() 100 U.S. 1
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[ Kennedy ]
[ Breyer ]
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Breyer, J., dissenting


No. 02—575



[June 26, 2003]

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 “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 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?

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.


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 Cal. Bus. & Prof. Code Ann. §§17204, 17535 (West 1997). This Court has often found that the enforcement of such a 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 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 3. 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 __ (slip op., at 6—7).

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 4. Where is the meaningful difference?

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 8, 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.


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.

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.


Viewed from Cox’s “pragmatic” perspective, “the federal issue has been finally decided in the state courts.” Id., at 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.

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 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 Amendment 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.”


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.


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 1—2. 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 5—6 (Stevens, J., concurring). But why is that possibility relevant? The 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 4 (Stevens, J., concurring).

Conceivably, one might argue that the third condition is not satisfied here despite literal compliance, see supra, at 10—11, 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 2.

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 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. 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 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 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 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. v. Sullivan, 372 U.S. 58, 67—71 (1963).

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” 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 v. Alabama, 310 U.S. 88, 102 (1940).

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.


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 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 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 7—8. 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.


There is no strong prudential argument against deciding the questions presented. Compare ante, at 9 (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.


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.


What follows is a copy of the letter to university presidents and athletic directors at issue in this case, Lodging of Petitioners 190—191: