Up a Notch: First Amendment Protection for Commercial Speech, 54 Case W. Res. L. Rev. 1205, 1213-16 (2004); Robert M. O Neil, Nike v. Kasky What Might Have Been . . ., 54 Case W. Res. L. Rev. 1259, 1260-63 (2004); David C. Vladeck, Lessons from a Story Untold: Nike v. Kasky Reconsidered, 54 Case W. Res. L. Rev. 1049, 1050-55 (2004); James Weinstein, Speech Categorization and the Limits of First Amendment Formalism: Lessons from Nike v. Kasky, 54 Case W. Res. L. Rev. 1091, 1093-1107 (2004) (discussing more particularly the First Amendment normative values reflected in doctrinal development of non-commercial and commercial speech cases).
65. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring) (finding a parity between commercial and non-commercial speech for the government s interest to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace ).
67. Scott Malone, Nike Yells Foul, Cites First Amendment, Says San Francisco Suit Seeks to Handcuff Sneaker Firm from Defending Its Image, Footwear News, July 6, 1998, at 2, http://www.its.caltech.edu/~xiuqin/strategy/Nike-foul.htm.
68. Roger Parloff, Can We Talk?, Fortune, Sept. 2, 2002, at 102, LEXIS, News & Business, News, By Individual Publication, Fortune.
69. Rinat Fried, Suit Against Nike Faces Hurdles, Legal Intelligencer, Jan. 11, 1999, at 4, LEXIS, News & Business, News, By Individual Publication, The Legal Intelligencer (reprinting a report on the January 7th hearing of Nike s motion to dismiss); see also Rinat Fried, Judge Could Throw Out Lawsuit Against Nike, Recorder, Jan. 8, 1999, at 3, LEXIS, News & Business, News, By Individual Publication, The Legal Intelligencer.
70. Judge Garcia s trial court ruling in Cannabis Buyer s Club is discussed in the intermediate appellate court s decision in People ex rel. Lungren v. Peron, 70 Cal. Rptr. 2d 20, 22 (Cal. Ct. App. 1997) (vacating order and reinstating original injunction).
73. Mr. Brown is now with the law firm of Morgan Lewis in
San Francisco. See http://www.morganlewis.com/index.cfm?nav=05&obj=962871DA-4AC2-4460-A206004DACE
7C841&showObj=FD3C1B1E-7A69-4BAD-83AC69DA2BDF7A15&showTab=1&show
Link=2 (last visited May, 3, 2004).
74. The account of the Kasky v. Nike hearing before Judge Garcia, as well as the quotations in this paragraph and the next, are documented in Fried, supra note 69.
75. Kasky v. Nike, No. 994446 (Cal. Super. Ct. Feb. 5, 1999) (dismissing complaint).
76. Rinat Fried, Judge Throws Out Nike Advertising Fraud Case, Recorder, Feb. 8, 1999, at 3, LEXIS, News & Business, News, News Group File, All.
78. The account on Paul Hoeber in this paragraph and the next is derived from Law Offices of Bushnell, Caplan & Fielding, at http://www.bcflaw.com/hoeber.htm (last visited May 3, 2004), and http://www.bcflaw.com/directions.htm (last visited May 3, 2004).
79. The description of the state appellate court ruling in this paragraph and the next is documented in Kasky v. Nike, 93 Cal. Rptr. 2d 854 (Cal. Ct. App. 2000).
80. Josh Richman, Greenwashing on Trial, Feb. 23, 2001, at
http://www.motherjones.com/
news/feature/2001/02/greenwash.html.
81. Kevin Livingston, Justices Lace Up for Nike Case, Recorder, June 22, 2000, at 7, LEXIS, News & Business, News, News, All.
82. Associated Press, State High Court to Decide If Nike Violated False-Advertising Laws, June 22, 2000 (on file with authors).
83. Maura Dolan, Nike Can t Just Say It, Court Rules, L.A. Times, May 3, 2002, at A1.
84. The account of the California Supreme Court oral arguments related in this paragraph and the next is largely derived from Mike McKee, Nike Ads Not Actionable, Justices Hint, Legal Intelligencer, Feb. 8, 2002, at 2, LEXIS, News & Business, News, News, All hereinafter Nike Ads Not Actionable..
85. For a profile report on Justice Brown, see Mike McKee, Brown Raises Eyebrows, Doesn t Mince Words, Recorder, Feb. 11, 2003, at 4, LEXIS, News & Business, News, News Group File, All. Justice Brown was subsequently nominated by President Bush for an appointment to the United States Court of Appeals for the District of Columbia Circuit. Speculation has raged over a possible Bush nomination to the U.S. Supreme Court in the event of an opening. See Daniel Klaidman et al., Supreme Court: Moving on, Moving in, Moving up: A Vacancy Could Open up in the U.S. Supreme Court Soon, Newsweek, Feb. 17, 2003, at 9, LEXIS, News & Business, News, By Individual Publication, N, Newsweek.
86. Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002).
97. Id. (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983)).
99. Id. (quoting Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 (1976)).
100. Id. at 263 (Chin, J., dissenting) (quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)).
101. Id. at 267 (Chin, J., dissenting).
102. Id. at 268 (Brown, J., dissenting).
103. Id. at 269 (Brown, J., dissenting).
104. Id. (Brown, J., dissenting).
105. Id. at 273 (Brown, J., dissenting).
106. Id. (Brown, J., dissenting) (quoting First Nat l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978)).
109. Rubenstein, supra note 19.
110. The Risks of Just Doing It, Corp. Counsel, Mar. 2003, at 20, LEXIS, News & Business, News, News Group File, All (alterations in original).
