[ Stevens ]
[ Kennedy ]
[ Breyer ]
NIKE, INC., et al., PETITIONERS v. MARC KASKY
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
[June 26, 2003]
Justice Breyer, with whom Justice OConnor joins, dissenting.
During the 1990s, 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 78, 96118, 127162, 232235, 272273. This case focuses upon whether, and to what extent, the First Amendment protects certain efforts by Nike to respondefforts 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 Kaskys 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 Nikes labor practices. App. to Pet. for Cert. 78a. The Court of Appeal added that it saw no merit to [Kaskys] 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 Courts 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. Commn 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 Nikes statements fell outside the category of commercial speech, the First Amendment protected them and the ultimate issue is resolved in Nikes favor. Appellants Brief on the Merits in No. S087859 (Cal.), p. 1; accord, Appellants Reply Brief in No. S087859 (Cal.), pp. 12.
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 Nikes statements insofar as they were false or misleadingregardless 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 Kaskys lawsuita 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 Courts ultimate holding is legally correct. Does the First Amendment permit Kaskys 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 IIIs case or controversy requirement does not bar us from hearing this case. Article III requires a litigant to have standingi.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 Kaskys complaint specifically states that Nikes statements did not harm Kasky personally. Lodging of Petitioners 45 (¶8). But Nike, the state-court defendantnot Kasky, the plaintiffhas brought the case to this Court. And Nike has standing to complain here of Kaskys 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 Nikes 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 completeindeed, 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
Here, of course, an action to enforce Californias lawslaws that discourage certain kinds of speechamounts to more than just a genuine, future threat. It is a present realityone that discourages Nike from engaging in speech. It thereby creates injury in fact. Supra, at 3. Further, that injury is directly traceable to Kaskys pursuit of this lawsuit. And this Courts 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 Kaskys 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 partythe party who brought the suit in state court and obtained that judgmentwould have lacked standing to bring a case in federal court. See also Virginia v. Hicks, ante, at __ (slip op., at 67).
In ASARCO, state taxpayers (who ordinarily lack federal standing) sued a state agency in state court, seeking a judgment declaring that the States 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 States 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  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 623624 (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 courts 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
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 611612 (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 issuedeciding that Nikes 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 611612. 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 statutes phrase final judgment to refer, in certain circumstances, to a state courts 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 Coxs 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 482483.
Each of these four conditions is satisfied in this case.
Viewed from Coxs 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 Nikes communicationsthose upon which Kasky says he based his legal claims. Brief for Respondent 5. These include (1) a letter from Nikes Director of Sports Marketing to university presidents and athletic directors presenting facts about Nikes labor practices; (2) a 30-page illustrated pamphlet about those practices; (3) a press release (posted on Nikes web site) commenting on those practices; (4) a posting on Nikes web site about its code of conduct; (5) a document on Nikes letterhead sharing its perspective on the labor controversy; (6) a press release responding to [s]weatshop [a]llegations; (7) a letter from Nikes Director of Labor Practices to the Chief Executive Officer of YWCA of America, discussing criticisms of its labor practices; (8) a letter from Nikes European public relations manager to a representative of International Restructuring Education Network Europe, discussing Nikes practices; and (9) a letter to the editor of The New York Times taking issue with a columnists criticisms of Nikes practices. Ibid.; see also Lodging of Petitioners 121125, 182191, 198230, 270, 285, 322324. 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 issuewhether 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 Courts decision to stand, in all likelihood this litigation will now simply seek to determine whether Nikes statements were false or misleading, and perhaps whether Nike was negligent in making those statementsmatters 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 victims 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), revd, 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 issuesconcerning 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 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. Californias 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., Nikemight 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 lawa 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 482483. 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 12. It would forbid Kasky to proceed insofar as Kaskys 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 56 (Stevens, J., concurring). But why is that possibility relevant? The third condition specifies that reversalnot some other dispositionwill 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 groundperhaps, for example, precluding liability (for publication of a rape victims 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. 73938, p. 68, n. 127 (arguing that
Conceivably, one might argue that the third condition is not satisfied here despite literal compliance, see supra, at 1011, 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 Courts 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
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 protectiona letter written by Nike to university presidents and athletic directorshas 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 speakers own business operations (labor conditions). Ibid. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 6667 (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 letters 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 Nikes 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), 232236 (fact sheet with Boycott Nike heading). See generally Roth v. United States, 354 U.S. 476, 484 (1957) (The First Amendments 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, 473474 (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 speechsay, the words dolphin-safe tunathat commonly appears in more traditional advertising or labeling contexts. And it is unlike instances of speech where a communications contribution to public debate is peripheral, not central, cf. id., at 562563, 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 contextssay, securities regulationwhere a different balance of concerns calls for different applications of First Amendment principles. Cf. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456457 (1978).
These three sets of circumstances taken togethercircumstances 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 Californias system of false advertising regulationincluding its provision for private causes of actionfurthers 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 speechat 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 Californias 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, 134135 (1992); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 6771 (1963).
That threat means a commercial speaker must take particular careconsiderably more care than the speakers noncommercial opponentswhen speaking on public matters. A large organizations 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 qualificationeven 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 speakers efforts to engage in public debateparticularly where a false advertising law, like Californias 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 785786; 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 generalat 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, Californias delegation of the governments 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, 616620 (1969) (upholding prohibition of employer comments on unionism containing threats or promises), with Thomas v. Collins, 323 U.S. 516, 531532 (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, Californias 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 482483, 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 courts 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, 971972, 6 Cal. Rptr. 2d 193, 197198 (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 amiciincluding some who do not believe that Nike has fully and accurately explained its labor practicesargue that Californias 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 23; Brief for Chamber of Commerce of the United States as Amicus Curiae 1012; Brief for ABC Inc. et al. as Amici Curiae 613; Brief for Pfizer Inc. as Amicus Curiae 1014.
In sum, all four conditions are satisfied here. See supra, at 78. Hence, the California Supreme Courts 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 generals 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, 534535 (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 amicusopposed to Nike on the merits of its labor practice claims but supporting Nike on its free speech claimechoes 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 Courts
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 190191: