NIKE, INC., et al. v. KASKY

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654 OCTOBER TERM, 2002
Syllabus
NIKE, INC., et al. v. KASKY
certiorari to the supreme court of california
No. 02–575. Argued April 23, 2003—Decided June 26, 2003
Certiorari dismissed. Reported below: 27 Cal. 4th 939, 45 P. 3d 243.
Laurence H. Tribe argued the cause for petitioners. With
him on the briefs were Thomas C. Goldstein, Amy Howe,
Walter Dellinger, David J. Brown, and James N. Penrod.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General McCallum, Deputy
Solicitor General Clement, Jeffrey P. Minear, and Jeffrey
A. Lamken.
Paul R. Hoeber argued the cause for respondent. With
him on the brief were Alan M. Caplan, Roderick P. Bush-
nell, Patrick J. Coughlin, Randi Dawn Bandman, Albert H.
Meyerhoff, and Sylvia Sum.*
*Briefs of amici curiae urging reversal were filed for ABC Inc. et al.
by Bruce E. H. Johnson, P. Cameron DeVore, Kelli L. Sager, Henry
S. Hoberman, Theresa A. Chmara, Richard M. Schmidt, Jr., David A.
Schulz, R. Bruce Rich, Jonathan Bloom, Susanna M. Lowy, Anthony
M. Bongiorno, Harold W. Fuson, Jr., Jonathan R. Donnellan, Stuart D.
Karle, Barbara W. Wall, Jack N. Goodman, James M. Lichtman, Neal A.
Jackson, George Freeman, Rene´ P. Milam, Henry Z. Horbaczewski, Lucy
A. Dalglish, Jane E. Kirtley, Bruce W. Sanford, Robin Bierstedt, Karlene
W. Goller, and Eric N. Lieberman; for the American Civil Liberties Union
et al. by Mark J. Lopez, Steven R. Shapiro, and Ann Brick; for the Ameri-
can Federation of Labor and Congress of Industrial Organizations by Jon-
athan P. Hiatt, James B. Coppess, and Laurence Gold; for the Arthur W.
Page Society et al. by Bruce P. Keller and Michael R. Potenza; for the
Association of National Advertising, Inc., et al. by Howard J. Rubin and
Cory Greenberg; for the Business Roundtable by Carter G. Phillips, Alan
Charles Raul, and Joseph R. Guerra; for the Center for Individual Free-
dom by Erik S. Jaffe and Renee L. Giachino; for the Center for the Ad-
vancement of Capitalism by Thomas A. Bowden; for the Chamber of Com-
merce of the United States of America by Kenneth W. Starr, Richard A.

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655 Cite as: 539 U. S. 654 (2003)
Per Curiam
Per Curiam.
The writ of certiorari is dismissed as improvidently
granted.
Cordray, and Robin S. Conrad; for the Civil Justice Association of Califor-
nia by Fred J. Hiestand; for Defenders of Property Rights et al. by Nancie
G. Marzulla and Roger J. Marzulla; for ExxonMobil et al. by David H.
Remes; for the National Association of Manufacturers by Andrew L. Frey,
Andrew H. Schapiro, Kenneth S. Geller, David M. Gossett, Martin H.
Redish, Jan S. Amundson, and Quentin Riegel; for the Pacific Legal
Foundation et al. by Deborah J. La Fetra; for Pfizer Inc. by Bert W. Rein,
Jeffrey B. Kindler, and Steven C. Kany; for the Product Liability Advisory
Council, Inc., by Steven G. Brody; for SRiMedia et al. by Thomas H.
Clarke, Jr.; for the Thomas Jefferson Center for the Protection of Free
Expression et al. by Robert M. O’Neil and J. Joshua Wheeler; and for
the Washington Legal Foundation et al. by Daniel J. Popeo and Richard
A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of
California et al. by Bill Lockyer, Attorney General of California, Manuel
Medeiros, State Solicitor General, Richard M. Frank, Chief Assistant At-
torney General, Herschel T. Elkins, Senior Assistant Attorney General,
and Ronald A. Reiter, Supervising Deputy Attorney General, and by the
Attorneys General for their respective jurisdictions as follows: Gregg D.
Renkes of Alaska, Terry Goddard of Arizona, Richard Blumenthal of Con-
necticut, Charles J. Crist, Jr., of Florida, Lisa Madigan of Illinois, Richard
Ieyoub of Louisiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of
Maryland, Mike Hatch of Minnesota, Patricia A. Madrid of New Mexico,
Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Jim Petro
of Ohio, W. A. Drew Edmondson of Oklahoma, Anabelle Rodrı´guez of
Puerto Rico, Lawrence E. Long of South Dakota, William H. Sorrell of
Vermont, and Darrell V. McGraw, Jr., of West Virginia; for the Campaign
Legal Center by Trevor Potter; for the Consumer Attorneys of California
by Sharon J. Arkin; for Domini Social Investments LLC et al. by James
E. Pfander; for Global Exchange by William Aceves; for the National As-
sociation of Consumer Advocates by Robert M. Bramson; for Public Citi-
zen by Alan B. Morrison, Allison M. Zieve, Scott L. Nelson, and David
C. Vladeck; for ReclaimDemocracy.org by Brenda Wright, Lisa J. Danetz,
John C. Bonifaz, and Bonita Tenneriello; for the Sierra Club et al. by
Patrick Gallagher and Thomas McGarity; and for Representative Dennis
J. Kucinich et al. by Erwin Chemerinsky and Catherine Fisk.
William Perry Pendley and Joseph F. Becker filed a brief for the Moun-
tain States Legal Foundation as amicus curiae.

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656 NIKE, INC. v. KASKY
Stevens, J., concurring
Justice Stevens, with whom Justice Ginsburg joins,
and with whom Justice Souter joins as to Part III,
concurring.
Beginning in 1996, Nike was besieged with a series of alle-
gations that it was mistreating and underpaying workers at
foreign facilities. See App. to Pet. for Cert. 3a. Nike re-
sponded to these charges in numerous ways, such as by send-
ing out press releases, writing letters to the editors of vari-
ous newspapers around the country, and mailing letters to
university presidents and athletic directors. See id., at 3a–
4a. In addition, in 1997, Nike commissioned a report by for-
mer Ambassador to the United Nations Andrew Young on
the labor conditions at Nike production facilities. See id.,
at 67a. After visiting 12 factories, “Young issued a report
that commented favorably on working conditions in the
factories and found no evidence of widespread abuse or mis-
treatment of workers.” Ibid.
In April 1998, respondent Marc Kasky, a California resi-
dent, sued Nike for unfair and deceptive practices under Cal-
ifornia’s Unfair Competition Law, Cal. Bus. & Prof. Code
Ann. § 17200 et seq. (West 1997), and False Advertising Law,
§ 17500 et seq. Respondent asserted that “in order to main-
tain and/or increase its sales,” Nike made a number of “false
statements and/or material omissions of fact” concerning the
working conditions under which Nike products are manufac-
tured. Lodging of Petitioners 2 (¶ 1). Respondent alleged
“no harm or damages whatsoever regarding himself individ-
ually,” id., at 4–5 (¶ 8), but rather brought the suit “on behalf
of the General Public of the State of California and on infor-
mation and belief,” id., at 3 (¶ 3).
Nike filed a demurrer to the complaint, contending that
respondent’s suit was absolutely barred by the First Amend-
ment. The trial court sustained the demurrer without leave
to amend and entered a judgment of dismissal. App. to Pet.
for Cert. 80a–81a. Respondent appealed, and the California
Court of Appeal affirmed, holding that Nike’s statements

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Stevens, J., concurring
“form[ed] part of a public dialogue on a matter of public con-
cern within the core area of expression protected by the
First Amendment.” Id., at 79a. The California Court of
Appeal also rejected respondent’s argument that it was error
for the trial court to deny him leave to amend, reasoning
that there was “no reasonable possibility” that the complaint
could be amended to allege facts that would justify any re-
strictions on what was—in the court’s view—Nike’s “non-
commercial speech.” Ibid.
On appeal, the California Supreme Court reversed and
remanded for further proceedings. The court held that
“[b]ecause the messages in question were directed by a com-
mercial speaker to a commercial audience, and because they
made representations of fact about the speaker’s own busi-
ness operations for the purpose of promoting sales of its
products, . . . [the] messages are commercial speech.” 27
Cal. 4th 939, 946, 45 P. 3d 243, 247 (2002). However, the
court emphasized that the suit “is still at a preliminary stage,
and that whether any false representations were made is a
disputed issue that has yet to be resolved.” Ibid.
We granted certiorari to decide two questions: (1)
whether a corporation participating in a public debate may
“be subjected to liability for factual inaccuracies on the the-
ory that its statements are ‘commercial speech’ because they
might affect consumers’ opinions about the business as a
good corporate citizen and thereby affect their purchasing
decisions”; and (2) even assuming the California Supreme
Court properly characterized such statements as commer-
cial speech, whether the “First Amendment, as applied to
the states through the Fourteenth Amendment, permit[s]
subjecting speakers to the legal regime approved by that
court in the decision below.” Pet. for Cert. i. Today, how-
ever, the Court dismisses the writ of certiorari as improvi-
dently granted.
In my judgment, the Court’s decision to dismiss the writ
of certiorari is supported by three independently sufficient

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658 NIKE, INC. v. KASKY
Stevens, J., concurring
reasons: (1) the judgment entered by the California Su-
preme Court was not final within the meaning of 28 U. S. C.
§ 1257; (2) neither party has standing to invoke the jurisdic-
tion of a federal court; and (3) the reasons for avoiding the
premature adjudication of novel constitutional questions
apply with special force to this case.
I
The first jurisdictional problem in this case revolves
around the fact that the California Supreme Court never en-
tered a final judgment. Congress has granted this Court
appellate jurisdiction with respect to state litigation only
after the highest state court in which judgment could be had
has rendered a final judgment or decree. See ibid. A lit-
eral interpretation of the statute would preclude our review
whenever further proceedings remain to be determined in a
state court, “no matter how dissociated from the only federal
issue” in the case. Radio Station WOW, Inc. v. Johnson,
326 U. S. 120, 124 (1945). We have, however, abjured such a
“mechanical” construction of the statute, and accepted juris-
diction in certain exceptional “situations in which the highest
court of a State has finally determined the federal issue pres-
ent in a particular case, but in which there are further pro-
ceedings in the lower state courts to come.” Cox Broadcast-
ing Corp. v. Cohn, 420 U. S. 469, 477 (1975).1
Nike argues that this case fits within the fourth category
of such cases identified in Cox, which covers those cases in
which “the federal issue has been finally decided in the state
courts with further proceedings pending in which the party
seeking review” might prevail on nonfederal grounds, “re-
versal of the state court on the federal issue would be preclu-
sive of any further litigation on the relevant cause of action,”
1 Notably, we recognized in Cox that in most, if not all, of these excep-
tional situations, the “additional proceedings anticipated in the lower state
courts . . . would not require the decision of other federal questions that
might also require review by the Court at a later date.” 420 U. S., at 477.

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Stevens, J., concurring
and “refusal immediately to review the state-court decision
might seriously erode federal policy.” Id., at 482–483. In
each of the three cases that the Court placed in the fourth
category in Cox, the federal issue had not only been finally
decided by the state court, but also would have been finally
resolved by this Court whether the Court agreed or dis-
agreed with the state court’s disposition of the issue. Thus,
in Construction Laborers v. Curry, 371 U. S. 542 (1963), the
federal issue was whether the National Labor Relations
Board had exclusive jurisdiction over the controversy; in
Mercantile Nat. Bank at Dallas v. Langdeau, 371 U. S. 555
(1963), the federal issue was whether a special federal venue
statute applied to immunize the defendants in a state-court
action; and in Miami Herald Publishing Co. v. Tornillo, 418
U. S. 241 (1974), the federal issue was whether a Florida stat-
ute requiring a newspaper to carry a candidate’s reply to an
editorial was constitutional. In Cox itself, the federal ques-
tion was whether the State could prohibit the news media
from publishing the name of a rape victim. In none of those
cases would the resolution of the federal issue have been
affected by further proceedings.
In Nike’s view, this case fits within the fourth Cox cate-
gory because if this Court holds that Nike’s speech was non-
commercial, then “reversal of the state court on the federal
issue would be preclusive of any further litigation on the
relevant cause of action.” 420 U. S., at 482–483; see also
Reply Brief for Petitioners 4; Reply to Brief in Opposition
4–5. Notably, Nike’s argument assumes that all of the
speech at issue in this case is either commercial or noncom-
mercial and that the speech therefore can be neatly classified
as either absolutely privileged or not.
Theoretically, Nike is correct that we could hold that all
of Nike’s allegedly false statements are absolutely privileged
even if made with the sort of “malice” defined in New York
Times Co. v. Sullivan, 376 U. S. 254 (1964), thereby preclud-
ing any further proceedings or amendments that might over-

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660 NIKE, INC. v. KASKY
Stevens, J., concurring
come Nike’s First Amendment defense. However, given the
interlocutory posture of the case before us today, the Court
could also take a number of other paths that would neither
preclude further proceedings in the state courts, nor finally
resolve the First Amendment questions in this case. For
example, if we were to affirm, Nike would almost certainly
continue to maintain that some, if not all, of its challenged
statements were protected by the First Amendment and
that the First Amendment constrains the remedy that may
be imposed. Or, if we were to reverse, we might hold that
the speech at issue in this case is subject to suit only if made
with actual malice, thereby inviting respondent to amend his
complaint to allege such malice. See Tr. of Oral Arg. 42–43.
Or we might conclude that some of Nike’s speech is commer-
cial and some is noncommercial, thereby requiring further
proceedings in the state courts over the legal standards that
govern the commercial speech, including whether actual mal-
ice must be proved.
In short, because an opinion on the merits in this case
could take any one of a number of different paths, it is not
clear whether reversal of the California Supreme Court
would “be preclusive of any further litigation on the relevant
cause of action [in] the state proceedings still to come.”
Cox, 420 U. S., at 482–483. Nor is it clear that reaching the
merits of Nike’s claims now would serve the goal of judicial
efficiency. For, even if we were to decide the First Amend-
ment issues presented to us today, more First Amendment
issues might well remain in this case, making piecemeal re-
view of the Federal First Amendment issues likely. See
Flynt v. Ohio, 451 U. S. 619, 621 (1981) (per curiam) (noting
that in most, if not all, of the cases falling within the four
Cox exceptions, there was “no probability of piecemeal re-
view with respect to federal issues”). Accordingly, in my
view, the judgment of the California Supreme Court does
not fall within the fourth Cox exception and cannot be re-
garded as final.