111. Let Nike Stay in the Game, supra note 11.
112. Bates v. State Bar, 433 U.S. 350, 383 (1977).
113. Nike had hired and/or consulted numerous other scholars and lawyers. The other attorneys formally listed on Nike s Supreme Court briefs were David J. Brown and James N. Penrod of Brobeck, Phleger & Harrison.
114. Vladeck, supra note 64, at 1061.
115. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).
116. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 781 (1976) (emphasis added).
117. 533 U.S. 405 (2001). Notably, Professor Tribe argued the cause for United Foods in the Supreme Court hearing on this case.
118. Id. at 409 (emphasis added).
119. 447 U.S. 557, 561 (1980) (emphasis added).
120. Petitioner s Brief at 42, Nike, Inc. v. Kasky,
123 S. Ct. 2554 (2003) (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.
pet.pdf.
121. The Respondent seemed to concede this point: It is true that almost anything a company does or says may have an economic motivation, whether the company is building a new plant or supporting favorable legislation, and thus may ultimately serve the purpose of promoting sales of its products. Respondent s Brief at 34, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer. resp.pdf.
122. Petitioner s Brief at 21, Nike (No. 02-575); see also id. at 6, 24, 27, 30, 34 & nn. 9, 35, 36.
123. Id. at 26 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).
125. Id. at 27 (citation omitted).
128. Respondent s Brief at 14, Nike (No. 02-575).
129. Id. at 20 (citation omitted).
130. Id. at 21. Among other safeguards, the Respondent s brief noted: The defendant also has the right to file a SLAPP motion under California s anti-Strategic Lawsuits Against Public Participation statute. Cal. Civ. Pro. Code § 425.16 (App. 49a). Id. at 23.
131. Id. at 29 (emphasis added) (quoting Brief of Amici
Curiae United States at 28, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/
02-575.mer. ami.usa.pdf).
134. Id. at 34 (citation omitted).
136. Reply Brief for the Petitioners, Nike (No. 02-575),
available at http://supreme.usatoday.
findlaw.com/supreme_court/briefs/02-575/02-575.mer.pet.rep.pdf.
137. Benjamin N. Cardozo, Law and Literature and Other Essays and Addresses 8 (1931).
138. See Nike, 123 S. Ct. at 2650 (Breyer, J., dissenting).
139. Although Martin Garbus worked on the amicus brief for his firm, Davis & Gilbert, LLP, he ultimately chose not to sign the brief. See discussion infra at 998-99.
140. Brief of Amici Curiae Association of National Advertising, Inc. et al. at 2, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/ briefs/02-575/02-575.mer.ami.ana.pdf.
141. Brief of Amici Curiae Sierra Club et al. at 1, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer. ami.sierra.pdf.
142. Brief of Amici Curiae American Civil Liberties Union and the ACLU of Northern California in Support of Petitioner at 6, Nike (No. 02-575).
143. Brief of Amici Curiae States of California et al. at 9, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.states.pdf.
144. Brief of Amici Curiae Chamber of Commerce of the United States of America at 2, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/ supreme_court/briefs/02-575/02-575.mer.ami.ccus.pdf.
145. Brief of Amicus Curiae Pacific Legal Foundation et
al. at 3, Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.plf.
pdf.
146. See generally Ronald Collins & David Skover, The Trials of Lenny Bruce (2002).
147. See Martin Garbus & Stanley Cohen, Tough Talk 10 (1998) (discussing Andrei Sakharov); id. at 65-68 (discussing Cesar Chavez); id. at 186-88 (discussing Samuel Beckett); id. at 199-207 (discussing Spike Lee); id. at 221-23 (discussing Robert Redford); id. at 270-76 (discussing Vaclav Havel); see also Martin Garbus, Ready for the Defense 3-77 (1971) (discussing Henrietta Wright); id. at 81-140 (discussing Lenny Bruce); id. at 259-306 (discussing Timothy Leary).
148. Significantly, the AFL/CIO, which had supported Kasky
with an amicus brief in the California Supreme Court, now urged the U.S. Supreme
Court to sustain Nike s First Amendment claims. Brief of Amici Curiae
American Federation of Labor and Congress of Industrial Organizations, Nike
(No. 02-575), available at http://supreme.usatoday.findlaw.com/
supreme_court/briefs/02-575/02-575.mer.ami.aflcio.pdf.
149. Brief of Amici Curiae Public Citizen, Nike (No. 02-575),
available at http://supreme.
usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.pubcit.pdf.
Mr. Morrison is a contributor to this Symposium.
150. Id. Mr. Vladeck is also a contributor to this Symposium.
151. Brief of Amici Curiae Members of the United States
Congress, Representative Dennis J. Kucinich et al., Nike (No. 02-575), available
at http://supreme.usatoday.findlaw.com/
supreme_court/briefs/02-575/02-75.mer.ami.congress.pdf. Professor Chemerinsky
has co-authored an article for this Symposium.
152. Id. Professor Fisk is Professor Chemerinksy s co-author in the article for this Symposium.
153. Brief of Amici Curiae Sierra Club et al., Nike (No. 02-575).
155. Brief of Amici Curiae Chamber of Commerce of the United States of America, Nike (No. 02-575).
156. Brief of Amici Curiae Thirty-Two Leading Newspapers
et al., Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.pet.ami.
media.pdf. Mr. Johnson contributed to this Symposium.
157. Brief of Amici Curiae EXXONMobile et al., Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.exxon.pdf.
158. Brief of Amici Curiae Thomas Jefferson Center for the
Protection of Free Expression and the Media Institute, Nike (No. 02-575), available
at http://supreme.usatoday.
findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.tjc.pdf. Professor O Neil
contributed to this Symposium.
159. Brief of Amici Curiae National Association of Manufacturers,
Nike (No. 02-575), available at http://supreme.usatoday.findlaw.com/supreme_court/briefs/02-575/02-575.mer.ami.
nam.pdf.
160. Brief of Amici Curiae United States at 27, Nike (No. 02-575).
162. Brief of Amici Curiae States of California et al. at 12-14, Nike (No. 02-575).
163. The Public Citizen amicus brief argued as much: I.f the California Attorney General had brought this case, surely the First Amendment would not shield Nike from liability for any factual representations that were proven false. Brief of Amici Curiae Public Citizen at 14-15, Nike (No. 02-575).
164. Brief of Amici Curiae States of California et al. at 14, Nike (No. 02-575).
165. Brief of Amici Curiae Thirty-Two Leading Newspapers et al. at 18, Nike (No. 02-575) (quoting Complaint at ¶ 19, Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002) (No. 994446)).
166. Brief of Amici Curiae Members of the United States Congress, Representative Dennis J. Kucinich et al., Nike (No. 02-575).
168. Brief of Amici Curiae Public Citizen at 22, Nike (No. 02-575) (citation omitted).
170. Brief of Amici Curiae Members of the United States Congress, Representative Dennis J. Kucinich et al. at 7, Nike (No. 02-575) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983)).
171. Brief of Amici Curiae Thomas Jefferson Center for the Protection of Free Expression and the Media Institute at 5, Nike (No. 02-575).
172. Reply Brief for the Petitioners, Nike (No. 02-575).
173. Brief of Amici Curiae Public Citizen at 22, Nike (No. 02-575).
174. Brief of Amici Curiae Members of the United States Congress, Representative Dennis J. Kucinich et al., Nike (No. 02-575).
175. Charles Fried, Oral Argument, in the Oxford Companion to the United States Supreme Court 612 (Kermit L. Hall ed., 1992).
176. Tr. of Oral Arguments at 3, Nike (No. 02-575), available at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-575.pdf. One of the authors, Ronald Collins, was present for oral arguments and took notes identifying which speaker said what. Thus, the identities of the Justices have been added to this manuscript and do not appear in the original transcript.
183. Notes taken by Ronald Collins on April 23, 2003, at Nike, Inc. v. Kasky oral arguments (on file with authors).
185. Tr. of Oral Arguments at 22-23, Nike (No. 02-575).
196. 416 U.S. 312, 319-20 (1974) (discussing the jurisprudential barrier to determination of a 14th Amendment affirmative action claim).
197. Tr. of Oral Arguments at 63, Nike (No. 02-575).
199. Frank J. Murray, Justices Dismiss Nike Motives, Wash. Times, Apr. 24, 2003, at 3A (story and photograph of the shoe and protesters); Bill Mears, Supreme Court Looks at Free Speech Rights of Corporate America, CNN Law Center, June 27, 2003, at www.cnn.com/2003/LAW/04/23/scotus.free.speech/ (describing the protests) (last visited Apr. 18, 2004).
200. Noted by Ronald Collins, Apr. 24, 2003, Washington, D.C., in front of Supreme Court (on file with author).
201. Jim Barnett, Supreme Court Hears Nike Case, Portland Oregonian, April 24, 2003, at C1, 2003 WL 3814345.
202. Linda Greenhouse, Nike, Fighting Trade Suit, Asks Justices for Free-Speech Protection, N. Y. Times, Apr. 24, 2003, at 28A, LEXIS, News & Business, News, By Individual Publication, N, The New York Times.
203. Tony Mauro, High Court Appears Ready to Side with Nike in Free-Speech Dispute, First Amendment Center, Apr. 24, 2003, at www.firstamendmentcenter.org/analysis.aspx?id=11384.
204. Charles Lane, Supreme Court Considers Nike s Free Speech , Wash. Post, April 24, 2003, at 2E, 2003 WL 18819944.
205. The information about the Niketown rally is set out in an April 18, 2003 press release/media advisory. Press Release, Reclaim Democracy.Org & Global Exchange, Citizens Rally in Defense of Truth in Advertising Laws and Against Corporate Claims of a Constitutional Right to Lie (Apr. 18, 2003) (on file with authors).
206. Kucinich Speaks Out at UC Berkeley Against War, Hotline, April 24, 2003, LEXIS, News & Business, News, News Group, All.
207. Harriet Chiang, Court Says Nike Must Defend Its PR: Free Speech Doesn t Protect Labor Claims, S.F. Chron., May 3, 2002, at A1, 2002 WL 4019444.
