OCTOBER TERM, 2002
Syllabus
NIKE, INC., ET AL.
v. KASKY
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 02-575. Argued
April 23, 2003-Decided June 26, 2003 Certiorari dismissed. Reported
below: 27 Cal. 4th 939, 45 P. 3d 243.
Laurence H. Tribe argued the cause for petitioners. With him on
the briefs were Thomas C. Goldstein, Amy Howe, Walter Dellinger,
David J. Brown, and James N. Penrod.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General McCallum, Deputy Solicitor General
Clement, Jeffrey P. Minear, and Jeffrey A. Lamken.
Paul R. Hoeber argued the cause for respondent. With him on the
brief were Alan M. Caplan, Roderick P. Bushnell, Patrick J.
Coughlin, Randi Dawn Bandman, Albert H. Meyerhoff, and Sylvia Sum.
*
*Briefs of amici curiae urging reversal were filed for ABC Inc.
et al. by Bruce E. H. Johnson, P. Cameron DeVore, Kelli L. Sager,
Henry S. Hoberman, Theresa A. Chmara, Richard M. Schmidt, Jr.,
David A. Schulz, R. Bruce Rich, Jonathan Bloom, Susanna M. Lowy,
Anthony M. Bongiorno, Harold W Fuson, Jr., Jonathan R. Donnellan,
Stuart D. Karle, Barbara W Wall, Jack N. Goodman, James M.
Lichtman, Neal A. Jackson, George Freeman, Rene P. Milam, Henry Z.
Horbaczewski, Lucy A. Dalglish, Jane E. Kirtley, Bruce W Sanford,
Robin Bierstedt, Karlene W Goller, and Eric N. Lieberman; for the
American Civil Liberties Union et al. by Mark J. Lopez, Steven R.
Shapiro, and Ann Brick; for the American Federation of Labor and
Congress of Industrial Organizations by Jonathan P. Hiatt, James B.
Coppess, and Laurence Gold; for the Arthur W. Page Society et al.
by Bruce P. Keller and Michael R. Potenza; for the Association of
National Advertising, Inc., et al. by Howard J. Rubin and Cory
Greenberg; for the Business Roundtable by Carter G. Phillips, Alan
Charles Raul, and Joseph R. Guerra; for the Center for Individual
Freedom by Erik S. Jaffe and Renee L. Giachino; for the Center for
the Advancement of Capitalism by Thomas A. Bowden; for the Chamber
of Commerce of the United States of America by Kenneth W Starr,
Richard A.
655
PER CURIAM.
The writ of certiorari is dismissed as improvidently
granted.
Cordray, and
Robin S.
Conrad; for the Civil
Justice Association of California by
Fred J.
Hiestand; for Defenders of Property Rights et al. by
Nancie G.
Marzulla and
Roger J.
Marzulla; for ExxonMobil et al. by
David H. Remes;
for the National Association of Manufacturers by
Andrew L. Frey,
Andrew H. Schapiro, Kenneth S.
Geller, David M. Gossett,
Martin H. Redish, Jan S.
Amundson, and
Quentin
Riegel; for the Pacific Legal Foundation et al. by
Deborah J.
La Fetra; for Pfizer Inc. by
Bert W
Rein, Jeffrey B. Kindler, and
Steven C.
Kany; for
the Product Liability Advisory Council, Inc., by
Steven G.
Brody; for SRiMedia et al. by
Thomas H. Clarke, Jr.;
for the Thomas Jefferson Center for the Protection of Free
Expression et al. by
Robert M. O'Neil and J.
Joshua
Wheeler; and for the Washington Legal Foundation et al. by
Daniel J.
Popeo and
Richard A. Samp.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Bill Lockyer, Attorney
General of California,
Manuel Medeiros, State Solicitor
General,
Richard M. Frank, Chief Assistant Attorney General,
Herschel T. Elkins, Senior Assistant Attorney General, and
Ronald A. Reiter, Supervising Deputy Attorney General, and
by the Attorneys General for their respective jurisdictions as
follows:
Gregg D. Renkes of Alaska,
Terry Goddard of
Arizona,
Richard Blumenthal of Connecticut,
Charles
J.
Crist, Jr., of Florida,
Lisa Madigan of Illinois,
Richard Ieyoub of Louisiana, G.
Steven Rowe of Maine,
J.
Joseph Curran, Jr., of Maryland,
Mike Hatch of
Minnesota,
Patricia A. Madrid of New Mexico,
Eliot
Spitzer of New York,
Wayne Stenehjem of North Dakota,
Jim Petro of Ohio,
W A. Drew Edmondson of Oklahoma,
Anabelle Rodriguez of Puerto Rico,
Lawrence E. Long
of South Dakota,
William H. Sorrell of Vermont, and
Darrell V. McGraw, Jr., of West Virginia; for the Campaign
Legal Center by
Trevor Potter; for the Consumer Attorneys of
California by
Sharon J.
Arkin; for Domini Social
Investments LLC et al. by
James E. Pfander; for Global
Exchange by
William Aceves; for the National Association of
Consumer Advocates by
Robert M. Bramson; for Public Citizen
by
Alan B. Morrison, Allison M. Zieve, Scott L. Nelson, and
David C.
Vladeck; for ReclaimDemocracy.org by
Brenda Wright, Lisa J.
Danetz, John C.
Bonifaz, and
Bonita Tenneriello; for the Sierra Club
et al. by
Patrick Gallagher and
Thomas McGarity; and
for Representative Dennis
William Perry Pendley and
Joseph F.
Becker
filed a brief for the Mountain States Legal Foundation as
amicus
curiae.
656
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, and with whom
JUSTICE SOUTER joins as to Part III, concurring.
Beginning in 1996, Nike was besieged with a series of
allegations that it was mistreating and underpaying workers at
foreign facilities. See App. to Pet. for Cert. 3a. Nike responded
to these charges in numerous ways, such as by sending out press
releases, writing letters to the editors of various newspapers
around the country, and mailing letters to university presidents
and athletic directors. See id., at 3a4a. In addition, in 1997,
Nike commissioned a report by former Ambassador to the United
Nations Andrew Young on the labor conditions at Nike production
facilities. See id., at 67a. After visiting 12 factories, "Young
issued a report that commented favorably on working conditions in
the factories and found no evidence of widespread abuse or
mistreatment of workers."
Ibid.
In April 1998, respondent Marc Kasky, a California resident,
sued Nike for unfair and deceptive practices under California's
Unfair Competition Law, Cal. Bus. & Prof. Code Ann. § 17200
et seq. (West 1997), and False Advertising Law, § 17500
et seq. Respondent asserted that "in order to maintain
and/or increase its sales," Nike made a number of "false statements
and/or material omissions of fact" concerning the working
conditions under which Nike products are manufactured. Lodging of
Petitioners 2 (~ 1). Respondent alleged "no harm or damages
whatsoever regarding himself individually," id., at 4-5 (~ 8), but
rather brought the suit "on behalf of the General Public of the
State of California and on information and belief," id., at 3 (~
3).