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Stevens, J., concurring
II
The second reason why, in my view, this Court lacks juris-
diction to hear Nike’s claims is that neither party has stand-
ing to invoke the jurisdiction of the federal courts. See
Whitmore v. Arkansas, 495 U. S. 149, 154–155 (1990) (“Arti-
cle III, of course, gives the federal courts jurisdiction over
only ‘cases and controversies,’ and the doctrine of standing
serves to identify those disputes which are appropriately re-
solved through the judicial process”). Without alleging that
he has any personal stake in the outcome of this case, re-
spondent is proceeding as a private attorney general seeking
to enforce two California statutes on behalf of the general
public of the State of California. He has not asserted any
federal claim; even if he had attempted to do so, he could not
invoke the jurisdiction of a federal court because he failed to
allege any injury to himself that is “distinct and palpable.”
Warth v. Seldin, 422 U. S. 490, 501 (1975). Thus, respondent
does not have Article III standing. For that reason, were
the federal rules of justiciability to apply in state courts, this
suit would have been “dismissed at the outset.” ASARCO
Inc. v. Kadish, 490 U. S. 605, 617 (1989).2
Even though respondent would not have had standing to
commence suit in federal court based on the allegations in
the complaint, Nike—relying on ASARCO—contends that it
has standing to bring the case to this Court. See Reply
Brief for Petitioners 5. In ASARCO, a group of taxpayers
brought a suit in state court seeking a declaration that the
State’s law on mineral leases on state lands was invalid.
After the Arizona Supreme Court “granted plaintiffs a de-
claratory judgment that the state law governing mineral
2 Because the constraints of Article III do not apply in state courts, see
ASARCO, 490 U. S., at 617, the California courts are free to adjudicate
this case.

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662 NIKE, INC. v. KASKY
Stevens, J., concurring
leases is invalid,” 490 U. S., at 611,3 the defendants sought to
invoke the jurisdiction of this Court. In holding that the
defendants had standing to invoke the jurisdiction of the fed-
eral courts, we noted that the state proceedings had “re-
sulted in a final judgment altering tangible legal rights,” id.,
at 619, and we adopted the following rationale:
“When a state court has issued a judgment in a case
where plaintiffs in the original action had no standing
to sue under the principles governing the federal courts,
we may exercise our jurisdiction on certiorari if the
judgment of the state court causes direct, specific, and
concrete injury to the parties who petition for our re-
view, where the requisites of a case or controversy are
also met.” Id., at 623–624.
The rationale supporting our jurisdictional holding in
ASARCO, however, does not extend to this quite different
case. Unlike ASARCO, in which the state-court proceed-
ings ended in a declaratory judgment invalidating a state
law, no “final judgment altering tangible legal rights” has
been entered in the instant case. Id., at 619. Rather, the
California Supreme Court merely held that respondent’s
complaint was sufficient to survive Nike’s demurrer and to
allow the case to go forward. To apply ASARCO to this
case would effect a drastic expansion of ASARCO’s reason-
ing, extending it to cover an interlocutory ruling that merely
allows a trial to proceed.4 Because I do not believe such a
3 The Arizona Supreme Court also remanded the case for the trial court
to determine what further relief might be appropriate. See id., at 611.
Thus, while leaving open the question of remedy on remand, the state-
court judgment in ASARCO finally decided the federal issue. See id., at
612 (holding that the federal issues had been adjudicated by the state
court and that the remaining issues would not give rise to any further
federal question).
4 Justice Breyer would extend ASARCO—which provides an ex-
ception to our normal standing requirement—to encompass not merely
a defendant’s challenge to an adverse state-court judgment but also a

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Stevens, J., concurring
significant expansion of ASARCO is warranted, my view is
that Nike lacks the requisite Article III standing to invoke
this Court’s jurisdiction.
III
The third reason why I believe this Court has appropri-
ately decided to dismiss the writ as improvidently granted
centers around the importance of the difficult First Amend-
ment questions raised in this case. As Justice Brandeis
famously observed, the Court has developed, “for its own
governance in the cases confessedly within its jurisdiction,
a series of rules under which it has avoided passing upon
a large part of all the constitutional questions pressed upon
it for decision.” Ashwander v. TVA, 297 U. S. 288, 346
(1936) (concurring opinion). The second of those rules is
that the Court will not anticipate a question of constitutional
law in advance of the necessity of deciding it. Id., at 346–
347. The novelty and importance of the constitutional ques-
tions presented in this case provide good reason for adhering
to that rule.
This case presents novel First Amendment questions be-
cause the speech at issue represents a blending of commer-
cial speech, noncommercial speech and debate on an issue of
public importance.5 See post, at 676–678. On the one hand,
defendant’s motion to dismiss a state-court complaint alleging that semi-
commercial speech was false and misleading. See post, at 668–670 (dis-
senting opinion). Regardless of whether the “speech-chilling injury” as-
sociated with the defense of such a case may or may not outweigh the
benefit of having a public forum in which the defendant may establish the
truth of the contested statements, such an unprecedented expansion would
surely change the character of our standing doctrine, greatly extending
ASARCO’s reach.
5 Further complicating the novel First Amendment issues in this case is
the fact that in this Court Nike seeks to challenge the constitutionality of
the private attorney general provisions of California’s Unfair Competition
Law and False Advertising Law. It apparently did not raise this specific
challenge below. Whether the scope of protection afforded to Nike’s
speech should differ depending on whether the speech is challenged in a

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664 NIKE, INC. v. KASKY
Stevens, J., concurring
if the allegations of the complaint are true, direct communi-
cations with customers and potential customers that were
intended to generate sales—and possibly to maintain or en-
hance the market value of Nike’s stock—contained signifi-
cant factual misstatements. The regulatory interest in pro-
tecting market participants from being misled by such
misstatements is of the highest order. That is why we have
broadly (perhaps overbroadly) stated that “there is no con-
stitutional value in false statements of fact.” Gertz v. Rob-
ert Welch, Inc., 418 U. S. 323, 340 (1974). On the other hand,
the communications were part of an ongoing discussion and
debate about important public issues that was concerned not
only with Nike’s labor practices, but with similar practices
used by other multinational corporations. See Brief for
American Federation of Labor and Congress of Industrial
Organizations as Amicus Curiae 2. Knowledgeable persons
should be free to participate in such debate without fear of
unfair reprisal. The interest in protecting such participants
from the chilling effect of the prospect of expensive litigation
is therefore also a matter of great importance. See, e. g.,
Brief for ExxonMobil et al. as Amici Curiae 2; Brief for
Pfizer Inc. as Amicus Curiae 11–12. That is why we have
provided such broad protection for misstatements about pub-
lic figures that are not animated by malice. See New York
Times Co. v. Sullivan, 376 U. S. 254 (1964).
Whether similar protection should extend to cover corpo-
rate misstatements made about the corporation itself, or
whether we should presume that such a corporate speaker
knows where the truth lies, are questions that may have to
be decided in this litigation. The correct answer to such
questions, however, is more likely to result from the study
of a full factual record than from a review of mere unproven
allegations in a pleading. Indeed, the development of such
public or a private enforcement action, see post, at 678, is a difficult and
important question that I believe would benefit from further develop-
ment below.

