NIKE, INC., ET AL. v. KASKY
No. 02-575
Supreme Court of the United States
Argued April 23, 2003—Decided June 26, 2003
539 U.S. 654
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, René 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.
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 Rodríguez 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 J. Kucinich et al. by Erwin Chemerinsky and Catherine Fisk.
William Perry Pendley and Joseph F. Becker filed a brief for the Mountain States Legal Foundation as amicus curiae.
PER CURIAM.
The writ of certiorari is dismissed as improvidently granted.
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 3a–4a. 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,
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
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
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,”
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-
In short, because an opinion on the merits in this case could take any one 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.
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
“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
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 346–347. 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,
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
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.
The California Court of Appeal affirmed dismissal of Kasky‘s complaint without leave to amend on the ground that
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 Serv. 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?
I
Article III‘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
Here, of course, an action to enforce California‘s laws—laws 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.
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?
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.”
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:
- “the federal issue has been finally decided in the state courts“;
- 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“;
- “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
- “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
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.
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 Amendment—would 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-
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,
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
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.
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 Serv. 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-issue-oriented) 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
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. 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 “dolphin-safe 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
These three sets of circumstances taken together—circumstances of format, content, and regulatory context—warrant
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
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.
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.
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
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
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.
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.
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:
June 18, 1996
Dear President and Director of Athletics,
As most of you have probably read, heard or seen, NIKE, Inc. has recently come under attack from the Made in the USA Foundation, and other labor organizers, who claim that child labor is used in the production of its goods. While you may also be aware that NIKE has gone on the record to categorically deny these allegations as completely false and irresponsible, I would like to extend the courtesy of providing you with many of the facts that have been absent from the media discourse on this issue. I hope you will find this information useful in discussions with faculty and students who may be equally disturbed by these charges.
First and foremost, wherever NIKE operates around the globe, it is guided by principles set forth in a code of conduct that binds its production subcontractors to a signed Memorandum of Understanding. This Memorandum strictly prohibits child labor, and certifies compliance with applicable government regulations regarding minimum wage and overtime, as well as occupational health and safety, environmental regulations, worker insurance and equal opportunity provisions.
NIKE enforces its standards through daily observation by staff members who are responsible for monitoring adherence to the Memorandum. NIKE currently employs approximately 800 staff members in Asia alone to oversee operations. Every NIKE subcontractor knows that the enforcement of the Memorandum includes systematic, unannounced evaluation by third-party auditors. These thorough reviews include interviews with workers, examination of safety equipment and procedures, review of free health-care facilities, investigation of worker grievances and audits of payroll records.
Furthermore, over the past 20 years we have established long-term relationships with select subcontractors, and we believe that our sense of corporate responsibility has influenced the way they conduct their business. After all, it is incumbent upon leaders like NIKE to ensure that these violations do not occur in our subcontractor‘s factories.
NIKE INC. ONE BOWLRMAN DRIVE, BEAVERTON, OR 97005-6453 (503) 671-6453 FAX: (503) 671-6300
June 18, 1996
Page 2
We have found over the years that, given the vast area of our operations and the difficulty of policing such a network, some violations occur. However, we have been proud that in all material respects the code of conduct is complied with. The code is not just words. We live by it. NIKE is proud of its contribution in helping to build economies, provide skills, and create a brighter future for millions of workers around the world.
As a former Director of Athletics, and currently the Director of Sports Marketing at NIKE, I am indeed sensitive to these issues. I would be more than happy to make myself available to either discuss the issues and/or receive any opinions or insights you may have. We are committed to the world of sports and all that it stands for. I remain at your disposal.
Kindest regards,
Steve Miller
Director
NIKE Sports Marketing
SM:en
cc: Philip H. Knight
Donna Gibbs
Kit Morris
Erin Patton