From the Summer 2003 issue of The News Media & The Law, page 12.
The current makeup of the U.S. Supreme Court has been described repeatedly as one of the most pro-First Amendment courts in a long time. But its recent decision — or nondecision — in the Nike case seems to reveal a certain disconnect with one of the most important issues in free-speech litigation: Speech isn’t free if it constantly has to be defended in court.
Fortunately for the Court, a shot at redemption already has presented itself. The long-running case between Suzuki Motor Corp. and Consumer Reports, although presenting substantially different legal issues than the Nike case, gives the Court a chance to re-establish its bona fides in the realm of First Amendment jurisprudence. Will it accept the challenge, or will this case, too, be sent back for trial unnecessarily?
The Nike case, Nike v. Kasky, was one of those rare cases in which the court — after accepting review, letting the parties brief the case, and hearing arguments — decided that it never should have agreed to hear the case at all, and dismissed it as “improvidently granted.” The problem, as the Court saw it, was that it was hearing an appeal of a case that had not gone to trial, so nothing about the case was “final” yet.
The case was brought by a private individual, Mark Kasky, who ignored years of ubiquitous advertising campaigns and never bought a pair of Nike shoes. That fact eventually would kill the case before the high court: Because he had not been “harmed” by giving up his money for fancy footwear, he had no federal grounds for suing the shoemaker once he decided that it was misrepresenting the facts over its labor practices in letters and press releases to newspaper editors, college athletic directors and others. But a California law allowed him to sue in state court in the name of “the people,” in what is called a “private attorney general” action.
So Kasky went to court over Nike’s position on its labor practices, which he thought were lies to cover up sweatshop practices. His case was thrown out by a trial judge and an appellate court, but the California Supreme Court said it should go to trial. Nike’s speech about its labor practices was “commercial speech,” the court reasoned, and thus less deserving of protection than traditional speech.
And after all the briefing and arguing, the U.S. Supreme Court issued its dismissal in late June. The court officially did not explain its reasoning, but Justice John Paul Stevens, joined by Justice Ruth Bader Ginsberg and partially by Justice David Souter, defended his position. After noting the lack of harm, which negates federal jurisdiction, Stevens went further, saying that “the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . . The novelty and importance of the constitutional questions presented in this case provide good reason for adhering to that rule.”
In other words, it’s such an important case that it shouldn’t be decided. Stevens preferred sending the case back to trial to develop a “full factual record,” after which the Court can study the same constitutional issues.
In taking a pass on the case, the Court ignored an important issue that both justified its jurisdiction over the case and demanded that it resolve the constitutional issues. By letting the California decision stand, the governing law in California is that speech about public affairs has almost no protection when it is made by corporations. (Media organizations, including The Reporters Committee for Freedom of the Press, pointed out that chilled corporate speech means that the news media, and subsequently the general public, will receive less information about a number of public controversies that involve businesses.) And rather than having a critical legal issue settled by an appellate court, the case must now go back for years of litigation that will likely cost millions of dollars.
It is that aspect of the Nike case — the essential but ignored interest in disposing of free-speech challenges before trial — that shows the similarity with Suzuki Motors v. Consumers Union. The two cases have little else in common: The Nike case concerns commercial speech, while Consumer Reports is about product reviews, the type of opinion-based speech that warrants the greatest protection. And the Consumer Reports case always has been in federal court, so there is no question of whether the Supreme Court has jurisdiction. So the Court will again be asked to step in and overturn an appellate decision to send a case back to trial after a trial court had dismissed it.
In other words, Suzuki presents an even better opportunity to set the standard for when the First Amendment demands that a case be dismissed. As described in the articles above, Consumers Union has already spent more than $5 million on its defense, before the case has even gone to trial. And, as Judge Alex Kozinski said in dissenting from the Ninth Circuit’s decision, allowing a case like Suzuki to go to trial with such little evidence of “actual malice” by Consumers Union could spell the end of independent product tests and reviews, even by a media defendant who can afford the astronomical legal bills.
One of the key issues squarely presented by Suzuki is what standard an appellate court should use in determining whether a speech case should be dismissed. The decisions it makes on Suzuki — first whether to accept review, then what standard should govern the dismissal of speech cases — truly will determine the extent of this Court’s legacy as a protector of the First Amendment.
— Gregg Leslie
Gregg Leslie is the legal defense director of The Reporters Committee for Freedom of the Press.