Nike filed a demurrer to the complaint, contending that
respondent's suit was absolutely barred by the First Amendment. The
trial court sustained the demurrer without leave to amend and
entered a judgment of dismissal. App. to Pet. for Cert. 80a-81a.
Respondent appealed, and the California Court of Appeal affirmed,
holding that Nike's statements
657
"form[ed] part of a public dialogue on a matter of public
concern within the core area of expression protected by the First
Amendment."
Id., at 79a. The California Court of Appeal also
rejected respondent's argument that it was error for the trial
court to deny him leave to amend, reasoning that there was "no
reasonable possibility" that the complaint could be amended to
allege facts that would justify any restrictions on what was-in the
court's view-Nike's "noncommercial speech."
Ibid.
On appeal, the California Supreme Court reversed and remanded
for further proceedings. The court held that "[b]ecause the
messages in question were directed by a commercial speaker to a
commercial audience, and because they made representations of fact
about the speaker's own business operations for the purpose of
promoting sales of its products, ... [the] messages are commercial
speech." 27 Cal. 4th 939, 946, 45 P. 3d 243, 247 (2002). However,
the court emphasized that the suit "is still at a preliminary
stage, and that whether any false representations were made is a
disputed issue that has yet to be resolved."
Ibid.
We granted certiorari to decide two questions: (1) whether a
corporation participating in a public debate may "be subjected to
liability for factual inaccuracies on the theory that its
statements are 'commercial speech' because they might affect
consumers' opinions about the business as a good corporate citizen
and thereby affect their purchasing decisions"; and (2) even
assuming the California Supreme Court properly characterized such
statements as commercial speech, whether the "First Amendment, as
applied to the states through the Fourteenth Amendment, permit[s]
subjecting speakers to the legal regime approved by that court in
the decision below." Pet. for Cert. i. Today, however, the Court
dismisses the writ of certiorari as improvidently granted.
In my judgment, the Court's decision to dismiss the writ of
certiorari is supported by three independently sufficient
658
reasons: (1) the judgment entered by the California Supreme
Court was not final within the meaning of 28 U. S. C. § 1257; (2)
neither party has standing to invoke the jurisdiction of a federal
court; and (3) the reasons for avoiding the premature adjudication
of novel constitutional questions apply with special force to this
case.
I
The first jurisdictional problem in this case revolves around
the fact that the California Supreme Court never entered a final
judgment. Congress has granted this Court appellate jurisdiction
with respect to state litigation only after the highest state court
in which judgment could be had has rendered a final judgment or
decree. See
ibid. A literal interpretation of the statute
would preclude our review whenever further proceedings remain to be
determined in a state court, "no matter how dissociated from the
only federal issue" in the case.
Radio Station WOW; Inc. v.
Johnson, 326
U. S. 120, 124 (1945). We have, however, abjured such a
"mechanical" construction of the statute, and accepted 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 Broadcasting Corp. v.
Cohn, 420 U.
S. 469, 477 (1975).1
Nike argues that this case fits within the fourth category of
such cases identified in
Cox, which covers those cases in
which "the federal issue has been finally decided in the state
courts with further proceedings pending in which the party seeking
review" might prevail on nonfederal grounds, "reversal of the state
court on the federal issue would be preclusive of any further
litigation on the relevant cause of action,"
1 Notably, we recognized in
Cox that in most, if not all,
of these exceptional situations, the "additional proceedings
anticipated in the lower state courts ... would not require the
decision of other federal questions that might also require review
by the Court at a later date." 420 U. S., at 477.
659
and "refusal immediately to review the state-court decision
might seriously erode federal policy."
Id., at 482-483. In
each of the three cases that the Court placed in the fourth
category in
Cox, the federal issue had not only been finally
decided by the state court, but also would have been finally
resolved by this Court whether the Court agreed or disagreed with
the state court's disposition of the issue. Thus, in
Construction Laborers v.
Curry, 371 U. S. 542 (1963), the
federal issue was whether the National Labor Relations Board had
exclusive jurisdiction over the controversy; in
Mercantile Nat.
Bank at Dallas v.
Langdeau, 371 U. S. 555 (1963), the
federal issue was whether a special federal venue statute applied
to immunize the defendants in a state-court action; and in
Miami
Herald Publishing Co. v.
Tornillo, 418 U. S. 241 (1974),
the federal issue was whether a Florida statute requiring a
newspaper to carry a candidate's reply to an editorial was
constitutional. In
Cox itself, the federal question was
whether the State could prohibit the news media from publishing the
name of a rape victim. In none of those cases would the resolution
of the federal issue have been affected by further proceedings.
In Nike's view, this case fits within the fourth
Cox
category because if this Court holds that Nike's speech was
noncommercial, then "reversal of the state court on the federal
issue would be preclusive of any further litigation on the relevant
cause of action." 420 U. S., at 482-483; see also Reply Brief for
Petitioners 4; Reply to Brief in Opposition 4-5. Notably, Nike's
argument assumes that all of the speech at issue in this case is
either commercial or noncommercial and that the speech therefore
can be neatly classified as either absolutely privileged or
not.
Theoretically, Nike is correct that we could hold that
all of Nike's allegedly false statements are absolutely
privileged even if made with the sort of "malice" defined in
New
York Times Co. v.
Sullivan, 376 U. S. 254 (1964),
thereby precluding any further proceedings or amendments that might
over-
660
come Nike's First Amendment defense. However, given the
interlocutory posture of the case before us today, the Court could
also take a number of other paths that would neither preclude
further proceedings in the state courts, nor finally resolve the
First Amendment questions in this case. For example, if we were to
affirm, Nike would almost certainly continue to maintain that some,
if not all, of its challenged statements were protected by the
First Amendment and that the First Amendment constrains the remedy
that may be imposed. Or, if we were to reverse, we might hold that
the speech at issue in this case is subject to suit only if made
with actual malice, thereby inviting respondent to amend his
complaint to allege such malice. See Tr. of Oral Arg. 42-43. Or we
might conclude that some of Nike's speech is commercial and some is
noncommercial, thereby requiring further proceedings in the state
courts over the legal standards that govern the commercial speech,
including whether actual malice must be proved.
In short, because an opinion on the merits in this case could
take anyone of a number of different paths, it is not clear whether
reversal of the California Supreme Court would "be preclusive of
any further litigation on the relevant cause of action [in] the
state proceedings still to come."
