The U.S. Supreme Court will hear oral arguments on Wednesday in Nike v. Kasky, the corporate speech case which CAC joined as a “friend of the court” on Nike’s behalf. The argument will take place from approximately 11 a.m. to Noon. In an interesting twist, the case for ruling in Nike’s favor will be presented by Harvard professor Laurence Tribe and U.S. Solicitor General Theodore Olson. Tribe represents Nike, while Olson will argue for the federal government in general support of Nike’s position. The last time both men appeared before the Supreme Court together was December 2000 in Bush v. Gore, with Olson representing President Bush and Tribe representing Vice President Gore.
As detailed elsewhere on CAC’s website, this case involves Nike’s right to defend itself publicly against anti-capitalist activists who oppose the company’s labor practices. The California Supreme Court held Nike could be held to strict liability for their statements, while Nike opponents enjoyed categorical First Amendment immunity. Marc Kasky, one of the anti-Nike activists, sued the company under California’s generous definition of standing, which anoints every California resident a “private attorney general” for purposes of consumer fraud actions. Thus, Kasky is the plaintiff despite alleging no injury to himself, nor even a personal knowledge of the facts regarding the truthfulness of Nike’s statements.
Arguing Kasky’s case on Wednesday is attorney Paul Hoeber, a sole practitioner affiliated with the San Francisco firm of Bushnell, Caplan & Fielding. Hoeber is a former law clerk to the late Justice William Brennan, ironically a great champion of First Amendment liberties.