The Supreme Court 6/26/03 dismissed the writ of certiorari in this case as improvidently granted. Nike arose out of Nike’s efforts to answer critics who accused it of mistreating and underpaying foreign workers. Mark Kasky sued Nike for what amounted to false advertising under the "private attorney general" provisions of two California statutes. Nike argued that the First Amendment barred the suit. The California Supreme Court held that Nike’s statements defending itself were a form of “commercial speech” subject to regulation. That court remanded for further proceedings, noting that it was not clear whether Nike had made any false statements. The U.S. Supreme Court granted certiorari to answer two questions: (1) whether a corporation participating in a public debate may face liability for false advertising on the ground that its statements are a form of commercial speech designed to affect consumer behavior; and (2) assuming a corporation’s statements in a public debate are commercial speech, whether the First Amendment permits a legal regime like California’s. Justice Stevens, joined by Justice Ginsburg in full and Justice Souter in part, concurred to explain three grounds for dismissing the writ: the judgment was not final, neither party had standing to invoke the jurisdiction of the Court, and pragmatic reasons counseled against premature adjudication of the important constitutional questions presented. Justices O’Connor, Kennedy, and Breyer dissented from the dismissal.The case is important to all businesses and could have far-reaching effects on state and federal law regulating advertising. The issue could return to the Supreme Court in the future.
The NAM filed an amicus brief 2/28/03 supporting Nike. We argued that a manufacturer responding to attacks on its products or business practices should enjoy the same protections enjoyed by others who enter public debate. The Supreme Court has already recognized that just because there is an economic motivation does not mean that the speech is any less protected under the First Amendment.