Cox, 420 U. S., at
482-483. Nor is it clear that reaching the merits of Nike's claims
now would serve the goal of judicial efficiency. For, even if we
were to decide the First Amendment issues presented to us today,
more First Amendment issues might well remain in this case, making
piecemeal review of the Federal First Amendment issues likely. See
Flynt v.
Ohio, 451 U. S. 619, 621 (1981)
(per curiam) (noting that in most, if not all, of the cases
falling within the four
Cox exceptions, there was "no
probability of piecemeal review with respect to federal issues").
Accordingly, in my view, the judgment of the California Supreme
Court does not fall within the fourth
Cox exception and
cannot be regarded as final.
661
II
The second reason why, in my view, this Court lacks jurisdiction
to hear Nike's claims is that neither party has standing to invoke
the jurisdiction of the federal courts. See
Whitmore v.
Arkansas, 495
U. S. 149, 154-155 (1990) ("Article III, of course, gives the
federal courts jurisdiction over only 'cases and controversies,'
and the doctrine of standing serves to identify those disputes
which are appropriately resolved through the judicial process").
Without alleging that he has any personal stake in the outcome of
this case, respondent is proceeding as a private attorney general
seeking to enforce two California statutes on behalf of the general
public of the State of California. He has not asserted any federal
claim; even if he had attempted to do so, he could not invoke the
jurisdiction of a federal court because he failed to allege any
injury to himself that is "distinct and palpable."
Warth v.
Seldin, 422 U.
S. 490, 501 (1975). Thus, respondent does not have Article III
standing. For that reason, were the federal rules of justiciability
to apply in state courts, this suit would have been "dismissed at
the outset."
ASARCO Inc. v.
Kadish, 490 U. S. 605, 617
(1989).2
Even though respondent would not have had standing to commence
suit in federal court based on the allegations in the complaint,
Nike-relying on
ASARCO-contends that it has standing to
bring the case to this Court. See Reply Brief for Petitioners 5. In
ASARCO, a group of taxpayers brought a suit in state court
seeking a declaration that the State's law on mineral leases on
state lands was invalid. After the Arizona Supreme Court "granted
plaintiffs a declaratory judgment that the state law governing
mineral
2 Because the constraints of Article III do not apply in state
courts, see
ASARCO, 490 U. S., at 617, the California courts
are free to adjudicate this case.
662
leases is invalid," 490 U. S., at 611,3 the defendants sought to
invoke the jurisdiction of this Court. In holding that the
defendants had standing to invoke the jurisdiction of the federal
courts, we noted that the state proceedings had "resulted in a
final judgment altering tangible legal rights," id., at 619, and we
adopted the following rationale:
"When a state court has issued a judgment in a case where
plaintiffs in the original action had no standing to sue under the
principles governing the federal courts, we may exercise our
jurisdiction on certiorari if the judgment of the state court
causes direct, specific, and concrete injury to the parties who
petition for our review, where the requisites of a case or
controversy are also met." Id., at 623-624.
The rationale supporting our jurisdictional holding in
ASARCO, however, does not extend to this quite different
case. Unlike
ASARCO, in which the state-court proceedings
ended in a declaratory judgment invalidating a state law, no "final
judgment altering tangible legal rights" has been entered in the
instant case.
Id., at 619. Rather, the California Supreme
Court merely held that respondent's complaint was sufficient to
survive Nike's demurrer and to allow the case to go forward. To
apply
ASARCO to this case would effect a drastic expansion
of
ASARCO's reasoning, extending it to cover an
interlocutory ruling that merely allows a trial to proceed.4
Because I do not believe such a
3 The Arizona Supreme Court also remanded the case for the trial
court to determine what further relief might be appropriate. See
id., at 611. Thus, while leaving open the question of remedy on
remand, the statecourt judgment in ASARCO finally decided the
federal issue. See id., at 612 (holding that the federal issues had
been adjudicated by the state court and that the remaining issues
would not give rise to any further federal question).
4JUSTICE BREYER would extend ASARCO-which provides an exception
to our normal standing requirement-to encompass not merely a
defendant's challenge to an adverse state-court judgment but also
a
663
significant expansion of ASARCO is warranted, my view is that
Nike lacks the requisite Article III standing to invoke this
Court's jurisdiction.
III
The third reason why I believe this Court has appropriately
decided to dismiss the writ as improvidently granted centers around
the importance of the difficult First Amendment questions raised in
this case. As Justice Brandeis famously observed, the Court has
developed, "for its own governance in the cases confessedly within
its jurisdiction, a series of rules under which it has avoided
passing upon a large part of all the constitutional questions
pressed upon it for decision."
Ashwander v.
TVA,
297 U. S. 288,
346 (1936) (concurring opinion). The second of those rules is that
the Court will not anticipate a question of constitutional law in
advance of the necessity of deciding it.
Id., at 346347. The
novelty and importance of the constitutional questions presented in
this case provide good reason for adhering to that rule.
This case presents novel First Amendment questions because the
speech at issue represents a blending of commercial speech,
noncommercial speech and debate on an issue of public importance.5
See
post, at 676-678. On the one hand,
defendant's motion to dismiss a state-court complaint alleging
that semicommercial speech was false and misleading. See
post, at 668-670 (dissenting opinion). Regardless of whether
the "speech-chilling injury" associated with the defense of such a
case mayor may not outweigh the benefit of having a public forum in
which the defendant may establish the truth of the contested
statements, such an unprecedented expansion would surely change the
character of our standing doctrine, greatly extending
ASARCO's reach.
5 Further complicating the novel First Amendment issues in this
case is the fact that in this Court Nike seeks to challenge the
constitutionality of the private attorney general provisions of
California's Unfair Competition Law and False Advertising Law. It
apparently did not raise this specific challenge below. Whether the
scope of protection afforded to Nike's speech should differ
depending on whether the speech is challenged in a
664
if the allegations of the complaint are true, direct
communications with customers and potential customers that were
intended to generate sales-and possibly to maintain or enhance the
market value of Nike's stock-contained significant factual
misstatements. The regulatory interest in protecting market
participants from being misled by such misstatements is of the
highest order. That is why we have broadly (perhaps overbroadly)
stated that "there is no constitutional value in false statements
of fact."
Gertz v.
Robert Welch, Inc., 418 U. S. 323, 340
(1974). 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. See
Brief for American Federation of Labor and Congress of Industrial
Organizations as
Amicus Curiae 2. 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. See,
e. g.,
Brief for ExxonMobil et al. as
Amici Curiae 2; Brief for
Pfizer Inc. as
Amicus Curiae 11-12. That is why we have
provided such broad protection for misstatements about public
figures that are not animated by malice. See
New York Times
Co. v.