208. Goldstein, supra note 1, at 64.
209. Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
210. Lawrence v. Texas, 539 U.S. 558 (2003).
211. Virginia v. Black, 538 U.S. 343 (2003).
212. McConnell v. F.E.C., 124 S. Ct. 619 (2003).
213. United States v. Am. Library Ass n., 539 U.S. 194 (2003).
214. Nev. Dep t. of Human Res. v. Hibbs, 538 U.S. 721 (2003).
215. Eldred v. Ashcroft, 537 U.S. 186 (2003).
217. Ostensibly, there were two jurisdictional concerns that ultimately doomed Nike. First, the California Supreme Court never entered a final judgment. The U.S. Supreme Court, however, does accept jurisdiction in certain exceptional situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 477 (1975). Given the interlocutory posture of the Nike case, however, the Court could have taken a number of paths that would neither preclude further proceedings in the state courts nor finally resolve the First Amendment questions in this case. Seemingly, then, the judgment of the California Supreme Court did not come within the purview of the Cox exception and, thus, could not be regarded as final.
The second jurisdictional issue involved the standing of either Nike or Kasky to invoke jurisdiction of the federal courts. Kasky had neither asserted a federal claim nor alleged any injury to himself that was distinct and palpable. Warth v. Seldin, 422 U.S. 490, 501 (1975). Moreover, the Court was apparently unwilling to extend the ruling and reasoning of ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), to recognize Article III standing for Nike. Unlike ASARCO, in which the state court proceedings ended in a declaratory judgment invalidating a state law, the California Supreme Court had issued no final judgment altering tangible legal rights. Id. at 619. Rather, it had held merely that Kasky s complaint was sufficient to survive Nike s demurrer and to allow the case to go forward. To apply ASARCO to this case would expand it to cover an interlocutory ruling that only allows a trial to proceed.
218. Compare 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 487 (1996) (Thomas, J., concurring) (discussing the parity between commercial and non-commercial speech for the government s interest to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace ), with Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457, 477 (1997) ( The mere fact that one or more producers do not wish to foster generic advertising of their product is not a sufficient reason for overriding the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial. (emphasis added)).
219. Nike, 123 S. Ct. at 2558 (Stevens, J., concurring).
220. Id. at 2565 (Breyer, J., dissenting).
221. Miller v. California, 413 U.S. 15, 24 (1973) (emphasis added).
222. 123 S. Ct. at 2565 (Breyer, J. dissenting).
223. Id. at 2566. One of the participants in this Symposium lauds the speech-protective qualities of Justice Breyer s dissent, but omits any discussion of the restrictive character of the three-sets-of-circumstances standard developed there. See La Fetra, supra note 64, at 1211-13.
228. Brief of Amici Curiae United States, Nike (No. 02-575).
229. 123 S. Ct. at 2566 (Breyer, J., dissenting) (citation omitted).
230. Interestingly, the California Attorney General filed an amicus brief in the Supreme Court to support Kasky s position. See Brief of Amici Curiae States of California et al., Nike (No. 02-575).
231. 123 S. Ct. at 2566 (Breyer, J., dissenting) (emphasis added).
232. According to Professor Eugene Volokh s analysis
of the current Justices voting records in free-speech cases from 1994
to 2002, Justice Breyer ranks last in sustaining such claims, while Justice
O Connor ranks seventh. Eugene Volokh, How the Justices Voted in Free
Speech Cases, 1994 to 2002, 48 UCLA L. Rev. 1191, 1193 (2001), http://www1.law.ucla.edu/
~volokh/howvoted.htm.
233. Bigelow v. Virginia, 421 U.S. 809 (1975) (upholding commercial speech protection for an abortion clinic advertisement).
234. Consol. Edison Co. v. Pub. Serv. Comm n, 447 U.S. 530 (1980) (invalidating a state regulation forbidding public utilities from inserting public policy statements in their electric bill mailings).
235. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n, 447 U.S. 557, 566-571 (1980).
236. Nike, 123 S. Ct. at 2558-59 (Stevens, J., concurring) (emphasis added) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)).
237. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 496 (1996) ( In accord with the role that commercial messages have long played, the law has developed to ensure that advertising provides consumers with accurate information about the availability of goods and services. (emphasis added)); id. at 499 ( Our decision in Central Hudson. acknowledged the special features of commercial speech but identified the serious First Amendment concerns that attend blanket advertising prohibitions that do not protect consumers from commercial harms. (emphasis added)).
238. See, e.g., Reeves, Inc. v. Stake, 447 U.S. 429, 440 (1980) (holding South Dakota acted as a market participant in administering a residence preference program for the sale of cement and consequently the program did not violate the Commerce Clause).
239. Nike, 123 S. Ct. at 2559 (Stevens, J., concurring) (citation omitted & emphasis added).
241. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n, 447 U.S. 557 (1980).
242. Sullivan, 376 U.S. at 267 ( The jury must find that the words were published of and concerning the plaintiff. ).
243. Nike, 123 S. Ct. at 2559 (Stevens, J., concurring).
244. The Nike settlement was reported in a plethora of publications.
See, e.g., Associated Press, Nike Settles Commercial-Speech Case, Sept. 12,
2003, at http://www.firstamendment
center.org/news.aspx?id=11922; Bob Egelko, Nike Settles Suit for $1.5 Million,
S.F. Chron., Sept. 13, 2003, at B1, LEXIS, News & Business, News, News,
All; Lisa Girion, Nike Settles Lawsuit over Labor Claims, L.A. Times, Sept.
13, 2003, at C1, LEXIS, News & Business, News, News, All; Boaz Herzog, Nike
Settles Free Speech Case for $1.5 Million, Oregonian, Sept. 13, 2003, at A01,
LEXIS, News & Business, News, News, All; Adam Liptak, Nike Move Ends Case
over Firms Free Speech, N.Y. Times, Sept. 13, 2003, at A8, LEXIS, News
& Business, News, News, All; Nike Settles Commercial Free Speech Case for
$1.5 Million, Chattanooga Times Free Press, Sept. 13, 2003, at C5, LEXIS, News
& Business, News, News, All hereinafter Chattanooga Times..