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Breyer, J., dissenting
a record may actually contribute in a positive way to the
public debate. In all events, I am firmly convinced that the
Court has wisely decided not to address the constitutional
questions presented by the certiorari petition at this stage
of the litigation.
Accordingly, I concur in the decision to dismiss the writ as
improvidently granted.
Justice Kennedy, dissenting.
I dissent from the order dismissing the writ of certiorari
as improvidently granted.
Justice Breyer, with whom Justice O’Connor joins,
dissenting.
During the 1990’s, human rights and labor groups, newspa-
per editorial writers, and others severely criticized the Nike
corporation for its alleged involvement in disreputable labor
practices abroad. See Lodging of Petitioners 7–8, 96–118,
127–162, 232–235, 272–273. This case focuses upon whether,
and to what extent, the First Amendment protects certain
efforts by Nike to respond—efforts that took the form of
written communications in which Nike explained or denied
many of the charges made.
The case arises under provisions of California law that au-
thorize a private individual, acting as a “private attorney
general,” effectively to prosecute a business for unfair com-
petition or false advertising. Cal. Bus. & Prof. Code Ann.
§§ 17200, 17204, 17500, 17535 (West 1997). The respondent,
Marc Kasky, has claimed that Nike made false or misleading
commercial statements. And he bases this claim upon state-
ments that Nike made in nine specific documents, including
press releases and letters to the editor of a newspaper, to
institutional customers, and to representatives of nongovern-
mental organizations. Brief for Respondent 5.
The California Court of Appeal affirmed dismissal of
Kasky’s complaint without leave to amend on the ground that

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666 NIKE, INC. v. KASKY
Breyer, J., dissenting
“the record discloses noncommercial speech, addressed to a
topic of public interest and responding to public criticism of
Nike’s labor practices.” App. to Pet. for Cert. 78a. The
Court of Appeal added that it saw “no merit to [Kasky’s]
scattershot argument that he might still be able to state a
cause of action on some theory allowing content-related
abridgement of noncommercial speech.” Id., at 79a.
Kasky appealed to the California Supreme Court. He fo-
cused on the commercial nature of the communications at
issue, while pointing to language in this Court’s cases stating
that the First Amendment, while offering protection to
truthful commercial speech, does not protect false or mis-
leading commercial speech, see Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 563
(1980). Kasky did not challenge the lower courts’ denial of
leave to amend his complaint. He also conceded that, if
Nike’s statements fell outside the category of “commercial
speech,” the First Amendment protected them and “the ulti-
mate issue is resolved in Nike’s favor.” Appellant’s Brief on
the Merits in No. S087859 (Cal.), p. 1; accord, Appellant’s
Reply Brief in No. S087859 (Cal.), pp. 1–2.
The California Supreme Court held that the speech at
issue falls within the category of “commercial speech.”
Consequently, the California Supreme Court concluded, the
First Amendment does not protect Nike’s statements insofar
as they were false or misleading—regardless of whatever
role they played in a public debate. 27 Cal. 4th 939, 946,
969, 45 P. 3d 243, 247, 262 (2002). Hence, according to the
California Supreme Court, the First Amendment does not
bar Kasky’s lawsuit—a lawsuit that alleges false advertising
and related unfair competition (which, for ease of exposition,
I shall henceforth use the words “false advertising” to de-
scribe). The basic issue presented here is whether the Cali-
fornia Supreme Court’s ultimate holding is legally correct.
Does the First Amendment permit Kasky’s false advertising
“prosecution” to go forward?

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Breyer, J., dissenting
After receiving 34 briefs on the merits (including 31 ami-
cus briefs) and hearing oral argument, the Court dismisses
the writ of certiorari, thereby refusing to decide the ques-
tions presented, at least for now. In my view, however, the
questions presented directly concern the freedom of Ameri-
cans to speak about public matters in public debate, no juris-
dictional rule prevents us from deciding those questions now,
and delay itself may inhibit the exercise of constitutionally
protected rights of free speech without making the issue sig-
nificantly easier to decide later on. Under similar circum-
stances, the Court has found that failure to review an inter-
locutory order entails “an inexcusable delay of the benefits
[of appeal] Congress intended to grant.” Mills v. Alabama,
384 U. S. 214, 217 (1966). I believe delay would be similarly
wrong here. I would decide the questions presented, as we
initially intended.
I
Article III’s “case or controversy” requirement does not
bar us from hearing this case. Article III requires a litigant
to have “standing”—i. e., to show that he has suffered
“injury in fact,” that the injury is “fairly traceable” to ac-
tions of the opposing party, and that a favorable decision will
likely redress the harm. Bennett v. Spear, 520 U. S. 154,
162 (1997) (internal quotation marks omitted). Kasky, the
state-court plaintiff in this case, might indeed have had trou-
ble meeting those requirements, for Kasky’s complaint spe-
cifically states that Nike’s statements did not harm Kasky
personally. Lodging of Petitioners 4–5 (¶ 8). But Nike, the
state-court defendant—not Kasky, the plaintiff—has brought
the case to this Court. And Nike has standing to complain
here of Kasky’s actions.
These actions threaten Nike with “injury in fact.” As a
“private attorney general,” Kasky is in effect enforcing a
state law that threatens to discourage Nike’s speech. See
Cal. Bus. & Prof. Code Ann. §§ 17204, 17535 (West 1997).
This Court has often found that the enforcement of such a

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668 NIKE, INC. v. KASKY
Breyer, J., dissenting
law works constitutional injury even if enforcement proceed-
ings are not complete—indeed, even if enforcement is no
more than a future threat. See, e. g., Houston v. Hill, 482
U. S. 451, 459, n. 7 (1987) (standing where there is “ ‘a genu-
ine threat of enforcement’ ” against future speech); Steffel v.
Thompson, 415 U. S. 452, 459 (1974) (same). Cf. First Nat.
Bank of Boston v. Bellotti, 435 U. S. 765, 785, n. 21 (1978)
(The “burden and expense of litigating [an] issue” itself can
“unduly impinge on the exercise of the constitutional right”);
Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52–53 (1971)
(plurality opinion) (“The very possibility of having to engage
in litigation, an expensive and protracted process, is threat
enough”). And a threat of a civil action, like the threat of a
criminal action, can chill speech. See New York Times Co.
v. Sullivan, 376 U. S. 254, 278 (1964) (“Plainly the Alabama
law of civil libel is ‘a form of regulation that creates hazards
to protected freedoms markedly greater than those that at-
tend reliance upon the criminal law’ ”).
Here, of course, an action to enforce California’s laws—
laws that discourage certain kinds of speech—amounts to
more than just a genuine, future threat. It is a present real-
ity—one that discourages Nike from engaging in speech. It
thereby creates “injury in fact.” Supra, at 667. Further,
that injury is directly “traceable” to Kasky’s pursuit of this
lawsuit. And this Court’s decision, if favorable to Nike, can
“redress” that injury. Ibid.
Since Nike, not Kasky, now seeks to bring this case to
federal court, why should Kasky’s standing problems make a
critical difference? In ASARCO Inc. v. Kadish, 490 U. S.
605, 618 (1989), this Court specified that a defendant with
standing may complain of an adverse state-court judgment,
even if the other party—the party who brought the suit in
state court and obtained that judgment—would have lacked
standing to bring a case in federal court. See also Virginia
v. Hicks, ante, at 120–121.