Sullivan, 376 U. S. 254 (1964).
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.
The correct answer to such questions, however, is more likely to
result from the study of a full factual record than from a review
of mere unproven allegations in a pleading. Indeed, the development
of such
public or a private enforcement action, see
post, at 678,
is a difficult and important question that I believe would benefit
from further development below.
665
a record may actually contribute in a positive way to the public
debate. In all events, I am firmly convinced that the Court has
wisely decided not to address the constitutional questions
presented by the certiorari petition at this stage of the
litigation.
Accordingly, I concur in the decision to dismiss the writ as
improvidently granted.
JUSTICE KENNEDY, dissenting.
I dissent from the order dismissing the writ of certiorari as
improvidently granted.
JUSTICE BREYER, with whom JUSTICE O'CONNOR joins,
dissenting.
During the 1990's, human rights and labor groups, newspaper
editorial writers, and others severely criticized the Nike
corporation for its alleged involvement in disreputable labor
practices abroad. See Lodging of Petitioners 7-8, 96-118,
127-162,232-235,272-273. This case focuses upon whether, and to
what extent, the First Amendment protects certain efforts by Nike
to respond-efforts that took the form of written communications in
which Nike explained or denied many of the charges made.
The case arises under provisions of California law that
authorize a private individual, acting as a "private attorney
general," effectively to prosecute a business for unfair
competition or false advertising. Cal. Bus. & Prof. Code Ann.
§§ 17200, 17204, 17500, 17535 (West 1997). The respondent, Marc
Kasky, has claimed that Nike made false or misleading commercial
statements. And he bases this claim upon statements that Nike made
in nine specific documents, including press releases and letters to
the editor of a newspaper, to institutional customers, and to
representatives of nongovernmental organizations. Brief for
Respondent 5.
The California Court of Appeal affirmed dismissal of Kasky's
complaint without leave to amend on the ground that
666
"the record discloses noncommercial speech, addressed to a topic
of public interest and responding to public criticism of Nike's
labor practices." App. to Pet. for Cert. 78a. The Court of Appeal
added that it saw "no merit to [Kasky's] scattershot argument that
he might still be able to state a cause of action on some theory
allowing content-related abridgement of noncommercial speech."
Id., at 79a.
Kasky appealed to the California Supreme Court. He focused on
the commercial nature of the communications at issue, while
pointing to language in this Court's cases stating that the First
Amendment, while offering protection to truthful commercial speech,
does not protect false or misleading commercial speech, see
Central Hudson Gas &
Elec. Corp. v.
Public
Servo Comm'n of N.
Y., 447 U. S. 557, 563
(1980). Kasky did not challenge the lower courts' denial of leave
to amend his complaint. He also conceded that, if Nike's statements
fell outside the category of "commercial speech," the First
Amendment protected them and "the ultimate issue is resolved in
Nike's favor." Appellant's Brief on the Merits in No. S087859
(Cal.), p. 1; accord, Appellant's Reply Brief in No. S087859
(Cal.), pp. 1-2.
The California Supreme Court held that the speech at issue falls
within the category of "commercial speech." Consequently, the
California Supreme Court concluded, the First Amendment does not
protect Nike's statements insofar as they were false or
misleading-regardless of whatever role they played in a public
debate. 27 Cal. 4th 939, 946, 969, 45 P. 3d 243, 247, 262 (2002).
Hence, according to the California Supreme Court, the First
Amendment does not bar Kasky's lawsuit-a lawsuit that alleges false
advertising and related unfair competition (which, for ease of
exposition, I shall henceforth use the words "false advertising" to
describe). The basic issue presented here is whether the California
Supreme Court's ultimate holding is legally correct. Does the First
Amendment permit Kasky's false advertising "prosecution" to go
forward?
667
After receiving 34 briefs on the merits (including 31
amicus briefs) and hearing oral argument, the Court
dismisses the writ of certiorari, thereby refusing to decide the
questions presented, at least for now. In my view, however, the
questions presented directly concern the freedom of Americans to
speak about public matters in public debate, no jurisdictional rule
prevents us from deciding those questions now, and delay itself may
inhibit the exercise of constitutionally protected rights of free
speech without making the issue significantly easier to decide
later on. Under similar circumstances, the Court has found that
failure to review an interlocutory order entails "an inexcusable
delay of the benefits [of appeal] Congress intended to grant."
Mills v.
Alabama, 384 U. S. 214, 217
(1966). I believe delay would be similarly wrong here. I would
decide the questions presented, as we initially intended.
I
Article Ill's "case or controversy" requirement does not bar us
from hearing this case. Article III requires a litigant to have
"standing"-i.
e., to show that he has suffered "injury in
fact," that the injury is "fairly traceable" to actions of the
opposing party, and that a favorable decision will likely redress
the harm.
Bennett v.
Spear, 520 U. S. 154, 162 (1997)
(internal quotation marks omitted). Kasky, the state-court
plaintiff in this case, might indeed have had trouble meeting those
requirements, for Kasky's complaint specifically states that Nike's
statements did not harm Kasky personally. Lodging of Petitioners
4-5 (~ 8). But Nike, the state-court defendant-not Kasky, the
plaintiff-has brought the case to this Court. And Nike has standing
to complain here of Kasky's actions.
These actions threaten Nike with "injury in fact." As a "private
attorney general," Kasky is in effect enforcing a state law that
threatens to discourage Nike's speech. See Cal. Bus. & Prof.
Code Ann. §§ 17204, 17535 (West 1997). This Court has often found
that the enforcement of such a
668
law works constitutional injury even if enforcement proceedings
are not complete-indeed, even if enforcement is no more than a
future threat. See,
e. g., Houston v.
Hill, 482 U. S.
451, 459, n. 7 (1987) (standing where there is "'a genuine threat
of enforcement'" against future speech);
Steffel v.
Thompson, 415
U. S. 452, 459 (1974) (same). Cf.
First Nat. Bank of
Boston v.
Bellotti, 435 U. S. 765, 785, n. 21
(1978) (The "burden and expense of litigating [an] issue" itself
can "unduly impinge on the exercise of the constitutional right");
Rosenbloom v.
Metromedia, Inc., 403 U. S. 29, 52-53 (1971)
(plurality opinion) ("The very possibility of having to engage in
litigation, an expensive and protracted process, is threat
enough"). And a threat of a civil action, like the threat of a
criminal action, can chill speech. See
New York Times Co. v.
Sullivan, 376
U. S. 254, 278 (1964) ("Plainly the Alabama law of civil libel
is 'a form of regulation that creates hazards to protected freedoms
markedly greater than those that attend reliance upon the criminal
law' ").
