What I'll be looking for is indications that the Court is examining this case in fundamental terms. Justice Thomas threw a bone to the defenders of businessmen's right to free speech when he wrote in his concurring opinion in 44 Liquormart v. Rhode Island. Justice Thomas wrote that he "do[es] not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” CAC formed its amicus brief to the court on the Nike case precisely along the lines outlined by Justice Thomas.
What also will be interesting is if our challenge to Justice Scalia has an impact with the other Justices on the Court. In 44 Liquormart, Justice Scalia wrote that he wanted historical reports on the practices of the state legislatures in interpreting their own free speech guarantees before he would be willing to abandon the commercial speech doctrine. Typical Justice Scalia reasoning--he's a Supreme Court Justice who hates to think in any principle beyond what others think. In our brief, we directly attacked Scalia's view, arguing that the Ninth Amendment alone provides sufficient justification for the Court to protect the rights of businessmen to self-interest speech.
CAC argued the following:
The yearning for historical context misses the point. It should not be necessary for Nike to prove the existence of its First Amendment rights by identifying specific historical statements in support of “commercial” speech. Indeed, where would one find such “dispositive” evidence? Presumably, not every state legislature—at any given time—holds identical views regarding commercial speech, the Fourteenth Amendment, or any other identifiable topic. It has never been necessary in other First Amendment contexts for a challenged party to demonstrate positively that their expressive acts represent a “long accepted practice.” Under such a requirement, this Court would never have recognized First Amendment protections for flag burning, the distribution of adult magazines, or student expression on school grounds.That's right. It’s the Court's job to check the government's role in protecting individual rights and the Ninth Amendment gives them the power to do it. If the Ninth Amendment’s importance is acknowledged by the Court, CAC will have won a major victory.
In short, a lack of historical evidence must not foreclose protection for “commercial” speech. But if evidence were needed, the Ninth Amendment provides it. The amendment provides “The enumeration, in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Historically, the Court has been reluctant to read much into this amendment, choosing to uphold non-enumerated rights under the Fifth and Fourteenth Amendments instead. Then, in June of 1965, the Court handed down its radical decision in Griswold v. Connecticut, wherein the Court upheld the unenumerated right of a married couple to use contraception, availing itself of the Ninth Amendment in rendering its holding. In a concurring opinion, Justice Goldberg, joined by Justice Brennan and Chief Justice Warren, wrote:
Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State’s infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75. 94 – 95.In the case now before the Court, the Ninth Amendment provides the key to understanding the scope and reach of the First Amendment.