Supreme Court misses chance to defend First Amendment

In a week that saw the Supreme Court of the United States take a firm stand on some of the toughest issues facing the nation, it was disappointing to see the court turn its back on an important Bill of Rights case.
The Nike swoosh is one of the most recognizable trademarks in the world, but when labor and global activists during the 1990s looked at Nike, all they saw was a target. They accused Nike of manufacturing its fashionable -- and expensive -- footwear in Third World sweatshops and decided to pressure and embarrass Nike into making changes.
That's one of the great things about America. People who feel strongly about such issues are free to say so. They're free to picket outside Nike's headquarters carrying signs that accuse the company of outrageous behavior. And Nike is free to defend itself. At least it should be.
Nike countered with press releases and letters to the editor and to key customers in university athletic departments. It commissioned a report by former U.N. ambassador Andrew Young, who found that Nike was not mistreating its workers.
One-way street
Fair enough, most would say. But the activists cried foul and they found a California law that tilted the scale in their favor. For its efforts to protect its good name, Nike was accused by activist Marc Kasky of violating California's laws that prohibit false or misleading advertising.
As far as Kasky was concerned, the First Amendment protected him and other detractors of Nike when they accused the company of misdeeds, but not Nike. Two lower courts threw the case out, but Kasky finally found a sympathetic ear in the California Supreme Court. It ordered a trial in the case.
Nike appealed that ruling to the Supreme Court of the United States, which should have taken the time and shown the courage to defend the First Amendment. Instead, in a one sentence order, the Supreme Court sent the case back to California, where Nike will have to go through the time and expense of defending itself at trial.
Then there will be the inevitable appeals, most likely back to the Supreme Court of the United States, regardless of which way the lower courts rule. Years and hundreds of thousands of dollars in legal fees from now, the Supreme Court will have to once again face the question: In the market place of ideas, should a company be virtually powerless to defend itself?
And in the meantime, other companies facing other attackers -- especially in California -- will muzzle themselves for fear of saying something in their defense that will allow their detractors to sue them for false advertising.
Minority view
In dissent, Justice Stephen Breyer, joined by Sandra Day O'Connor, observed that "the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on."
None of the conservative judges in the court were willing to acknowledge this obvious fact, which is troublesome. Where, we wonder, in the First Amendment, which guarantees freedom of speech and the press (as well as freedom of religion, assembly and the right to petition the government for redress of grievances), is there an exception that allows the state of California to muzzle Nike?
Nike was not making false claims about the quality or performance of its shoes or apparel, which would arguably amount to a kind of fraud that can be dealt with under false advertising laws.
It was entering into a public debate on issues of importance, issues that in this case were raised by its detractors. The California Supreme Court's reading allows special interest groups and their spokesmen, who may or may not have the purest of motives, to take pot shots at Nike or any other commercial entity they choose. But Nike and similar targets aren't even able to shield themselves, much less shoot back for fear of landing in court..
That's not the American way, and the issue is important enough that the Supreme Court should have addressed it without unnecessary delay.