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669 Cite as: 539 U. S. 654 (2003)
Breyer, J., dissenting
In ASARCO, state taxpayers (who ordinarily lack federal
“standing”) sued a state agency in state court, seeking a
judgment declaring that the State’s mineral leasing proce-
dures violated federal law. See 490 U. S., at 610. ASARCO
and other mineral leaseholders intervened as defendants.
Ibid. The plaintiff taxpayers obtained a state-court judg-
ment declaring that the State’s mineral leasing procedures
violated federal law. The defendant mineral leaseholders
asked this Court to review the judgment. And this Court
held that the leaseholders had standing to seek reversal of
that judgment here.
The Court wrote:
“When a state court has issued a judgment in a case
where plaintiffs in the original action had no standing
to sue under the principles governing the federal courts,
we may exercise our jurisdiction on certiorari [1] if
the judgment of the state court causes direct, specific,
and concrete injury to the parties who petition for our
review, where [2] the requisites of a case or controversy
are also met.” Id., at 623–624 (bracketed numbers
added).
No one denies that “requisites of a case or controversy” other
than standing are met here. But is there “direct, specific,
and concrete injury”?
In ASARCO itself, such “injury” consisted of the threat,
arising out of the state court’s determination, that the de-
fendants’ leases might later be canceled (if, say, a third party
challenged those leases in later proceedings and showed they
were not “made for ‘true value’ ”). Id., at 611–612, 618.
Here that “injury” consists of the threat, arising out of the
state court’s determination, that defendant Nike’s speech on
public matters might be “chilled” immediately and legally
restrained in the future. See supra, at 668. Where is the
meaningful difference?

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670 NIKE, INC. v. KASKY
Breyer, J., dissenting
I concede that the state-court determination in ASARCO
was more “final” in the sense that it unambiguously ordered
a declaratory judgment, see 490 U. S., at 611–612 (finding
that two exceptions to normal finality requirements applied),
while the state-court determination here, where such declar-
atory relief was not sought, takes the form of a more intrinsi-
cally interlocutory holding, see ante, at 662, and n. 4 (Ste-
vens, J., concurring). But with respect to “standing,” what
possible difference could that circumstance make? The
state court in ASARCO finally resolved federal questions
related to state leasehold procedures; the state court here
finally resolved the basic free speech issue—deciding that
Nike’s statements constituted “commercial speech” which,
when “false or misleading,” the government “may entirely
prohibit,” 27 Cal. 4th, at 946, 45 P. 3d, at 247. After answer-
ing the basic threshold question, the state court in ASARCO
left other, more specific questions for resolution in further
potential or pending proceedings, 490 U. S., at 611–612. The
state court here did the same.
In ASARCO, the relevant further proceedings might have
taken place in a new lawsuit; here they would have taken
place in the same lawsuit. But that difference has little
bearing on the likelihood of injury. Indeed, given the nature
of the speech-chilling injury here and the fact that it is likely
to occur immediately, I should think that constitutional
standing in this case would flow from standing in ASARCO
a fortiori.
II
No federal statute prevents us from hearing this case.
The relevant statute limits our jurisdiction to “[f]inal judg-
ments or decrees rendered by the highest court of a State
in which a decision could be had.” 28 U. S. C. § 1257(a) (em-
phasis added). But the California Supreme Court determi-
nation before us, while technically an interim decision, is a
“final judgment or decree” for purposes of this statute.

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Breyer, J., dissenting
That is because this Court has interpreted the statute’s
phrase “final judgment” to refer, in certain circumstances, to
a state court’s final determination of a federal issue, even if
the determination of that issue occurs in the midst of ongoing
litigation. Cox Broadcasting Corp. v. Cohn, 420 U. S. 469,
477 (1975). In doing so, the Court has said that it thereby
takes a “pragmatic approach,” not a “mechanical” approach,
to “determining finality.” Id., at 477, 486 (emphasis added).
And it has set forth several criteria that determine when an
interim state-court judgment is “final” for purposes of the
statute, thereby permitting our consideration of the federal
matter at issue.
The four criteria relevant here are those determining
whether a decision falls within what is known as Cox’s
“fourth category” or “fourth exception.” They consist of
the following:
(1) “the federal issue has been finally decided in the
state courts”;
(2) in further pending proceedings, “the party seeking
review here might prevail on the merits on nonfederal
grounds, thus rendering unnecessary review of the fed-
eral issue by this Court”;
(3) “reversal of the state court on the federal issue
would be preclusive of any further litigation on the rele-
vant cause of action rather than merely controlling the
nature and character of, or determining the admissibility
of evidence in, the state proceedings still to come”; and
(4) “a refusal immediately to review the state-court de-
cision might seriously erode federal policy.” Id., at
482–483.
Each of these four conditions is satisfied in this case.
A
Viewed from Cox’s “pragmatic” perspective, “the federal
issue has been finally decided in the state courts.” Id., at

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672 NIKE, INC. v. KASKY
Breyer, J., dissenting
482, 486. The California Supreme Court considered nine
specific instances of Nike’s communications—those upon
which Kasky says he based his legal claims. Brief for Re-
spondent 5. These include (1) a letter from Nike’s Director
of Sports Marketing to university presidents and athletic di-
rectors presenting “facts” about Nike’s labor practices; (2) a
30-page illustrated pamphlet about those practices; (3) a
press release (posted on Nike’s Web site) commenting on
those practices; (4) a posting on Nike’s Web site about its
“code of conduct”; (5) a document on Nike’s letterhead shar-
ing its “perspective” on the labor controversy; (6) a press
release responding to “[s]weatshop [a]llegations”; (7) a letter
from Nike’s Director of Labor Practices to the Chief Execu-
tive Officer of YWCA of America, discussing criticisms of
its labor practices; (8) a letter from Nike’s European public
relations manager to a representative of International Re-
structuring Education Network Europe, discussing Nike’s
practices; and (9) a letter to the editor of The New York
Times taking issue with a columnist’s criticisms of Nike’s
practices. Ibid.; see also Lodging of Petitioners 121–125,
182–191, 198–230, 270, 285, 322–324. The California Su-
preme Court then held that all this speech was “commercial
speech” and consequently the “governmen[t] may entirely
prohibit” that speech if it is “false or misleading.” 27 Cal.
4th, at 946, 45 P. 3d, at 247.
The California Supreme Court thus “finally decided” the
federal issue—whether the First Amendment protects the
speech in question from legal attack on the ground that it is
“false or misleading.” According to the California Supreme
Court, nothing at all remains to be decided with respect to
that federal question. If we permit the California Supreme
Court’s decision to stand, in all likelihood this litigation will
now simply seek to determine whether Nike’s statements
were false or misleading, and perhaps whether Nike was
negligent in making those statements—matters involving
questions of California law.