Here, of course, an action to enforce California's lawslaws that
discourage certain kinds of speech-amounts to more than just a
genuine, future threat. It is a present reality-one that
discourages Nike from engaging in speech. It thereby creates
"injury in fact."
Supra, at 667. Further, that injury is
directly "traceable" to Kasky's pursuit of this lawsuit. And this
Court's decision, if favorable to Nike, can "redress" that injury.
Ibid.
Since Nike, not Kasky, now seeks to bring this case to federal
court, why should Kasky's standing problems make a critical
difference? In
ASARCO Inc. v.
Kadish, 490 U. S. 605, 618
(1989), this Court specified that a defendant
with standing
may complain of an adverse state-court judgment, even if the
other party-the party who brought the suit in state court
and obtained that judgment-would have lacked standing to bring a
case in federal court. See also
Virginia v.
Hicks,
ante, at 120-121.
669
In ASARCO, state taxpayers (who ordinarily lack federal
"standing") sued a state agency in state court, seeking a judgment
declaring that the State's mineral leasing procedures violated
federal law. See 490 U. S., at 610. ASARCO and other mineral
leaseholders intervened as defendants.
Ibid. The plaintiff
taxpayers obtained a state-court judgment declaring that the
State's mineral leasing procedures violated federal law. The
defendant mineral leaseholders asked this Court to review the
judgment. And this Court held that the leaseholders had standing to
seek reversal of that judgment here.
The Court wrote:
"When a state court has issued a judgment in a case where
plaintiffs in the original action had no standing to sue under the
principles governing the federal courts, we may exercise our
jurisdiction on certiorari [1] if the judgment of the state court
causes direct, specific, and concrete injury to the parties who
petition for our review, where [2] the requisites of a case or
controversy are also met." Id., at 623-624 (bracketed
numbers added).
No one denies that "requisites of a case or controversy" other
than standing are met here. But is there "direct, specific, and
concrete injury"?
In ASARCO itself, such "injury" consisted of the threat, arising
out of the state court's determination, that the defendants' leases
might later be canceled (if, say, a third party challenged those
leases in later proceedings and showed they were not "made for
'true value"').
Id., at 611-612, 618. Here that "injury"
consists of the threat, arising out of the state court's
determination, that defendant Nike's speech on public matters might
be "chilled" immediately and legally restrained in the future. See
supra, at 668. Where is the meaningful difference?
670
I concede that the state-court determination in ASARCO was more
"final" in the sense that it unambiguously ordered a declaratory
judgment, see 490 U. S., at 611-612 (finding that two exceptions to
normal finality requirements applied), while the state-court
determination here, where such declaratory relief was not sought,
takes the form of a more intrinsically interlocutory holding, see
ante, at 662, and n. 4 (STEVENS, J., concurring). But with
respect to "standing," what possible difference could that
circumstance make? The state court in ASARCO finally resolved
federal questions related to state leasehold procedures; the state
court here finally resolved the basic free speech issue-deciding
that Nike's statements constituted "commercial speech" which, when
"false or misleading," the government "may entirely prohibit," 27
Cal. 4th, at 946, 45 P. 3d, at 247. After answering the basic
threshold question, the state court in ASARCO left other, more
specific questions for resolution in further potential or pending
proceedings, 490 U. S., at 611-612. The state court here did the
same.
In ASARCO, the relevant further proceedings might have taken
place in a new lawsuit; here they would have taken place in the
same lawsuit. But that difference has little bearing on the
likelihood of injury. Indeed, given the nature of the
speech-chilling injury here and the fact that it is likely to occur
immediately, I should think that constitutional standing in this
case would flow from standing in ASARCO
a fortiori.
II
No federal statute prevents us from hearing this case.
The relevant statute limits our jurisdiction to
"[f]inal
judgments or decrees rendered by the highest court of a State
in which a decision could be had." 28 U. S. C. § 1257(a) (emphasis
added). But the California Supreme Court determination before us,
while technically an interim decision, is a "final judgment or
decree" for purposes of this statute.
671
That is because this Court has interpreted the statute's phrase
"final judgment" to refer, in certain circumstances, to a state
court's final determination of a federal issue, even if the
determination of that issue occurs in the midst of ongoing
litigation.
Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469, 477
(1975). In doing so, the Court has said that it thereby takes a
"pragmatic approach," not a "mechanical" approach, to
"determining finality."
Id., at 477, 486 (emphasis added).
And it has set forth several criteria that determine when an
interim state-court judgment is "final" for purposes of the
statute, thereby permitting our consideration of the federal matter
at issue.
The four criteria relevant here are those determining whether a
decision falls within what is known as
Cox's "fourth
category" or "fourth exception." They consist of the following:
(1) "the federal issue has been finally decided in the state
courts";
(2) in further pending proceedings, "the party seeking review
here might prevail on the merits on nonfederal grounds, thus
rendering unnecessary review of the federal issue by this
Court";
(3) "reversal of the state court on the federal issue would be
preclusive of any further litigation on the relevant cause of
action rather than merely controlling the nature and character of,
or determining the admissibility of evidence in, the state
proceedings still to come"; and
(4) "a refusal immediately to review the state-court decision
might seriously erode federal policy." Id., at 482-483.
Each of these four conditions is satisfied in this case.
A
Viewed from
Cox's "pragmatic" perspective, "the federal
issue has been finally decided in the state courts."
Id.,
at
672
482, 486. The California Supreme Court considered nine specific
instances of Nike's communications-those upon which Kasky says he
based his legal claims. Brief for Respondent 5. These include (1) a
letter from Nike's Director of Sports Marketing to university
presidents and athletic directors presenting "facts" about Nike's
labor practices; (2) a 30-page illustrated pamphlet about those
practices; (3) a press release (posted on Nike's Web site)
commenting on those practices; (4) a posting on Nike's Web site
about its "code of conduct"; (5) a document on Nike's letterhead
sharing its "perspective" on the labor controversy; (6) a press
release responding to "[s]weatshop [a]llegations"; (7) a letter
from Nike's Director of Labor Practices to the Chief Executive
Officer of YWCA of America, discussing criticisms of its labor
practices; (8) a letter from Nike's European public relations
manager to a representative of International Restructuring
Education Network Europe, discussing Nike's practices; and (9) a
letter to the editor of The New York Times taking issue with a
columnist's criticisms of Nike's practices.
Ibid.; see also
Lodging of Petitioners 121-125, 182-191, 198-230, 270, 285,
322-324. The California Supreme Court then held that all this
speech was "commercial speech" and consequently the "governmen[t]
may entirely prohibit" that speech if it is "false or misleading."
27 Cal. 4th, at 946, 45 P. 3d, at 247.
The California Supreme Court thus "finally decided" the federal
issue-whether the First Amendment protects the speech in question
from legal attack on the ground that it is "false or misleading."
