Freedom Line

Justice Breyer also seemed to be... wondering aloud whether the commercial speech doctrine sensibly applies to speech that is a mixture of public debate and business promotion.


Nike v. Kasky: The Argument that Just Didn’t Do It for Me

By Erik S. Jaffe

Oral argument yesterday in Nike v. Kasky was both more and less interesting than expected.

On 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.

Justice 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 worth considering.

Even 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.

While 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.

On the minus side, the argument was less than riveting and often downright pointless.

There 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.

Those 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.

On 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.

Nike’s 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.

As 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 here.

  • To download a copy of the amicus brief the Center filed in support of Nike, click here.

Erik 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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