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Breyer, J., dissenting
I concede that some other, possibly related federal consti-
tutional issue might arise upon remand for trial. But some
such likelihood is always present in ongoing litigation, partic-
ularly where, as in past First Amendment cases, this Court
reviews interim state-court decisions regarding, for example,
requests for a temporary injunction or a stay pending appeal,
or (as here) denial of a motion to dismiss a complaint. E. g.,
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam) (denial of a stay pending appeal); Orga-
nization for a Better Austin v. Keefe, 402 U. S. 415 (1971)
(temporary injunction); Mills v. Alabama, 384 U. S. 214
(1966) (motion to dismiss).
Some such likelihood was present in Cox itself. The Cox
plaintiff, the father of a rape victim, sued a newspaper in
state court, asserting a right to damages under state law,
which forbade publication of a rape victim’s name. The trial
court, believing that the statute imposed strict liability on
the newspaper, granted summary judgment in favor of the
victim. See Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 64,
200 S. E. 2d 127, 131 (1973), rev’d, 420 U. S. 469 (1975). The
State Supreme Court affirmed in part and reversed in part.
That court agreed with the plaintiff that state law provided
a cause of action and that the cause of action was consistent
with the First Amendment. 231 Ga., at 64, 200 S. E. 2d,
at 131. However, the State Supreme Court disagreed about
the standard of liability. Rather than strict liability, the
standard, it suggested, was one of “wilful or negligent dis-
regard for the fact that reasonable men would find the in-
vasion highly offensive.” Ibid. And it remanded the case
for trial. The likelihood that further proceedings would
address federal constitutional issues—concerning the rela-
tion between, for instance, the nature of the privacy invasion,
the defendants’ state of mind, and the First Amendment—
would seem to have been far higher there than in any further
proceedings here. Despite that likelihood, and because the
State Supreme Court held in effect that the First Amend-

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674 NIKE, INC. v. KASKY
Breyer, J., dissenting
ment did not protect the speech at issue, this Court held that
its determination of that constitutional question was “plainly
final.” Cox, 420 U. S., at 485. California’s Supreme Court
has made a similar holding, and its determination of the fed-
eral issue is similarly “final.”
B
The second condition specifies that, in further proceedings,
the “party seeking review here”—i. e., Nike—“might prevail
on the merits on nonfederal grounds.” Id., at 482. If Nike
shows at trial that its statements are neither false nor mis-
leading, nor otherwise “unfair” under California law, Cal.
Bus. & Prof. Code Ann. §§ 17200, 17500 (West 1997), it
will show that those statements did not constitute unfair
competition or false advertising under California law—a non-
federal ground. And it will “prevail on the merits on non-
federal grounds,” Cox, 420 U. S., at 482. The second condi-
tion is satisfied.
C
The third condition requires that “reversal of the state
court on the federal issue . . . be preclusive of any further
litigation on the relevant cause of action.” Id., at 482–483.
Taken literally, this condition is satisfied. An outright re-
versal of the California Supreme Court would reinstate
the judgment of the California intermediate court, which
affirmed dismissal of the complaint without leave to amend.
Supra, at 665–666. It would forbid Kasky to proceed inso-
far as Kasky’s state-law claims focus on the nine documents
previously discussed. And Kasky has conceded that his
claims rest on statements made in those documents. Brief
for Respondent 5.
I concede that this Court might not reverse the California
Supreme Court outright. It might take some middle
ground, neither affirming nor fully reversing, that permits
this litigation to continue. See ante, at 659–660 (Stevens,
J., concurring). But why is that possibility relevant? The

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third condition specifies that “reversal”—not some other dis-
position—will preclude “further litigation.”
The significance of this point is made clear by our prior
cases. In Cox, this Court found jurisdiction despite the fact
that it might have chosen a middle First Amendment
ground—perhaps, for example, precluding liability (for publi-
cation of a rape victim’s name) where based on negligence,
but not where based on malice. And such an intermediate
ground, while producing a judgment that the State Supreme
Court decision was erroneous, would have permitted the
litigation to go forward. Cf. Brief for Appellants in Cox
Broadcasting Corp. v. Cohn, O. T. 1973, No. 73–938, p. 68,
n. 127 (arguing that “ ‘summary judgment, rather than trial
on the merits, is a proper vehicle for affording constitutional
protection’ ”). Similarly in Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241 (1974), the Court might have held that
the Constitution permits a State to require a newspaper to
carry a candidate’s reply to an editorial—but only in certain
circumstances—thereby potentially leaving a factual issue
whether those circumstances applied. Cf. Brief for Appel-
lant in Miami Herald Publishing Co. v. Tornillo, O. T. 1973,
No. 73–797, pp. 26–27, and n. 60 (noting that the State Su-
preme Court based its decision in part on a conclusion, un-
supported by record evidence, that control of mass media
had become substantially concentrated). One can imagine
similar intermediate possibilities in virtually every case in
which the Court has found this condition satisfied, including
those involving technical questions of statutory jurisdiction
and venue, cf. ante, at 659 (Stevens, J., concurring).
Conceivably, one might argue that the third condition is
not satisfied here despite literal compliance, see supra, at
674 and this page, on the ground that, from a pragmatic per-
spective, outright reversal is not a very realistic possibility.
But that proposition simply is not so. In my view, the prob-
abilities are precisely the contrary, and a true reversal is a
highly realistic possibility.

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676 NIKE, INC. v. KASKY
Breyer, J., dissenting
To understand how I reach this conclusion, the reader
must recall the nature of the holding under review. The
California Supreme Court held that certain specific commu-
nications, exemplified by the nine documents upon which
Kasky rests his case, fall within that aspect of the Court’s
commercial speech doctrine that says the First Amendment
protects only truthful commercial speech; hence, to the ex-
tent commercial speech is false or misleading, it is unpro-
tected. See supra, at 666.
The Court, however, has added, in commercial speech
cases, that the First Amendment “ ‘embraces at the least the
liberty to discuss publicly and truthfully all matters of public
concern.’ ” Consolidated Edison Co. of N. Y. v. Public Serv.
Comm’n of N. Y., 447 U. S. 530, 534 (1980); accord, Central
Hudson, 447 U. S., at 562–563, n. 5. And in other contexts
the Court has held that speech on matters of public concern
needs “ ‘breathing space’ ”—potentially incorporating certain
false or misleading speech—in order to survive. New York
Times, 376 U. S., at 272; see also, e. g., Gertz v. Robert Welch,
Inc., 418 U. S. 323, 340 (1974); Time, Inc. v. Hill, 385 U. S.
374, 388–389 (1967).
This case requires us to reconcile these potentially con-
flicting principles. In my view, a proper resolution here
favors application of the last mentioned public-speech prin-
ciple, rather than the first mentioned commercial-speech
principle. Consequently, I would apply a form of heightened
scrutiny to the speech regulations in question, and I believe
that those regulations cannot survive that scrutiny.
First, the communications at issue are not purely commer-
cial in nature. They are better characterized as involving
a mixture of commercial and noncommercial (public-issue-
oriented) elements. The document least likely to warrant
protection—a letter written by Nike to university presidents
and athletic directors—has several commercial characteris-
tics. See Appendix, infra (reproducing pages 190 and 191 of
Lodging of Petitioners). As the California Supreme Court

