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Supreme Court’s Nike Decision is Right for Consumers

June 26, 2003

Supreme Court’s Nike Decision is Right for Consumers


Statement of Alan Morrison, Director of the Public Citizen Litigation Group

The Supreme Court’s surprising decision not to rule on the difficult First Amendment issues raised in Nike v. Kasky was proper under the special circumstances of this case. In its amicus brief, Public Citizen urged the Court to decide the case on the narrowest possible ground: because at least one of the statements at issue made by Nike was directed at its customers, the First Amendment does not bar the case from proceeding to discovery and perhaps trial. Although the Court did not formally rule on that precise issue, the effect of the decision is, as Public Citizen urged, to send the case back to the California courts to develop the factual and legal issues that went unexplored on the first round of briefing.

Usually, when the High Court dismisses a case as improvidently granted, as it did today, there are no explanations. In this case, Justice Breyer issued a lengthy dissent that was joined by Justice O’Connor, to which Justices Stevens, Ginsburg and Souter (in part) responded. As a result, we can see that the Court was persuaded by many of the factors that Public Citizen called to the Court’s attention in its brief – that all of Nike’s statements are not necessarily identical in terms of the First Amendment protection to which they are entitled, that the factual context for many of the statements needed further development, that many issues of California law had not been resolved (largely because they had not been presented to a lower court), and that these difficult questions should not be decided on a record that was as barren as this one.

Despite Nike’s predictions that it will be forced to censor itself until this case is finally resolved in its favor, we doubt that Nike will shut down its public relations office and refrain from commenting on all matters of public controversy. What we do expect is that Nike will be much more careful when it tries to influence consumers by making claims about how it treats its overseas workers – which is what this case is all about. While Nike and its supporters denounced the case for its chilling effect on the speech of corporate America, a broad victory of the kind that Nike sought might put a significant damper on efforts by federal and state regulators to assure that sellers of products and services do not seek to avoid laws on truthful advertising and promotion by claiming that an issue involves important public policies.


To read Public Citizen’s amicus brief, click here.