Thursday, June 26, 2003

Rights and Reason: Punting on Nike

As Skip reported below, the US Supreme Court voted to dismiss the writ of certiorari in the Nike commercial speech case as "improvidently granted." Failing to provide for the future is a recurring theme with the Court these days.

The Court received 31 amicus curiae briefs on the merits of this case, including the brief submitted by the Center. These briefs were not exercises in billable hours, but an indication of the serious implications of this case upon freedom in America. The Court's justifications for punting on Nike (or more properly, the justifications of those who saw fit to offer a justification--Justices Rehnquist, Scalia and Thomas offered none) are weak at best. Justice Stevens, in his concurring opinion argued that the "novel constitutional questions" were better left to lower courts to sort though first.

Yet the threat to free speech is not weak. As Justice Breyer observed in his dissent,

[...] waiting extracts a heavy First Amendment price. If this suit goes forward, both Nike and other potential speakers, out of reasonable caution or even an excess of caution, may censor their own expression well beyond what the law may constitutionally demand. That is what a "chilling effect" means. It is present here.
We noted as much in our amicus to the Court:

In maintaining the modern commercial speech doctrine, the Court has failed to recognize that individuals value their membership in society largely for the selfish economic benefits that come from free trade with others. In a society that recognizes individual rights, all interactions are voluntary, based on mutual exchange to mutual benefit. It is only in a system of free and un-coerced exchange that individuals can properly trade to mutual benefit. Accordingly, one's political interests and one's economic interests are joined, sharing the same selfish motivation and deserving the same protection.

Yet in failing to protect the speech necessary to defend an individual's economic relationships with others, the Court has relegated self-interested speech to an intellectual ghetto. In the case before the Court, the California Supreme Court holds that because Nike, as a corporation, is acting out of its own economic self-interest, its employees and shareholders ultimately have no right to submit their views to the public. This view is false.
The Supreme Court's dismissal order now means that the case returns to the California courts and certain appeal. See 'ya next term, Marc. . .

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