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Breyer, J., dissenting
implicitly found, 27 Cal. 4th, at 946, 45 P. 3d, at 247, it was
written by a “commercial speaker” (Nike), it is addressed
to a “commercial audience” (potential institutional buyers or
contractees), and it makes “representations of fact about the
speaker’s own business operations” (labor conditions). Ibid.
See, e. g., Bolger v. Youngs Drug Products Corp., 463 U. S.
60, 66–67 (1983).
But that letter also has other critically important and,
I believe, predominant noncommercial characteristics with
which the commercial characteristics are “inextricably inter-
twined.” Riley v. National Federation of Blind of N. C.,
Inc., 487 U. S. 781, 796 (1988). For one thing, the letter
appears outside a traditional advertising format, such as a
brief television or newspaper advertisement. It does not
propose the presentation or sale of a product or any other
commercial transaction, United States v. United Foods, Inc.,
533 U. S. 405, 409 (2001) (describing this as the “usua[l]”
definition for commercial speech). Rather, the letter sug-
gests that its contents might provide “information useful in
discussions” with concerned faculty and students. Lodging
of Petitioners 190. On its face, it seeks to convey informa-
tion to “a diverse audience,” including individuals who have
“a general curiosity about, or genuine interest in,” the public
controversy surrounding Nike, Bigelow v. Virginia, 421 U. S.
809, 822 (1975).
For another thing, the letter’s content makes clear that, in
context, it concerns a matter that is of significant public in-
terest and active controversy, and it describes factual mat-
ters related to that subject in detail. In particular, the let-
ter describes Nike’s labor practices and responds to criticism
of those practices, and it does so because those practices
themselves play an important role in an existing public de-
bate. This debate was one in which participants advocated,
or opposed, public collective action. See, e. g., Lodging of
Petitioners 143 (article on student protests), 232–236 (fact
sheet with “Boycott Nike” heading). See generally Roth v.

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678 NIKE, INC. v. KASKY
Breyer, J., dissenting
United States, 354 U. S. 476, 484 (1957) (The First Amend-
ment’s protections of speech and press were “fashioned to
assure unfettered interchange of ideas for the bringing about
of political and social changes”). That the letter is factual
in content does not argue against First Amendment protec-
tion, for facts, sometimes facts alone, will sway our views on
issues of public policy.
These circumstances of form and content distinguish the
speech at issue here from the more purely “commercial
speech” described in prior cases. See, e. g., United Foods,
supra, at 409 (commercial speech “usually defined as speech
that does no more than propose a commercial transaction”
(emphasis added)); Board of Trustees of State Univ. of N. Y.
v. Fox, 492 U. S. 469, 473–474 (1989) (describing this as “the
test”); Central Hudson, 447 U. S., at 561 (commercial speech
defined as “expression related solely to the economic inter-
ests of the speaker and its audience” (emphasis added)).
The speech here is unlike speech—say, the words “dolphin-
safe tuna”—that commonly appears in more traditional ad-
vertising or labeling contexts. And it is unlike instances of
speech where a communication’s contribution to public de-
bate is peripheral, not central, cf. id., at 562–563, n. 5.
At the same time, the regulatory regime at issue here dif-
fers from traditional speech regulation in its use of private
attorneys general authorized to impose “false advertising”
liability even though they themselves have suffered no harm.
See Cal. Bus. & Prof. Code Ann. §§ 17204, 17535 (West 1997).
In this respect, the regulatory context is unlike most tradi-
tional false advertising regulation. And the “false advertis-
ing” context differs from other regulatory contexts—say,
securities regulation—where a different balance of concerns
calls for different applications of First Amendment princi-
ples. Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447,
456–457 (1978).
These three sets of circumstances taken together—circum-
stances of format, content, and regulatory context—warrant

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Breyer, J., dissenting
treating the regulations of speech at issue differently from
regulations of purer forms of commercial speech, such as
simple product advertisements, that we have reviewed in the
past. And, where all three are present, I believe the First
Amendment demands heightened scrutiny.
Second, I doubt that this particular instance of regulation
(through use of private attorneys general) can survive
heightened scrutiny, for there is no reasonable “fit” between
the burden it imposes upon speech and the important gov-
ernmental “ ‘interest served,’ ” Fox, supra, at 480. Rather,
the burden imposed is disproportionate.
I do not deny that California’s system of false advertising
regulation—including its provision for private causes of ac-
tion—furthers legitimate, traditional, and important public
objectives. It helps to maintain an honest commercial mar-
ketplace. It thereby helps that marketplace better allocate
private goods and services. See Virginia Bd. of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748,
765 (1976). It also helps citizens form “intelligent opinions
as to how [the marketplace] ought to be regulated or al-
tered.” Ibid.
But a private “false advertising” action brought on behalf
of the State, by one who has suffered no injury, threatens to
impose a serious burden upon speech—at least if extended
to encompass the type of speech at issue under the standards
of liability that California law provides, see Cal. Bus. & Prof.
Code Ann. §§ 17200, 17500 (West 1997) (establishing regimes
of strict liability, as well as liability for negligence); Cortez
v. Purolator Air Filtration Products Co., 23 Cal. 4th 163,
181, 999 P. 2d 706, 717 (2000) (stating that California’s unfair
competition law imposes strict liability). The delegation of
state authority to private individuals authorizes a purely
ideological plaintiff, convinced that his opponent is not telling
the truth, to bring into the courtroom the kind of political
battle better waged in other forums. Where that political
battle is hard fought, such plaintiffs potentially constitute

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680 NIKE, INC. v. KASKY
Breyer, J., dissenting
a large and hostile crowd freely able to bring prosecutions
designed to vindicate their beliefs, and to do so unencum-
bered by the legal and practical checks that tend to keep the
energies of public enforcement agencies focused upon more
purely economic harm. Cf. Forsyth County v. Nationalist
Movement, 505 U. S. 123, 134–135 (1992); Bantam Books, Inc.
v. Sullivan, 372 U. S. 58, 67–71 (1963).
That threat means a commercial speaker must take partic-
ular care—considerably more care than the speaker’s non-
commercial opponents—when speaking on public matters.
A large organization’s unqualified claim about the adequacy
of working conditions, for example, could lead to liability,
should a court conclude after hearing the evidence that
enough exceptions exist to warrant qualification—even if
those exceptions were unknown (but perhaps should have
been known) to the speaker. Uncertainty about how a court
will view these, or other, statements, can easily chill a speak-
er’s efforts to engage in public debate—particularly where a
“false advertising” law, like California’s law, imposes liabil-
ity based upon negligence or without fault. See Gertz, 418
U. S., at 340; Time, 385 U. S., at 389. At the least, they cre-
ate concern that the commercial speaker engaging in public
debate suffers a handicap that noncommercial opponents do
not. See First Nat. Bank, 435 U. S., at 785–786; see also
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S.
819, 828 (1995).
At the same time, it is difficult to see why California needs
to permit such actions by private attorneys general—at least
with respect to speech that is not “core” commercial speech
but is entwined with, and directed toward, a more general
public debate. The Federal Government regulates unfair
competition and false advertising in the absence of such
suits. 15 U. S. C. § 41 et seq. As far as I can tell, Califor-
nia’s delegation of the government’s enforcement authority
to private individuals is not traditional, and may be unique,
Tr. of Oral Arg. 42. I do not see how “false advertising”