248. Liptak, supra note 244. Whatever the financial reckoning, it amounted to no more than a nick for Nike, a company with $10.7 billion in annual revenue. Girion, supra note 244.
251. Associated Press, supra note 244.
253. Associated Press, supra note 244.
257. Faxed letter from Jim Carter, Nike Vice President and General Counsel, to Amici (Sept. 12, 2003) (on file with authors).
258. The following statements of Jeff Ballinger and Kevin Dannher appear in Egelko, supra note 244.
259. The statements of Kevin Goering, Thomas Goldstein, Jeff Milchen, and Patrick Coughlin in this paragraph and the next appear in Liptak, supra note 244.
260. See Cal. Bus. & Prof. Code § 17208 (West 2000) (setting limitation period of four years).
261. As Thomas Goldstein has noted, because plaintiffs in these cases disavow any personal injury and right to recovery, the suit will almost certainly not be removable to a federal court . . . . Goldstein, supra note 1, at 64 n.7.
262. Chattanooga Times, supra note 244.
263. Bruce W. Sanford & Robert D. Lystad, The New Vulnerability of Corporate Communications: The Impact of Nike v. Kasky, Baker Media Report 3 (July 2003), http://www.bakerlaw.com/files/tbl_s47Details/FileUpload265/16/july%202003%20online.pdf (last visited May 3, 2004).
266. Elizabeth Becker, Animal Rights Group to Sue Fast-Food Chain, N.Y. Times, July 7, 2003, at A11.
267. Elizabeth Becker, Rights Group for Animals Drops Lawsuit Against KFC, N.Y. Times, Sept. 2, 2003, at A19.
268. See David Barboza, Monsanto Sues Dairy in Maine over Label s Remarks on Hormones, N.Y. Times, July 12, 2003, at C1; J.M. Lawrence, Monsanto Sour on Milk Marketer s Hormones Claim, Boston Herald, July 4, 2003, at 10, LEXIS, News & Business, News, By Individual Publication, B, Boston Herald.
269. The Court did not render any commercial speech opinions in the 2003-2004 Term. The Supreme Court cases that include a commercial speech component are: Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); United States v. United Foods, Inc., 533 U.S. 405 (2001); L.A. Police Dep t v. United Reporting Publ g Corp., 528 U.S. 32 (1999); Greater New Orleans Broad. Ass n v. United States, 527 U.S. 173 (1999); Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995); Ibanez v. Fla. Dep t of Bus. & Prof l Regulation, 512 U.S. 136 (1994); United States v. Edge Broad. Co., 509 U.S. 418 (1993); Edenfield v. Fane, 507 U.S. 761 (1993); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993); Peel v. Attorney Registration & Disciplinary Comm n, 496 U.S. 91 (1990); Bd. of Trs. v. Fox, 492 U.S. 469 (1989); Shapero v. Ky. Bar Ass n, 486 U.S. 466 (1988); S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987); Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328 (1986); Pac. Gas & Elec. Co. v. Pub. Utils. Comm n, 475 U.S. 1 (1986); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983); Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982); In re R.M.J., 455 U.S. 191 (1982); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n, 447 U.S. 557 (1980); Consol. Edison Co. v. Pub. Serv. Comm n, 447 U.S. 530 (1980); Vill. of Schaumburg v. Citizens for a Better Env t, 444 U.S. 620 (1980); Friedman v. Rogers, 440 U.S. 1 (1979); Ohralik v. Ohio State Bar Ass n, 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978); Bates v. State Bar of Ariz., 433 U.S. 350 (1977); Carey v. Population Servs. Int l, 431 U.S. 678 (1977); Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85 (1977); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Bigelow v. Virginia, 421 U.S. 809 (1975); Pittsburgh Press Co. v. Pittsburgh Comm n on Human Relations, 413 U.S. 376 (1973); Cammarano v. United States, 358 U.S. 498 (1959); Breard v. City of Alexandria, 341 U.S. 622 (1951); Donaldson v. Read Magazine Inc., 333 U.S. 178 (1948); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Valentine v. Chrestensen, 316 U.S. 52 (1942).
270. These categories are listed on the First Amendment Center s website, at http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=commercial_speech&subheading=y (last visited May 3, 2004).
271. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983); Carey v. Population Servs. Int l, 431 U.S. 678 (1977).
272. Bigelow v. Virginia, 421 U.S. 809 (1975).
273. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
274. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
275. Valentine v. Chrestensen, 316 U.S. 52 (1942).
276. Lorillard, 533 U.S. 525; Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
277. Friedman v. Rogers, 440 U.S. 1 (1979).
278. Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995); Peel v. Attorney Regulatory & Disciplinary Comm n, 496 U.S. 91 (1990); Shapero v. Ky. Bar Ass n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); Ohralik v. Ohio State Bar Ass n, 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978); Bates v. State Bar of Ariz., 433 U.S. 350 (1977).
279. City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Cammarano v. United States, 358 U.S. 498 (1959).
280. Pac. Gas & Elec. Co. v. Pub. Utils. Comm n., 475 U.S. 1 (1986); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n, 447 U.S. 557 (1980); Consol. Edison Co. v. Public Serv. Comm n, 447 U.S. 530 (1980).
281. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 766-73 (1976) (holding that a state may not impose professional standards on pharmacists by keeping the public ignorant as to the terms that competing pharmacists are offering).
282. See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624-35 (1995) (holding that a ban on solicitation of accident victims for 30 days after an accident withstands First Amendment scrutiny because it fosters the welfare of accident victims).
283. Compare Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328 (1986) (banning casino gambling advertisements targeted at residents, while not banning those directed at tourists, constitutionally promoted Puerto Rico s substantial interest in insulating residents from concerns regarding casino gambling), with 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (banning price advertising of liquor did not advance state s interest in promoting temperance).
284. Compare Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457 (1997) (upholding state regulation that fruit growers help finance generic advertising of fruits, while ruling that growers disagreement with the content of the advertising had no bearing on the validity of the regulation), with United States v. United States Foods, 533 U.S. 405 (2001) (holding that the First Amendment may prevent the government from compelling individuals to pay subsidies for speech to which they object).
285. Compare Cen. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm n, 447 U.S. 557 (1980) (holding that a limitation of commercial speech must directly advance the state interest involved, and it may not be sustained if the interest could be served as well by a more limited restriction), with Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001) (Kennedy, J., concurring) (expressing disagreement with the standard set in Central Hudson because it provides insufficient protection to truthful, non-misleading speech), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring) (arguing that a government s interest in keeping legal users of products ignorant in order to manipulate consumer choices is per se illegitimate regulation).
286. Compare N.Y. Times Co. v. Sullivan, 376 U.S. 254, 272 (1964) (speech on matters of public concern needs breathing space potentially incorporating certain false or misleading speech in order to survive), with Consol. Edison Co. v. Pub. Serv. Comm n, 447 U.S. 530, 534 (1980) (regarding right in commercial speech cases to discuss publicly and truthfully all matters of public concern ).
287. See Nike v. Kasky, 123 S.Ct. 2554, 2560 (Breyer, J., dissenting) (referring to briefs submitted). The briefs appear in electronic form on the First Amendment Center s website, at http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Nike_v_Kasky.
288. See Erwin Chemerinsky & Catherine Fisk, What Is Commercial Speech? The Issue Not Decided in Nike v. Kasky, 54 Case W. Res. L. Rev. 1143 (2004) (adapting amicus brief submitted in the U.S. Supreme Court on behalf of members of the United States Congress); Bruce E.H. Johnson & Jeffrey L. Fisher, Why Format, Not Content, Is the Key to Identifying Commercial Speech, 54 Case W. Res. L. Rev. 1243 (2004) (adapting amicus brief submitted in the U.S. Supreme Court on behalf of forty leading media corporations and media-related trade and professional associations); La Fetra, supra note 64, (adapting amicus briefs filed in both the California Supreme Court and the U.S. Supreme Court on behalf of the Pacific Legal Foundation); Morrison, supra note 63 (counsel-of-record for amicus brief filed in the U.S. Supreme Court on behalf of Public Citizen Litigation Group, although article is not adapted from brief); O Neil, supra note 64, (adapting amicus brief in the U.S. Supreme Court on behalf of The Thomas Jefferson Center for the Protection of Free Expression); Vladeck, supra note 64, (adapting from amicus brief in the U.S. Supreme Court on behalf of Public Citizen Litigation Group).
289. C. Edwin Baker, Paternalism, Politics, and Citizen Freedom: The Commercial Speech Quandry in Nike, 54 Case W. Res. L. Rev. 1161 (2004); Weinstein, supra note 64.
290. Benjamin R. Barber, Jihad vs. McWorld 67 (1995).
291. See Jacobs & Young v. Kent, 129 N.E. 889, 890-91 (N.Y. 1921) (ruling that use of Cohoes piping, although contract expressly called for Reading piping, was trivial in relation to the substantial costs to replace piping).
292. See Restatement (Second) of Contracts § 162 (1981) ( When a Misrepresentation is Fraudulent or Material ).
293. This point, among others, was developed in Ronald K.L. Collins & David M. Skover, Death of Discourse 67-135 (1996). Unfortunately, some of our critics on both the Left and Right failed to appreciate our mission and our satire in that work. Our study of the link between commerce and communication, for example, was less concerned with normative conclusions than with cultural analysis; less concerned with providing answers than raising questions; and less concerned with free-speech results than with First Amendment rationales. This Foreword, in contrast, is more pointedly directed to conclusions, though we retain the prerogative to revise our observations one day if that becomes necessary.
294. See Simon Balint et al., Ben & Jerry A Case
Study, Ex. 3 ( Ben & Jerry s brings together 400 companies to
support the 1% for Peace campaign advocating redirection of military
spending towards public health, education, and poverty. ), at http://www.geocities.com/dsouzsj/
ben_and_jerry_case_study.htm (last visited May 3, 2004).
295. Eileen Fisher is one among other companies, such as Liz Claiborne and Tampax, that sponsor V-Day, a global movement to stop violence against women. See V-Day, V-Day: Sponsors & Supporters, at http://www.vday.org/contents/victory/sponsors (last visited May 3, 2004).
298. Would the result in the hypothetical be any different if, after the investigative report, Mr. Knight made the same general statement? Or what if he made the statement with specific reference to the Nike plant in Taiwan that was the topic of the newspaper report?
