U.S. Supreme Court agrees to hear Nike's First Amendment case

Urged by Nike to review a California state court ruling that affects First Amendment protection for companies that speak on public issues, the U.S. Supreme Court has agreed to “just do it.”

Nike’s troubles began in May 2002 when the California Supreme Court ruled 4-3 that because a company’s public statements about its operations might persuade consumers to buy its products, those statements must be treated as commercial advertising, which limits First Amendment protection.

The U.S. Supreme Court’s decision in the case may help clarify whether a company’s public statements about its operations are entitled to the same constitutional protections that its critics enjoy.

Shortly after Nike appealed to the courts to review the case in November 2002, more than 40 groups — including CNN, Microsoft, the New York Times, Bank of America and the ACLU — filed amicus (“friend of the court”) briefs expressing concern over the California decision. Media institutions — including CBS, the Washington Post and the Los Angeles Times — said in a brief that the California decision posed a serious and immediate threat to the media’s ability to report on important issues regarding corporate America and could deter businesses from speaking to the press on various public issues.

Leading the oral arguments on Nike’s behalf are Laurence Tribe, a Harvard University constitutional scholar and leading Supreme Court advocate, and former Solicitor General Walter Dellinger, head of the Supreme Court practice at O’Melveny & Meyers LLP.

“We are pleased that the court has agreed to review this case,” said Tribe. “The justices are likely concerned that the California decision appears contrary to years of Supreme Court rulings encouraging free speech.”

Nike is expected soon to file a brief outlining its arguments. The court will schedule an oral argument in March or April, and a decision is expected this summer.