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Breyer, J., dissenting
regulation could suffer serious impediment if the Constitu-
tion limited the scope of private attorney general actions
to circumstances where more purely commercial and less
public-debate-oriented elements predominate. As the his-
torical treatment of speech in the labor context shows,
substantial government regulation can coexist with First
Amendment protections designed to provide room for public
debate. Compare, e. g., NLRB v. Gissel Packing Co., 395
U. S. 575, 616–620 (1969) (upholding prohibition of employer
comments on unionism containing threats or promises), with
Thomas v. Collins, 323 U. S. 516, 531–532 (1945); Thornhill
v. Alabama, 310 U. S. 88, 102 (1940).
These reasons convince me that it is likely, if not highly
probable, that, if this Court were to reach the merits, it
would hold that heightened scrutiny applies; that, under
the circumstances here, California’s delegation of enforce-
ment authority to private attorneys general disproportion-
ately burdens speech; and that the First Amendment conse-
quently forbids it.
Returning to the procedural point at issue, I believe this
discussion of the merits shows that not only will “reversal”
of the California Supreme Court “on the federal issue” prove
“preclusive of any further litigation on the relevant cause of
action,” Cox, 420 U. S., at 482–483, but also such “reversal”
is a serious possibility. Whether we take the words of the
third condition literally or consider the circumstances prag-
matically, that condition is satisfied.
D
The fourth condition is that “a refusal immediately to re-
view the state-court decision might seriously erode federal
policy.” Id., at 483. This condition is met because refusal
immediately to review the state-court decision before us will
“seriously erode” the federal constitutional policy in favor of
free speech.

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682 NIKE, INC. v. KASKY
Breyer, J., dissenting
If permitted to stand, the state court’s decision may well
“chill” the exercise of free speech rights. See id., at 486;
Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46, 56 (1989).
Continuation of this lawsuit itself means increased expense,
and, if Nike loses, the results may include monetary liability
(for “restitution”) and injunctive relief (including possible
corrective “counterspeech”). See, e. g., Cel-Tech Communi-
cations, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.
4th 163, 179, 973 P. 2d 527, 539 (1999); Consumers Union of
U. S., Inc. v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963,
971–972, 6 Cal. Rptr. 2d 193, 197–198 (1992). The range of
communications subject to such liability is broad; in this case,
it includes a letter to the editor of The New York Times.
The upshot is that commercial speakers doing business in
California may hesitate to issue significant communications
relevant to public debate because they fear potential lawsuits
and legal liability. Cf. Gertz, supra, at 340 (warning that
overly stringent liability for false or misleading speech can
“lead to intolerable self-censorship”); Time, supra, at 389
(“Fear of large verdicts in damage suits for innocent or
merely negligent misstatement, even fear of the expense in-
volved in their defense, must inevitably cause publishers to
‘steer . . . wider of the unlawful zone’ ”).
This concern is not purely theoretical. Nike says without
contradiction that because of this lawsuit it has decided “to
restrict severely all of its communications on social issues
that could reach California consumers, including speech in
national and international media.” Brief for Petitioners 39.
It adds that it has not released its annual Corporate Respon-
sibility Report, has decided not to pursue a listing in the
Dow Jones Sustainability Index, and has refused “dozens of
invitations . . . to speak on corporate responsibility issues.”
Ibid. Numerous amici—including some who do not believe
that Nike has fully and accurately explained its labor prac-
tices—argue that California’s decision will “chill” speech and

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683 Cite as: 539 U. S. 654 (2003)
Breyer, J., dissenting
thereby limit the supply of relevant information available to
those, such as journalists, who seek to keep the public in-
formed about important public issues. Brief for American
Federation of Labor and Congress of Industrial Organiza-
tions as Amicus Curiae 2–3; Brief for Chamber of Com-
merce of the United States of America as Amicus Curiae
10–12; Brief for ABC Inc. et al. as Amici Curiae 6–13; Brief
for Pfizer Inc. as Amicus Curiae 10–14.
In sum, all four conditions are satisfied here. See supra,
at 671. Hence, the California Supreme Court’s judgment
falls within the scope of the term “final” as it appears in 28
U. S. C. § 1257(a), and no statute prevents us from deciding
this case.
III
There is no strong prudential argument against deciding
the questions presented. Compare ante, at 663–664 (Ste-
vens, J., concurring), with Ashwander v. TVA, 297 U. S. 288,
346–348 (1936) (Brandeis, J., concurring). These constitu-
tional questions are not easy ones, for they implicate both
free speech and important forms of public regulation. But
they arrive at the threshold of this case, asking whether the
Constitution permits this private attorney general’s lawsuit
to go forward on the basis of the pleadings at hand. This
threshold issue was vigorously contested and decided, ad-
verse to Nike, below. Cf. Yee v. Escondido, 503 U. S. 519,
534–535 (1992). And further development of the record
seems unlikely to make the questions presented any easier
to decide later.
At the same time, waiting extracts a heavy First Amend-
ment price. If this suit goes forward, both Nike and other
potential speakers, out of reasonable caution or even an ex-
cess of caution, may censor their own expression well beyond
what the law may constitutionally demand. See Time, 385
U. S., at 389; Gertz, 418 U. S., at 340. That is what a “chill-
ing effect” means. It is present here.

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684 NIKE, INC. v. KASKY
Breyer, J., dissenting
IV
In sum, I can find no good reason for postponing a decision
in this case. And given the importance of the First Amend-
ment concerns at stake, there are strong reasons not to do
so. The position of at least one amicus—opposed to Nike
on the merits of its labor practice claims but supporting Nike
on its free speech claim—echoes a famous sentiment re-
flected in the writings of Voltaire: ‘I do not agree with what
you say, but I will fight to the end so that you may say it.’
See Brief for American Federation of Labor and Congress of
Industrial Organizations as Amicus Curiae 3. A case that
implicates that principle is a case that we should decide.
I would not dismiss as improvidently granted the writ
issued in this case. I respectfully dissent from the Court’s
contrary determination.

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685 Cite as: 539 U. S. 654 (2003)
Appendix to opinion of Breyer, J.
APPENDIX TO OPINION OF BREYER, J.
What follows is a copy of the letter to university presi-
dents and athletic directors at issue in this case, Lodging of
Petitioners 190–191:

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686 NIKE, INC. v. KASKY
Appendix to opinion of Breyer, J.

Job: 539ORD Take: NOT1 Date/Time: 03-30-05 13:21:33
Reporter’s Note
The next page is purposely numbered 901. The numbers between 686
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.