(The Return of) Ignatz, by Sam Heldman

Tuesday, April 22, 2003

S.Ct. predictions
The last case to be argued this week is Nike v. Kasky. There has been a boatload of press coverage of the case, so you probably know the deal already if you're interested. If you want the briefs, go to the Goldstein Howe site here; they're representing Nike along with some lesser-known cocounsel.

Long story short, California consumers brought suit under California's consumer protection laws, claiming that Nike had made misleading public statements about the treatment of the people who make its shoes in overseas manufacturing plants. The California Supreme Court held that the First Amendment did not shield Nike from such a suit, because the statements at issue constituted "commercial speech." "Commercial speech" gets less First Amendment protection than does speech on important matters of public concern, under the present view; but some people want to abolish or at least dilute that distinction.

If you were interested in my own views, I would tell you that I can't see how Nike can reasonably win this Constitutional issue, not because I think that the "commercial speech" doctrine is so sacrosanct, but because I can't see how the First Amendment could reasonably be construed as giving somebody a right to be less than careful about what he (she or it) says about him(her, it)self. I'm all in favor of breathing room for criticism of public figures, under NYT v. Sullivan, and that means a constitutional right to be less than perfectly careful about what you say about public figures. But how that translates into a right to be sloppy about telling the truth about one's self, I can't see.

But enough about me. What will the Court do? I'm guessing REVERSE in one of two ways: either (less likely, I am betting) that the Court will say that the suit is completely foreclosed by the First Amendment, or that the Court will vacate the Cal. S.Ct.'s decision, say something about how this was not classic "commercial speech," make some new standards as to how such a case can perhaps proceed without tramping on the Constitution, and remand for further proceedings. In other words, I'm guessing that if they do anything other than say "righto, it's commercial speech just as the Cal. S.Ct. said, so full steam ahead with your lawsuit," they'll call themselves "vacating" or "reversing" rather than "affirming". Thankfully, only 6 more of these predictions to go.

posted by sam 11:45 AM 0 comments


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