In the 1990s, Nike became the target of a campaign by labor and antiglobalization activists who charged that its shoes were being manufactured in Third World sweatshops.
Nike fought back aggressively, defending itself with press releases and letters to the editor and to key customers in university athletic departments. It commissioned a report by former U.N. Ambassador Andrew Young, who found Nike was not mistreating its workers.
For its vigorous defense of its good name, Nike was sued by activist Marc Kasky under California state laws intended to prohibit false or misleading advertising. This was a flagrant attempt to muzzle the company. Unable to answer its critics, it would have been helpless while its reputation was assaulted.
But the suit was filed and dismissed by a lower court. An appeals court upheld the dismissal, but the state supreme court said the case should go to trial. The fact that the California courts did not make a "final judgment" gave the U.S. Supreme Court the pretext to duck an important, if complicated, free speech case. It issued a one-sentence dismissal.
The issue: Does the First Amendment protect commercial speech and, if so, how much? To us, the answer seems simple: The First Amendment itself makes no distinction between commercial and noncommercial speech. While this suit remains unresolved, corporations, to the detriment of the public, might be unwilling to speak out on issues — product safety, labor conditions, environmental issues — for fear of being sued.
In dissent, Justice Stephen Breyer, joined by Sandra Day O'Connor, wrote that
"delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on."