First Amendment is left twisting in the wind

It was unfortunate in June when the Supreme Court of the United States decided to take the easy way out of an important First Amendment case, saying it was too early for the highest court in the land to address the issues raised in Kasky vs. Nike.
It was even more unfortunate when Nike, the athletic shoe giant, made a business decision last week to settle the five-year-old case for a relatively paltry sum of $1.5 million.
The settlement allows Nike to return to the business of producing overseas and marketing here some of the trendiest and most overpriced footwear a mother taking her son to the shoe store has ever seen.
Unfortunately, the settlement leaves standing a whacky California Supreme Court decision that essentially ties the hands of Nike and any other company that tries to defend itself against harsh criticism -- at least in California.
Some background
Marc Kasky, a San Francisco activist, filed suit in 1998 accusing Nike of lying about how its contractors treated workers in Third World factories. These lies, Kasky alleged, were contained in press releases, speeches and letters to the editor by company officials and spokesmen.
Until this lawsuit was filed, it had been firmly accepted legal doctrine in the United States for about four decades that when discussing issues of public interest, some statements were going to be made that turned out o be untrue. That only makes sense, really. Essentially two sides are arguing a point, and if an activist says "Nike runs sweatshops," and Nike replies, "We most certainly do not," one of the sides is wrong.
An open society recognizes the value of hearty debate and so is willing to give both sides some leeway in making their arguments.
But Kasky found a a way of effectively gagging Nike. He filed suit under a California law that prohibits false advertising. Virtually everything Nike says it says to promote the sale of its products, the argument went, and so while the activist was free to accuse, the company's hands were tied in defending itself.
California's commercial speech laws, Kasky and his supporters argued, trumped the First Amendment.
Such an interpretation so stacks the deck against the company that it would seem like a no-brainer for any court in the land. But the California Supreme Court seems to specialize in no-brainers. It sided with Kasky by a 4-3 vote.
Nike went to the U.S. Supreme Court for relief, but the court spit the hook. In effect, it told the parties to go back to California and argue the case on its merits, and maybe SCOTUS would find time for the issue in a few years, if the case boomeranged.
Walking away
Now, Nike has bought its way out of the Kasky case for the price of about 10,000 pairs of its most expensive sneakers. Meanwhile, the California Supreme Court's ruling stands. Every company in the state must now parse every reply it gives to an accusation that it is taking advantage of consumers or workers, fouling the air or water, producing a dangerous product, or any of a thousand other issues of importance to society.
It is difficult to believe than an injustice such as that could be allowed to stand, but the justices of the Supreme Court, who are supposed to be the brightest legal minds in the nation, should have seen it coming. Instead of looking for a way to avoid making a decision, the court should have shouted that it stands for free, open debate, for a society that values the rights of two parties to disagree. That it didn't do so instinctively is cause for concern.