Nike, Inc. v. Kasky
The Supreme Court dismissed its own review of Nike's case, deciding not to rule on whether the company's public statements defending its labor practices were legally protected speech or could be challenged as false advertising.
Because the Court sent the case back without deciding the First Amendment question, the underlying lawsuit against Nike continues in California courts, leaving open for now how far companies can go in defending themselves publicly without facing liability for factual claims.
How it got here: A California trial court dismissed Kasky's suit on First Amendment grounds; the Court of Appeal affirmed; the California Supreme Court reversed, and Nike sought Supreme Court review before trial.
The Case in Depth
What happened
Facing accusations that it mistreated and underpaid overseas factory workers, Nike issued press releases, letters to newspapers, and letters to universities defending its labor practices. A California resident, Marc Kasky, sued Nike under state false-advertising and unfair-competition laws, claiming Nike's public statements contained false claims about labor conditions, even though he alleged no personal injury from the statements.
The question before the Court
Could Nike be sued under California's false-advertising law for statements it made defending its overseas labor practices, or did the First Amendment bar the lawsuit outright?
Why it matters
Companies that publicly respond to criticism about their business practices remain uncertain whether such statements count as heavily-protected speech or as commercial claims that can be challenged for being false or misleading. Nike itself said the ongoing threat of liability led it to scale back public communications on social issues, and other businesses face similar uncertainty until courts resolve the underlying dispute.
What changes now
Because the writ was dismissed as improvidently granted, the Supreme Court decided nothing about whether Nike's speech was commercial or protected by the First Amendment. The case returns to California state court, where Kasky's lawsuit against Nike proceeds under state law, and the underlying constitutional questions about corporate speech remain unresolved nationally until another case squarely presents them.
What this does not decide
The Court did not decide whether Nike's statements were commercial or noncommercial speech, whether the California law violates the First Amendment, or whether private citizens without personal injury can sue companies for public statements. The dismissal leaves all of these substantive First Amendment questions completely unresolved for future cases.
Concurrences and dissents
Concurrence — Justice Stevens
“there is no constitutional value in false statements of fact.”Stevens noting the strong interest in protecting the public from factual misstatements.
Justice Stevens, joined by Justice Ginsburg (and by Justice Souter as to Part III), gave three independent reasons for dismissing: the California Supreme Court's ruling was not a final judgment reviewable under the relevant statute; neither Nike nor Kasky had Article III standing to invoke federal jurisdiction; and prudential concerns counseled against deciding novel, difficult constitutional questions before a full factual record was developed at trial.
Dissent — Justice Kennedy
Justice Kennedy dissented in a single sentence, stating he would not have dismissed the writ as improvidently granted, without elaborating further reasoning.
Dissent — Justice Breyer
“I do not agree with what you say, but I will fight to the end so that you may say it.”Breyer invoking a Voltaire-style principle to argue the free-speech question should have been decided.
Justice Breyer, joined by Justice O'Connor, argued the Court had both jurisdiction and standing to decide the case now, that delay would itself chill speech, and that on the merits heightened scrutiny should apply because Nike's statements blended commercial and public-debate speech, making California's private-attorney-general enforcement scheme unconstitutional as applied.
How the Court got there
The legal reasoning, step by step
- The Court's decision not to reach the merits turned on threshold jurisdictional issues rather than a legal test applied to the facts, so no substantive First Amendment reasoning chain was adopted by a majority.
- A per curiam order dismissed the writ of certiorari as improvidently granted, meaning the Court decided the case had been unwisely taken up for review and would not decide the questions presented after all.
- Separate opinions disagreed sharply about whether the Court had jurisdiction at all: some justices argued the state court's ruling was not yet a final judgment under the statute governing Supreme Court review of state cases, and that neither side had the concrete personal injury needed to establish standing to sue in federal court.
- Other justices argued that a recognized exception for finality applied, that Nike's defense properly created standing because the lawsuit threatened to chill its speech, and that the constitutional question was ripe and urgent enough to decide immediately.
Doctrinal impact
Cases affected by this decision
Distinguishes ASARCO Inc. v. Kadish (490 U.S. 605)
Stevens said ASARCO's standing exception for a final declaratory judgment does not cover this merely interlocutory ruling allowing a trial to proceed.