According to the California Supreme Court, nothing at all remains
to be decided with respect to that federal question. If we permit
the California Supreme Court's decision to stand, in all likelihood
this litigation will now simply seek to determine whether Nike's
statements were false or misleading, and perhaps whether Nike was
negligent in making those statements-matters involving questions of
California law.
673
I concede that some other, possibly related federal
constitutional issue
might arise upon remand for trial. But
some such likelihood is always present in ongoing litigation,
particularly where, as in past First Amendment cases, this Court
reviews interim state-court decisions regarding, for example,
requests for a temporary injunction or a stay pending appeal, or
(as here) denial of a motion to dismiss a complaint. E. g.,
National Socialist Party of America v.
Skokie,
432 U. S. 43
(1977)
(per curiam) (denial of a stay pending appeal);
Organization for a Better Austin v.
Keefe, 402 U. S. 415 (1971)
(temporary injunction);
Mills v.
Alabama, 384 U. S. 214 (1966)
(motion to dismiss).
Some such likelihood was present in
Cox itself. The
Cox plaintiff, the father of a rape victim, sued a newspaper
in state court, asserting a right to damages under state law, which
forbade publication of a rape victim's name. The trial court,
believing that the statute imposed strict liability on the
newspaper, granted summary judgment in favor of the victim. See
Cox Broadcasting Corp. v.
Cohn, 231 Ga. 60, 64, 200
S. E. 2d 127, 131 (1973), rev'd,
420 U. S. 469 (1975). The
State Supreme Court affirmed in part and reversed in part. That
court agreed with the plaintiff that state law provided a cause of
action and that the cause of action was consistent with the First
Amendment. 231 Ga., at 64, 200 S. E. 2d, at 131. However, the State
Supreme Court disagreed about the standard of liability. Rather
than strict liability, the standard, it suggested, was one of
"wilful or negligent disregard for the fact that reasonable men
would find the invasion highly offensive."
Ibid. And it
remanded the case for trial. The likelihood that further
proceedings would address federal constitutional issues-concerning
the relation between, for instance, the nature of the privacy
invasion, the defendants' state of mind, and the First
Amendmentwould seem to have been far higher there than in any
further proceedings here. Despite that likelihood, and because the
State Supreme Court held in effect that the First Amend-
674
ment did not protect the speech at issue, this Court held that
its determination of that constitutional question was "plainly
final."
Cox, 420 U. S., at 485. California's Supreme Court
has made a similar holding, and its determination of the federal
issue is similarly "final."
B
The second condition specifies that, in further proceedings, the
"party seeking review here"-i.
e., Nike-"might prevail on
the merits on nonfederal grounds."
Id., at 482. If Nike
shows at trial that its statements are neither false nor
misleading, nor otherwise "unfair" under California law, Cal. Bus.
& Prof. Code Ann. §§ 17200, 17500 (West 1997), it will show
that those statements did not constitute unfair competition or
false advertising under California law-a nonfederal ground. And it
will "prevail on the merits on nonfederal grounds,"
Cox, 420
U. S., at 482. The second condition is satisfied.
C
The third condition requires that "reversal of the state court
on the federal issue ... be preclusive of any further litigation on
the relevant cause of action."
Id., at 482-483. Taken
literally, this condition is satisfied. An outright reversal of the
California Supreme Court would reinstate the judgment of the
California intermediate court, which affirmed dismissal of the
complaint without leave to amend.
Supra, at 665-666. It
would forbid Kasky to proceed insofar as Kasky's state-law claims
focus on the nine documents previously discussed. And Kasky has
conceded that his claims rest on statements made in those
documents. Brief for Respondent 5.
I concede that this Court might not reverse the California
Supreme Court outright. It might take some middle ground, neither
affirming nor fully reversing, that permits this litigation to
continue. See ante, at 659-660 (STEVENS, J., concurring). But why
is that possibility relevant? The
675
third condition specifies that
"reversal"-not some
other disposition-will preclude "further litigation."
The significance of this point is made clear by our prior cases.
In
Cox, this Court found jurisdiction despite the fact that
it
might have chosen a middle First Amendment
ground-perhaps, for example, precluding liability (for publication
of a rape victim's name) where based on negligence, but not where
based on malice. And such an intermediate ground, while producing a
judgment that the State Supreme Court decision was erroneous, would
have permitted the litigation to go forward. Cf. Brief for
Appellants in
Cox Broadcasting Corp. v.
Cohn, O. T.
1973, No. 73-938, p. 68, n. 127 (arguing that "'summary judgment,
rather than trial on the merits, is a proper vehicle for affording
constitutional protection' "). Similarly in
Miami Herald
Publishing Co. v.
Tornillo, 418 U. S. 241 (1974), the
Court might have held that the Constitution permits a State to
require a newspaper to carry a candidate's reply to an
editorial-but only
in certain circumstances-thereby
potentially leaving a factual issue whether those circumstances
applied. Cf. Brief for Appellant in
Miami Herald Publishing
Co. v.
Tornillo, O. T. 1973, No. 73-797, pp. 26-27, and
n. 60 (noting that the State Supreme Court based its decision in
part on a conclusion, unsupported by record evidence, that control
of mass media had become substantially concentrated). One can
imagine similar intermediate possibilities in virtually every case
in which the Court has found this condition satisfied, including
those involving technical questions of statutory jurisdiction and
venue, cf.
ante, at 659 (STEVENS, J., concurring).
Conceivably, one might argue that the third condition is
not satisfied here despite literal compliance, see
supra, at 674 and this page, on the ground that, from a
pragmatic perspective, outright reversal is not a very realistic
possibility. But that proposition simply is not so. In my view, the
probabilities are precisely the contrary, and a true reversal is a
highly realistic possibility.
676
To understand how I reach this conclusion, the reader must
recall the nature of the holding under review. The California
Supreme Court held that certain specific communications,
exemplified by the nine documents upon which Kasky rests his case,
fall within that aspect of the Court's commercial speech doctrine
that says the First Amendment protects only
truthful
commercial speech; hence, to the extent commercial speech is false
or misleading, it is unprotected. See
supra, at 666.
The Court, however, has added, in commercial speech cases, that
the First Amendment" 'embraces at the least the liberty to discuss
publicly and truthfully all matters of public concern.'"
Consolidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N.
Y., 447 U. S. 530, 534
(1980); accord,
Central Hudson, 447 U. S., at 562-563, n. 5.
And in other contexts the Court has held that speech on matters of
public concern needs" 'breathing space' "-potentially incorporating
certain false or misleading speech-in order to survive.
New York
Times, 376 U. S., at 272; see also,
e. g., Gertz v.
Robert Welch, Inc., 418 U. S. 323, 340
(1974);
Time, Inc. v.
Hill, 385 U. S. 374, 388-389
(1967).
This case requires us to reconcile these potentially conflicting
principles. In my view, a proper resolution here favors application
of the last mentioned public-speech principle, rather than the
first mentioned commercial-speech principle. Consequently, I would
apply a form of heightened scrutiny to the speech regulations in
question, and I believe that those regulations cannot survive that
scrutiny.
First, the communications at issue are not purely commercial in
nature. They are better characterized as involving a mixture of
commercial and noncommercial (public-is sueoriented) elements. The
document
least likely to warrant protection-a letter written
by Nike to university presidents and athletic directors-has several
commercial characteristics. See Appendix,
infra (reproducing
pages 190 and 191 of Lodging of Petitioners). As the California
Supreme Court
677
implicitly found, 27 Cal. 4th, at 946, 45 P. 3d, at 247, it was
written by a "commercial speaker" (Nike), it is addressed to a
"commercial audience" (potential institutional buyers or
contractees), and it makes "representations of fact about the
speaker's own business operations" (labor conditions).
Ibid.
See,
e. g., Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60,
66-67 (1983).
But that letter also has other critically important and, I
believe, predominant noncommercial characteristics with which the
commercial characteristics are "inextricably intertwined."
Riley v.
National Federation of Blind of N. c.,
Inc., 487 U.
S. 781, 796 (1988). For one thing, the letter appears outside a
traditional advertising format, such as a brief television or
newspaper advertisement. It does not propose the presentation or
sale of a product or any other commercial transaction,
United
States v.
United Foods, Inc., 533 U. S. 405, 409 (2001)
(describing this as the "usua[l]" definition for commercial
speech). Rather, the letter suggests that its contents might
provide "information useful in discussions" with concerned faculty
and students. Lodging of Petitioners 190. On its face, it seeks to
convey information to "a diverse audience," including individuals
who have "a general curiosity about, or genuine interest in," the
public controversy surrounding Nike,
Bigelow v.
Virginia, 421
U. S. 809, 822 (1975).
For another thing, the letter's content makes clear that, in
context, it concerns a matter that is of significant public
interest and active controversy, and it describes factual matters
related to that subject in detail. In particular, the letter
describes Nike's labor practices and responds to criticism of those
practices, and it does so because those practices themselves play
an important role in an existing public debate. This debate was one
in which participants advocated, or opposed, public collective
action. See,
e. g., Lodging of Petitioners 143 (article on
student protests), 232-236 (fact sheet with "Boycott Nike"
heading). See generally
Roth v.
678
United States, 354 U. S. 476, 484 (1957)
(The First Amendment's protections of speech and press were
"fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes"). That the letter
is factual in content does not argue against First Amendment
protection, for facts, sometimes facts alone, will sway our views
on issues of public policy.
These circumstances of form and content distinguish the speech
at issue here from the more purely "commercial speech" described in
prior cases. See,
e. g., United Foods, supra, at 409
(commercial speech "usually defined as speech that does
no more
than propose a commercial transaction" (emphasis added));
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S.
469, 473-474 (1989) (describing this as "the test");
Central
Hudson, 447 U. S., at 561 (commercial speech defined as
"expression related
solely to the economic interests of the
speaker and its audience" (emphasis added)). The speech here is
unlike speech-say, the words "dolphinsafe tuna"-that commonly
appears in more traditional advertising or labeling contexts. And
it is unlike instances of speech where a communication's
contribution to public debate is peripheral, not central, cf. id.,
at 562-563, n. 5.
At the same time, the regulatory regime at issue here differs
from traditional speech regulation in its use of private attorneys
general authorized to impose "false advertising" liability even
though they themselves have suffered no harm. See Cal. Bus. &
Prof. Code Ann. §§ 17204, 17535 (West 1997). In this respect, the
regulatory context is unlike most traditional false advertising
regulation. And the "false advertising" context differs from other
regulatory contexts-say, securities regulation-where a different
balance of concerns calls for different applications of First
Amendment principles. Cf.
Ohralik v.
Ohio State Bar
Assn., 436 U. S.
447, 456-457 (1978).
These three sets of circumstances taken together-circumstances
of format, content, and regulatory context-warrant
679
treating the regulations of speech at issue differently from
regulations of purer forms of commercial speech, such as simple
product advertisements, that we have reviewed in the past. And,
where all three are present, I believe the First Amendment demands
heightened scrutiny.
Second, I doubt that this particular instance of regulation
(through use of private attorneys general) can survive heightened
scrutiny, for there is no reasonable "fit" between the burden it
imposes upon speech and the important governmental "'interest
served,'"
Fox, supra, at 480. Rather, the burden imposed is
disproportionate.
I do not deny that California's system of false advertising
regulation-including its provision for private causes of
action-furthers legitimate, traditional, and important public
objectives. It helps to maintain an honest commercial marketplace.
It thereby helps that marketplace better allocate private goods and
services. See
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 765
(1976). It also helps citizens form "intelligent opinions as to how
[the marketplace] ought to be regulated or altered."
Ibid.
But a private "false advertising" action brought on behalf of
the State, by one who has suffered no injury, threatens to impose a
serious burden upon speech-at least if extended to encompass the
type of speech at issue under the standards of liability that
California law provides, see Cal. Bus. & Prof. Code Ann. §§
17200, 17500 (West 1997) (establishing regimes of strict liability,
as well as liability for negligence);
Cortez v.
Purolator
Air Filtration Products Co., 23 Cal. 4th 163, 181, 999 P. 2d
706, 717 (2000) (stating that California's unfair competition law
imposes strict liability). The delegation of state authority to
private individuals authorizes a purely ideological plaintiff,
convinced that his opponent is not telling the truth, to bring into
the courtroom the kind of political battle better waged in other
forums. Where that political battle is hard fought, such plaintiffs
potentially constitute
680
a large and hostile crowd freely able to bring prosecutions
designed to vindicate their beliefs, and to do so unencumbered by
the legal and practical checks that tend to keep the energies of
public enforcement agencies focused upon more purely economic harm.
Cf.
Forsyth County v.
Nationalist Movement, 505 U. S. 123, 134-135
(1992);
Bantam Books, Inc.
That threat means a commercial speaker must take particular
care-considerably more care than the speaker's noncommercial
opponents-when speaking on public matters. A large organization's
unqualified claim about the adequacy of working conditions, for
example, could lead to liability, should a court conclude after
hearing the evidence that enough exceptions exist to warrant
qualification-even if those exceptions were unknown (but perhaps
should have been known) to the speaker. Uncertainty about how a
court will view these, or other, statements, can easily chill a
speaker's efforts to engage in public debate-particularly where a
"false advertising" law, like California's law, imposes liability
based upon negligence or without fault. See
Gertz, 418 U.
