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Peeved that the California Supreme Court refused to rehear a blockbuster case holding companies liable for public relations policy statements, Nike Inc. announced Thursday the hiring of two major legal guns to seek review by the nation’s highest court. Harvard Law School Professor Laurence Tribe and former Acting U.S. Solicitor General Walter Dellinger have been hired to lead the effort at getting the case heard by the U.S. Supreme Court, officials with the Oregon-based shoemaker said in a two-page press statement. Hiring Tribe, a noted constitutional law scholar, and Dellinger, who heads up the Supreme Court practice at Los Angeles’ O’Melveny & Myers, signals the seriousness of Nike’s intent, but it comes as little surprise considering company officials’ anger over the California court’s May 2 ruling. In that decision — Kasky v. Nike Inc., 27 Cal.4th 939 — the justices ruled that companies could be sued for false advertising over policy statements made in public relations campaigns. They also said Nike’s statements denying slave-like conditions at its overseas factories constituted a form of commercial speech not protected by the First Amendment. Nike had argued for a rehearing, saying the court’s decision “created a sweeping and wholly unprecedented test for lowering the First Amendment’s protective shield for the participants on one side, but not the other, of key economic debates.” The justices voted 4-2 on Wednesday to deny rehearing. Justice Janice Rogers Brown was absent and didn’t participate, but Justices Marvin Baxter and Ming Chin voted to grant a rehearing. All three dissented from the original ruling. In Nike’s statement, Tribe called the May ruling “a chilling conversation stopper” and predicted that it would have “far-reaching implications” worldwide. “The net effect of this novel ruling,” he said, “is to make it extremely dangerous for virtually any business or other organization to utter anything beyond the most innocuous and vaporous generalities about its practices, whether in this country or abroad. “Especially at a time when the watchword is corporate transparency,” he added, “we’re fortunate that the First Amendment forbids legal schemes like California’s, under which any savvy company would inform the public of next to nothing.” Dellinger said in the company’s statement that the Nike ruling is potentially the “most important free speech case” since New York Times v. Sullivan, 376 U.S. 254, the historic 1964 case in which the U.S. Supreme Court protected the press from libel suits for reporting on public issues. “Like Sullivan,” Dellinger said, “this case involves an attempt to suppress speech at the very core of the First Amendment — speech that arises out of public debate on issues of national and international concern.” The San Francisco-based American Civil Liberties Union of Northern California is also assisting on the appeal effort. Opposing attorneys for Marc Kasky, the winning plaintiff in the Nike case, couldn’t be reached for comment. They are solo practitioner Paul Hoeber, Bushnell, Caplan & Fielding partner Alan Caplan and Leonard Simon, of counsel in the San Diego office of Milberg Weiss Bershad Hynes & Lerach.

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