v. Kasky: The Argument that Just
Didn’t Do It for Me
Erik S. Jaffe
argument yesterday in Nike v. Kasky was both more and less
interesting than expected.
the plus side, several Justices seemed to be considering either
substantially narrowing or shunting to the side the commercial speech
doctrine, a position strongly supported by the Center for Individual
Freedom in its amicus brief. Justice Scalia, for example,
asked Kasky’s attorney whether the commercial speech doctrine should
be limited to commercial “offers” and should exclude other types
of speech by businesses. That would certainly resolve much (though
not all) of the current confusion in the commercial speech doctrine.
Breyer also seemed to be looking outside of the box, wondering aloud
whether the commercial speech doctrine sensibly applies to speech
that is a mixture of public debate and business promotion. He asked
what would be the correct answer starting from scratch if the commercial
speech doctrine did not apply. It was an excellent question well
Justice Stevens questioned whether the outcome of any of the Court’s
cases ever actually turned on the distinction between commercial
and non-commercial speech, a question that might wishfully be thought
to imply that there is no existing precedent for the commercial
speech doctrine curtailing First Amendment protection rather
than expanding it.
drawing inferences from isolated questions at oral argument might
be little better than reading tea leaves and chicken entrails, the
questions at least raise the possibility that the Court is finally
considering the direct confrontation with and re-evaluation of the
commercial speech doctrine that it has so far avoided.
the minus side, the argument was less than riveting and often downright
was, of course, the expected skepticism towards Kasky’s position,
but very little in the way of a response to that skepticism. All
in all it was as if Kasky’s attorney knew he could not defend the
decision below and, thus, was not even going to try with any seriousness
to do so. Rather, the bulk of his argument was spent trying to
persuade the Court not to decide the case at all.
arguments centered on whether the Court had jurisdiction to hear
the case if Nike had not yet been injured and whether an exception
to the final judgment rule applied if a less-than-comprehensive
decision by the Supreme Court would not terminate the litigation.
Overall, those arguments seemed to show desperation to avoid the
merits rather than any clever technical objection. The fact that
the substance of the arguments about injury and finality were also
stunningly weak did not help matters any.
the merits, while the Court had interesting and difficult questions
for Kasky’s attorney about what to do with “mixed” speech that contributed
to public debate, the answers to those questions were neither interesting
nor helpful to Kasky’s argument. For example, asked whether uncertainty
about the line between commercial and non-commercial speech might
chill protected non-commercial speech, Kasky’s attorney agreed that
it might but argued that such a chill would be fine since such speech
would presumably be false as well. (He obviously missed First Amendment
Day in law school.) One gets the sense that there were no dress-rehearsals
for his argument, and it showed.
side of the argument had a substantially better showing through
Professor Laurence Tribe, who had ready answers for the questions
put to him, though was not exactly pressured by the questioning.
The result was a straightforward and less-than-scintillating argument
that got the job done though never quite wowed. I imagine it is
hard to sparkle without some serious pressure from the bench, so
it seemed like just another day at the office for a Supreme Court
advocate who was never forced to kick it up a notch.
for predictions, that is always a fool’s game, but (being occasionally
foolish) I would guess that Nike will get at least some relief.
Whether that relief will be complete or partial, and whether the
Court will offer a cleaner doctrinal approach to replace the Central
Hudson commercial speech test, is anybody’s guess.
- To read more
about the background of the Nike v. Kasky case, click
- To download
a copy of the amicus brief the Center filed in support
of Nike, click
S. Jaffe is a sole practitioner
in Washington, D.C., concentrating in appellate litigation. He
is a graduate of Columbia Law School and clerked for Justice Clarence
Thomas of the U.S. Supreme Court and Judge Douglas H. Ginsburg of
the U.S. Court of Appeals for the D.C. Circuit. Mr. Jaffe has written
several briefs for the Center for Individual Freedom on First Amendment
issues before the U.S. Supreme Court, including the brief the Center
filed in the Nike v. Kasky case.
Posted April 24, 2003]
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