299. To give credit where it is due, this hypothetical came from Professor David Vladeck. On February 10, 2003, Vladeck sprung that hypothetical on Walter Dellinger, one of Nike s Supreme Court counsels, during a debate sponsored by the Association of the Bar of the City of New York. David Vladeck, Comments before the First Amendment Section of the Bar of the Association of the City of New York (Feb. 10, 2003) (on file with authors).
300. Baker, supra note 289. Baker s theory of free speech, ostensibly grounded in his notion of self-realization, is one rooted more in the liberty of socialism than of capitalism. That helps to explain his understanding of self-realization and his animosity towards protections for corporate speech. His theory, in that sense, is on a collision course with the capitalism of contemporary American culture and the legal system that makes that culture possible. Compare Collins & Skover, supra note 293, at 104-05, 154-55. In other words, the American commercial culture s values are not his values; its free-speech principles are not his; and its notion of impermissible censorship is not his. What this means is that when applied to our world, his theory seems extreme. This is not to say, however, that it should not be entertained, if only in the name of defending robust dissent. By that measure, Professor Baker gives some quantum of intellectual staying power to the anti-corporate forces that hoped to gag the mighty Nike.
301. Professor Baker s self-realization principle is inapplicable to for-profit corporations, other than for-profit corporations that trade in speech. Hence, speech by the press or media is to be protected, and the profit motive of such creations of the state is to be ignored. Such distinctions, of course, could not be justified based on an audience s right to self-realize by way of the information such individuals receive. If it did, it would be pointless to distinguish between corporate (profit, non-profit, or press) and non-corporate speakers. Precisely this point is made forcefully by Professor Redish. See Martin H. Redish, Money Talk$: Speech, Economic Power, and the Values of Democracy 65, 71-80 (2001). Where the speaker is the message, the message content becomes irrelevant. For if the same message content were delivered by a media corporation and a non-media for-profit corporation, it would obtain constitutional and personal value in the case of the former but not in that of the latter. Moreover, a good argument can be made that the modern electronic media actually undermine traditional notions of free speech and self-realization. See Collins & Skover, supra note 293. Professor Baker s views notwithstanding, it should be noted that progressives have long challenged the idea that the corporate press somehow stands in special shoes as a legal entity entitled to constitutional protection as if it were akin to a real person for First Amendment purposes. See Our Unfree Press: 100 Years of Radical Media Criticism 8-9, 305-19, 365-67, 377-86 (Robert W. McChesney & Ben Scott eds., 2004). See generally Ronald Collins, Dictating Content: How Advertising Pressure Can Corrupt a Free Press (Center for the Study of Commercialism 1992).
302. It bears recalling that Kasky s suit was brought not only against Nike, Inc., but also against individuals. As the California Supreme Court put it: The individual defendants (Philip Knight, Thomas Clarke, Mark Parker, Stephen Gomez, and David Taylor) are officers and/or directors of Nike. Kasky v. Nike, Inc. 45 P.3d 243, 247 (Cal. 2002). How, we wonder, does this affect the application of Professor Baker s theory of commercial speech? Would it allow for First Amendment protection for these five individuals, assuming that some or all of them had some connection to the statements that gave rise to this litigation? If so, would it permit the very same statements to be actionable against the company but not the company s executive officers and directors? In this regard, consider the questions posed to Professor Baker by Deborah La Fetra in her contribution to this Symposium. See La Fetra, supra note 64, at 1222.
303. Chemerinsky & Fisk, supra note 288.
304. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983) (distinguishing commercial speech from non-commercial speech by three characteristics: (1) whether the communication is an advertisement; (2) whether it concerns a product; and (3) whether the speaker has an economic motivation).
305. Because Chemerinsky and Fisk s amicus brief in the Supreme Court argued against Nike s First Amendment claims, it is apparent that the stockholders meeting and the college coaches scenarios, based as they are on the background facts in the Nike case, would likely add nothing to save Nike.
306. Chemerinsky & Fisk, supra note 288, at 1151.
309. Johnson & Fisher, supra note 288, at 1243.
310. We refer here to Marshall McLuhan s famous aphorism, the medium is the message, whereby he indicated that a medium s technological attributes should be the focus of study rather than the content of the messages transmitted by that medium. See Marshall McLuhan, Understanding Media: The Extension of Man 7-21 (MIT Press ed., 1994).
311. Johnson & Fisher, supra note 288, at 1245.
315. Of course, this may beg the question since more and more commercial advertising is not made in a direct advertising format. By that standard, much of what is understood as advertising would be tantamount to political speech or some other type of similarly protected expression.
316. We are unsure as to how Johnson and Fisher would apply the one step removed element of their analysis to the college coaches hypothetical. On the one hand, Nike s statement could be characterized as a condition precedent to the university s obligations to buy the company s shoes, in which case harm would be seen as immediately flowing from Nike s alleged misrepresentations. On the other hand, consider the impact here of Johnson and Fisher s analysis: When the media provide consumers with informative counterspeech regarding a company s business practices, and consumers have ample time to reflect on that information, should the government nevertheless be allowed to punish companies for making potentially misleading assertions to the press in the course of this coverage? Id. at 1249. Should there be substantial time for reflection between Nike s assurances to the coaches and the university s decisions to buy shoes, we ask in turn, would the contemporaneous and easily accessible press coverage that characterized the Nike case itself satisfy Johnson and Fisher s analysis for First Amendment protection? Id.
