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The last time Harvard Law School professor Laurence Tribe and Solicitor General Theodore Olson stood before the Supreme Court in the same case, they were on opposite sides in the first of two historic oral arguments stemming from the Florida recount in the 2000 presidential election. On April 23, Tribe and Olson will be arguing again — not against each other but on the same side of a case, Nike v. Kasky, No. 02-575, that some think could have historic implications for the First Amendment rights of corporations. At issue is whether Nike, the athletic apparel maker, can be sued by private individuals like California activist Marc Kasky under state unfair competition laws for statements the company has made in defense of its overseas labor practices. Tribe, representing Nike, couldn’t be happier that his former adversary will be at his side. “The two of us have known, respected, and liked one another for many years. That’s been true when we have opposed one another and when we have supported one another,” Tribe says. “I much prefer to be arguing with Ted than against him.” But the case, which had looked earlier like an easy First Amendment victory for Nike, has gotten murkier in recent weeks as briefs have been filed and arguments fleshed out. First, some are questioning how much Tribe will gain by having Olson on his side, because Olson’s brief makes the case for some government regulation of what could be viewed as a corporation’s noncommercial speech. At the same time, other observers are beginning to think that the case will fall apart for technical reasons. In that scenario, if the Court produces any ruling at all, it will be limited — not a strong affirmation of the corporate free speech rights. Earlier, some media advocates were even hoping the Court would use the case to erase the distinction between “commercial speech,” or advertising, which has traditionally enjoyed less First Amendment protection, and the kind of core political speech Nike says it was engaged in when it combated charges that its products were made in sweatshops. In newspaper articles, letters to the editor, and other media, Nike asserted, for instance, that its contractors followed labor rules and did not mistreat workers. If Nike’s response to the anti-globalization movement is treated like nothing more than an advertisement for its sneakers subject to regulation and liability for false statements, Nike and its allies argue, corporations will withdraw from public debate, and the public relations industry will be crippled. But if Nike wins, the Kasky faction contends, then almost everything a corporation does or says will be beyond the reach of the Federal Trade Commission or other regulatory agencies. With the increasing complications, however, it’s becoming more likely the Court won’t come down decisively on either side of that divide. “While it has great potential, it really could turn out to be a rather nickel-and-dime case,” says Ronald Collins, senior scholar at the First Amendment Center in Arlington, Va. Several advocacy groups and the solicitor general seem to be anticipating that the case will fizzle, offering the Court a variety of ways of resolving it on limited grounds. Olson is pushing for a simple result. He wants the Court to rule that Kasky, as a private figure who has not suffered harm, should not be allowed to seek relief for Nike’s allegedly false statements — regardless of whether Nike’s statements are defined as commercial or noncommercial speech. “The Court would be wise to leave those questions for another day,” says Olson, even though Nike urges the Court to find that the statements were not commercial speech. In a footnote that has raised eyebrows among First Amendment groups, Olson’s brief also posits that even though Kasky should lose, a company’s op-ed column that “falsely extols” its own environmental practices on Earth Day could be subjected to a fraud action by a government agency like the FTC. Bruce Johnson of the Seattle firm Davis Wright Tremaine, who wrote a brief for media organizations, says the footnote worries him because it implies a broader definition of regulable commercial speech than he would like to see. In his view, the only communication that could be challenged as less-protected commercial speech is “that which does nothing more than propose a transaction,” or in other words, an advertisement. “It would be a very boring op-ed that could be regulated,” Johnson says. “It would say, ‘I have seven pounds of tomatoes to sell.’ “ Collins of the First Amendment Center says the footnote suggests that Olson is a “one-date lover” whose support for Nike and for broader First Amendment interests in the case is limited. He says Olson’s narrow view is likely explained by his need to protect the turf of the FTC on the one hand, and his support for corporate speech rights on the other. Several briefs point out procedural and jurisdictional flaws in the case, suggesting that it isn’t even ripe for review. Kasky’s lawyer Paul Hoeber of San Francisco’s Bushnell, Caplan & Fielding argues the Court has no jurisdiction at all, because “no judgment of any kind has been entered against Nike.” Thus, he continues, Nike has no standing to appeal. The case went to the Supreme Court before a final judgment was made in California courts, notes Alan Morrison in a brief for Public Citizen filed on Kasky’s side. The case had been dismissed in lower courts and reinstated by the state supreme court, but Morrison says at no time has any court ruled on how California’s unfair-competition laws would apply to Nike’s statements. Morrison urges the Supreme Court to go no further than identifying one statement by Nike that is arguably false and sending the case back to California courts. “It won’t get rid of the case, but it can minimize what the Supreme Court says about it,” Morrison says. Nike lawyers counter that under well-established high court precedent, First Amendment cases like the one they are pressing can be reviewed quickly because of the special importance of free expression. But even if that were not the case, says Tribe, the California Supreme Court did reach a reviewable determination that the First Amendment did not protect Nike’s statements. “The idea of sending the case back to the California courts makes no sense at all,” says Tribe. “Those of Kasky’s amici who suggest that the California Supreme Court hasn’t been given an opportunity to pass on the whole range of First Amendment defenses that Nike might have are just plain wrong. They are barking up a tree that has already been burned to the ground.”

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