Supreme Court

Center to file brief in Nike's Supreme Court Review

In the release reproduced here, the Center for Individual Freedom announces its plan to support Nike’s efforts before the Supreme Court.


C e n t e r   F o r   I n d i v i d u a l   F r e e d o m



October 15, 2002

Contact: Jeffrey Mazzella


Nike Seeks Supreme Court Review of Free Speech Abomination
Center for Individual Freedom to File Brief

ALEXANDRIA, Va. In a significant first step toward re-establishing sanity in the First Amendment universe, Nike has asked the Supreme Court to review a decision by the California Supreme Court holding that Nike’s statements defending itself against public criticism regarding its labor practices were merely commercial speech entitled to minimal First Amendment protection.

The 4-3 California Supreme Court ruling in the case of Kasky v. Nike effectively eliminated the ability of corporations and business persons to engage in any public debate over matters that related to their businesses by allowing strict liability to be imposed for misstatements made in the course of such debate. Corporate critics, by contrast, would continue to receive full First Amendment protection for their speech.

Nike cited the dissenting California Supreme Court Justices in its petition to the U.S. Supreme Court as saying that while Nike faces liability for any misstatements, its "critics have taken full advantage of their right to ‘uninhibited, robust, and wide-open debate,’" and that "[h]andicapping one side in this important worldwide debate is both ill considered and unconstitutional."

Nike is represented before the Supreme Court by, among others, Constitutional Scholar and Supreme Court advocate Laurence Tribe, former Acting solicitor General Walter Dellinger, and Supreme Court specialist Tom Goldstein.

The Center for Individual Freedom welcomes this latest effort by Nike to resist California’s encroachment of First Amendment freedoms, and plans to support Nike’s efforts before the Supreme Court.

While the Kasky decision is troubling enough even as applied within California, the decision and the underlying state law reach far beyond California’s borders. Many of the allegedly inaccurate statements over which Nike was sued were made in letters, editorials, and comments to reporters in distant parts of the country and only reached Californians through the internet or other means of mass media. But if a company can be sued in California for statements made anywhere in the country, then it will necessarily be silent even in states that seek to promote vigorous public debate for both sides of issues involving business-related issues.

By thus imposing its restrictive view of the First Amendment on statements made throughout the country, the Kasky decision threatens the freedoms of all Americans. Only the United States Supreme Court can adequately rebuff that assault on our constitutional rights.

In furtherance of its mission to promote and defend individual freedoms, the Center plans on joining Nike in battle to undo California’s assault on the First Amendment. The Center has thus hired Supreme Court and First Amendment litigator Erik Jaffe to prepare an amicus brief for the Center in support of Nike’s petition for certiorari and, if the Court grants the petition, an amicus brief in support of Nike on the merits.


To download Nike Inc.’s brief, click here.

For more on the Nike case, read Free Speech in a Commercial World: The Nike Paradox and Court Rules that Nike Can’t "Just Do It." Image Advertising Constitutes Commercial Speech.

[Posted October 11, 2002]