S., at 340;
Time, 385 U. S., at 389. At the least, they
create concern that the commercial speaker engaging in public
debate suffers a handicap that noncommercial opponents do not. See
First Nat. Bank, 435 U. S., at 785-786; see also
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
828 (1995).
At the same time, it is difficult to see why California needs to
permit such actions by private attorneys general-at least with
respect to speech that is not "core" commercial speech but is
entwined with, and directed toward, a more general public debate.
The Federal Government regulates unfair competition and false
advertising in the absence of such suits. 15 U. S. C. § 41
et
seq. As far as I can tell, California's delegation of the
government's enforcement authority to private individuals is not
traditional, and may be unique, Tr. of Oral Arg. 42. I do not see
how "false advertising"
681
regulation could suffer serious impediment if the Constitution
limited the scope of private attorney general actions to
circumstances where more purely commercial and less
public-debate-oriented elements predominate. As the historical
treatment of speech in the labor context shows, substantial
government regulation can coexist with First Amendment protections
designed to provide room for public debate. Compare,
e. g.,
NLRB v.
Gissel Packing Co., 395 U. S. 575, 616-620
(1969) (upholding prohibition of employer comments on unionism
containing threats or promises), with
Thomas v.
Collins, 323
U. S. 516, 531-532 (1945);
Thornhill
These reasons convince me that it is likely, if not highly
probable, that, if this Court were to reach the merits, it would
hold that heightened scrutiny applies; that, under the
circumstances here, California's delegation of enforcement
authority to private attorneys general disproportionately burdens
speech; and that the First Amendment consequently forbids it.
Returning to the procedural point at issue, I believe this
discussion of the merits shows that not only will "reversal" of the
California Supreme Court "on the federal issue" prove "preclusive
of any further litigation on the relevant cause of action,"
Cox, 420 U. S., at 482-483, but also such "reversal" is a
serious possibility. Whether we take the words of the third
condition literally or consider the circumstances pragmatically,
that condition is satisfied.
D
The fourth condition is that "a refusal immediately to review
the state-court decision might seriously erode federal policy."
Id., at 483. This condition is met because refusal
immediately to review the state-court decision before us will
"seriously erode" the federal constitutional policy in favor of
free speech.
682
If permitted to stand, the state court's decision may well
"chill" the exercise of free speech rights. See id., at 486;
Fort Wayne Books, Inc. v.
Indiana, 489 U. S. 46, 56 (1989).
Continuation of this lawsuit itself means increased expense, and,
if Nike loses, the results may include monetary liability (for
"restitution") and injunctive relief (including possible corrective
"counterspeech"). See,
e. g., Cel-Tech Communications, Inc.
v.
Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 179,
973 P. 2d 527, 539 (1999);
Consumers Union of U. S., Inc. v.
Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 971-972, 6
Cal. Rptr. 2d 193, 197-198 (1992). The range of communications
subject to such liability is broad; in this case, it includes a
letter to the editor of The New York Times. The upshot is that
commercial speakers doing business in California may hesitate to
issue significant communications relevant to public debate because
they fear potential lawsuits and legal liability. Cf.
Gertz,
supra, at 340 (warning that overly stringent liability for
false or misleading speech can "lead to intolerable
self-censorship");
Time, supra, at 389 ("Fear of large
verdicts in damage suits for innocent or merely negligent
misstatement, even fear of the expense involved in their defense,
must inevitably cause publishers to 'steer ... wider of the
unlawful zone' ").
This concern is not purely theoretical. Nike says without
contradiction that because of this lawsuit it has decided "to
restrict severely all of its communications on social issues that
could reach California consumers, including speech in national and
international media." Brief for Petitioners 39. It adds that it has
not released its annual Corporate Responsibility Report, has
decided not to pursue a listing in the Dow Jones Sustainability
Index, and has refused "dozens of invitations ... to speak on
corporate responsibility issues."
Ibid. Numerous
amici-including some who do not believe that Nike has fully and
accurately explained its labor practices-argue that California's
decision will "chill" speech and
683
thereby limit the supply of relevant information available to
those, such as journalists, who seek to keep the public informed
about important public issues. Brief for American Federation of
Labor and Congress of Industrial Organizations as
Amicus
Curiae 2-3; Brief for Chamber of Commerce of the United States
of America as
Amicus Curiae 10-12; Brief for ABC Inc. et al.
as
Amici Curiae 6-13; Brief for Pfizer Inc. as
Amicus
Curiae 10-14.
In sum, all four conditions are satisfied here. See
supra, at 671. Hence, the California Supreme Court's
judgment falls within the scope of the term "final" as it appears
in 28 U. S. C. § 1257(a), and no statute prevents us from deciding
this case.
III
There is no strong prudential argument against deciding the
questions presented. Compare
ante, at 663-664 (STEVENS, J.,
concurring), with
Ashwander v.
TVA, 297 U. S. 288, 346-348
(1936) (Brandeis, J., concurring). These constitutional questions
are not easy ones, for they implicate both free speech and
important forms of public regulation. But they arrive at the
threshold of this case, asking whether the Constitution permits
this private attorney general's lawsuit to go forward on the basis
of the pleadings at hand. This threshold issue was vigorously
contested and decided, adverse to Nike, below. Cf.
Yee v.
Escondido, 503
U. S. 519, 534-535 (1992). And further development of the
record seems unlikely to make the questions presented any easier to
decide later.
At the same time, waiting extracts a heavy First Amendment
price. If this suit goes forward, both Nike and other potential
speakers, out of reasonable caution or even an excess of caution,
may censor their own expression well beyond what the law may
constitutionally demand. See
Time, 385 U. S., at 389;
Gertz, 418 U. S., at 340. That is what a "chilling effect"
means. It is present here.
684
IV
In sum, I can find no good reason for postponing a decision in
this case. And given the importance of the First Amendment concerns
at stake, there are strong reasons not to do so. The position of at
least one
amicus-opposed to Nike on the merits of its labor
practice claims but supporting Nike on its free speech claim-echoes
a famous sentiment reflected in the writings of Voltaire: 'I do not
agree with what you say, but I will fight to the end so that you
may say it.' See Brief for American Federation of Labor and
Congress of Industrial Organizations as
Amicus Curiae 3. A
case that implicates that principle is a case that we should
decide.
I would not dismiss as improvidently granted the writ issued in
this case. I respectfully dissent from the Court's contrary
determination.
685
APPENDIX TO OPINION OF BREYER, J.
What follows is a copy of the letter to university presidents
and athletic directors at issue in this case, Lodging of
Petitioners 190-191:
686
Appendix to opinion of BREYER, J.
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