318. Id. at 1222 (citations omitted).
319. Id. at 1231(commercials in film, television, and even novels).
320. Id. at 1232(underwriting of shows, concerts, or sports events).
321. Id. (celebrity narratives to tout products overtly or subtly).
322. Id. at 1234 (computer-generated commercial images inserted in live broadcasts).
323. Id. (corporate-paid actors promote products in the public arena without the audience s awareness).
324. Id. at 1237 (projecting the company s political and social identity or making statements on important public issues).
329. Id. at 1273 (emphasis added).
331. Id. at 1272-73 (emphasis added).
334. See Vladeck, supra note 64. Since Alan Morrison s article in this Symposium is largely historical, and since he was the lead counsel in the Public Citizen s amicus brief to the Supreme Court signed by Vladeck, we presume that Vladeck s reasoning and results as to the four hypotheticals would be endorsed by Morrison.
Indeed, Nike s argument stands the rationale for New York Times on its head. The Court forged the New York Times standard to empower ordinary members of the public, who do not have ready access to the media or deep pockets to gain access to the media, to engage and criticize public officials, public figures, and powerful institutions, like the Nike Corporation. The Court assumed that the rich and powerful have ample means to make sure their voices are heard.
Id. at 1076.
338. As Professor Vladeck submitted an amicus brief in the Supreme Court arguing against Nike s First Amendment claims, it is clear that for him, as for Chemerinsky and Fisk, the stockholders meeting and the college coaches scenarios, based as they are on the background facts in the Nike case, would likely add nothing to save Nike. See supra notes 149-151.
339. Weinstein, supra note 64.
341. For Weinstein s critique of Professor Baker s article in this Symposium, see id. at 1128, 1135-37.
345. 418 U.S. 323, 348-49 (1974) (holding that the First Amendment forbids imposition of liability, in a defamation suit brought by a private person, regarding false statements on a matter of public concern without proof of negligence and actual damages).
346. Weinstein, supra note 64, at 1140-41.
347. Madonna, Material Girl, on Like a Virgin (Sire 1984).
348. Judge Alex Kozinski and Professor Stuart Banner have written thoughtfully on this very point. See Alex Kozinski & Stuart Banner, Who s Afraid of Commercial Speech?, 76 Va. L. Rev. 627, 628-29 (1990) (analyzing the judicial distinction between commercial and non-commercial speech during the latter half of the twentieth century). Given that insight, we forgive these two fine gentlemen for mischaracterizing our views, without malice no doubt as they just do not get our satire. See Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech, 71 Tex. L. Rev. 747, 748-49 (1993) (providing parallel analysis of First Amendment jurisprudence and suggesting that our analysis is anti-historical). Our initial response is set out in Ronald Collins & David Skover, The Psychology of First Amendment Scholarship: A Reply, 71 Tex. L. Rev. 819, 829 (1993) (rebutting the charges of anti-historicism).
349. Perhaps it is prudent to state the obvious: This part of our discussion concerns only corporate communications about its own identity or image advertising. By contrast, false or misleading corporate misrepresentations about the character, quality, or price of a product are obviously not beyond the pale of needed government regulation.
350. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
351. Respondent s Brief at 34, Nike (No. 02-575).
352. Steven H. Shiffrin, The First Amendment, Democracy, and Romance 5 (1990). Our friend and colleague, Steve Shiffrin, may take exception to some of what is said in this section of our Foreword. If so, we welcome his dissenting opinion.
353. See supra notes 6, 10, and 11.
354. Nike s Pyramid Scheme, supra note 11.
356. Brutality in Vietnam, supra note 6.
357. Nike Blinks, supra note 6.
359. Naomi Klein, No Logo 366 (2000).
360. More, much more, needs to be said about our proposal. Still, for the purposes of this Symposium, it is enough if we float this idea with the understanding that we may one day revise or repudiate it.
361. By this, we mean an evidentiary showing far stronger than that given by Suzuki against Consumers Union. See discussion, infra note 365 and accompanying text.
362. See generally George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out (1996).
363. Compare Mut. of Omaha Ins. Co. v. Novak, 836 F.2d 397 (8th Cir. 1987) (stating that trademarks are a form of property, and Mutual s rights therein need not yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist (citations omitted)), with Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (finding that a Danish rock-and-roll band s song Barbie Girl, parodizing Mattel s Barbie doll, was not an infringement of the toy company's trademark because the song s title was relevant to the underlying work and the song did not suggest that it was created by the toy company; moreover, the song was not purely commercial speech and was, accordingly, fully protected by the First Amendment), cert. denied, 537 U.S. 1171 (2003). Conceivably, a fortified First Amendment right of dissent might exceed even that recognized in Mattel to include uses of one entity s intellectual property to critique or parody another entity s image, products, or expressions.
364. Moreover, such suits collide with traditional notions of actionable causes and jurisdiction, both of which have long required plaintiffs to allege some real and personal injury. In this sense, jurisdictional requirements have buttressed First Amendment values.
365. The facts relating to the controversy described in this paragraph are documented in Suzuki Motor Corp. v. Consumers Union, 292 F.3d 1192 (9th Cir. 2002), panel opinion withdrawn, 330 F.3d 1110 (9th Cir. 2003), reprinted as amended, 330 F.3d 1110 (9th Cir. 2003), and cert. denied, 124 S. Ct. 468 (2003).
366. 330 F.3d at 1113 (Kozinski, J., dissenting), withdrawn, 330 F.3d 1110 (9th Cir. 2003), reprinted as amended, 330 F.3d 1110 (9th Cir. 2003), and cert. denied, 124 S. Ct. 468 (2003).