Monday, June 30, 2003

Volokh on Nike:: Eugene's piece in the WSJ today explains the court's decision not to render judgement. He also gives a prediction of how they might decide it in the future, based on arguments by justices O'Conner and Breyer.
Justice Stephen Breyer, joined by Justice Sandra Day O'Connor, however, disagreed with the others on this procedural point, and expressed a view on the substance as well: Because the commercial message (buy our shoes) was mixed with a political message (our political opponents are wrong), and was presented outside a traditional advertising medium, it should have been treated as fully protected.

Moreover, Justice Breyer suggested, the particular structure of the California false advertising law was unconstitutional as well. The law lets any citizen sue over allegedly false or misleading statements by a business. In this respect, the law differs from traditional false advertising laws used by government agencies, or by people who actually bought a company's products in reliance on the ads. This, Justice Breyer said, lets "a large and hostile crowd freely . . . bring prosecutions designed to vindicate their beliefs," without facing the practical constraints that keep prosecutors focused on genuinely economically harmful conduct -- and, he reasoned, the risk of such lawsuits may deter businesses from participating in public debates.
If the California court rules against Nike, it may still be overturned by the Supreme. that would be good news.

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