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The much-anticipated commercial speech ruling in Nike, Inc. v. Kasky, No. 02-575, fizzled Thursday when the U.S. Supreme Court announced that the California Supreme Court’s judgment in the case was not ripe for review and should be sent back for possible trial. The dispute over whether Nike is entitled to full First Amendment protection for its statements made in defense of its global labor practices during the late 1990s was viewed as a major test of the Court’s evolving commercial speech doctrine. The case could return to the high court after discovery and trial, neither of which occurred before the California Supreme Court issued its 2002 ruling against Nike. Consumer activist Marc Kasky had invoked California’s false advertising law to sue Nike for its statements — in letters to the editors, op-ed columns and public statements — rebutting charges of sweatshop labor. A state trial court dismissed his complaint, and the California Court of Appeal affirmed, holding that Nike’s statements were part of a public debate “within the core area of expression protected by the First Amendment.” The California Supreme Court reversed and remanded the case, upholding Kasky’s use of false advertising laws, but noting that the case is “still at a preliminary stage” and that no determination had been made about whether Nike’s statements were false. The high court, in its final ruling of the term, dismissed the Nike case as improvidently granted, an action that usually goes unexplained. But Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and David Souter, elaborated on the dismissal in a separate statement. Stevens said the lack of a final California judgment was a factor in the high court’s action. Nike had argued that the urgent nature of the First Amendment issue in the case warranted Supreme Court review under Cox Broadcasting v. Cohn, a 1975 decision that allows exceptions to the finality rule in First Amendment cases. But Stevens said the Court had decided the California ruling was still too preliminary for review. “Even if we were to decide the First Amendment issues presented to us today, more First Amendment issues might well remain in the case.” The case was too important and raised too many “novel” issues, Stevens said, to be decided prematurely. Stevens also said Kasky did not have standing to bring the suit because he never alleged that he had “any personal stake in the outcome of the case.” Justices Stephen Breyer and Sandra Day O’Connor dissented from the dismissal, arguing that there was no procedural obstacle to the Court deciding the case now — especially in light of the key First Amendment issues involved. They said the kind of action brought by Kasky poses “a serious burden on speech” and should be deterred. Breyer said the case should be reviewed under a legal standard of “heightened scrutiny.” Nike officials said they were heartened by sympathetic language in the writings in the case, but were disappointed that the issue had not been resolved. Discovery and trial preparations are now likely to resume in California courts. In the meantime, Nike General Counsel Jim Carter said, company officials are in a “real difficult circumstance” in determining how to explain Nike’s message on public issues without running afoul of the California court’s judgment. Alan Morrison, director of the Public Citizen Litigation Group, which supported Kasky, said the Court had done the right thing. “Despite Nike’s prediction that it will be forced to censor itself until this case is finally resolved, we doubt that Nike will shut down its public relations office,” said Morrison. “What we do expect is that Nike will be much more careful when it tries to influence consumers by making claims about how its treats its overseas workers.” Bruce Johnson, a partner at Davis Wright Tremaine in Seattle who authored a brief for press groups in the case, said Thursday, “These significant First Amendment issues remain very much alive, and all Americans should have the right to debate and discuss these significant matters of public concern.” In addition to the Nike case, and its landmark pronouncement on gay rights in Lawrence v. Texas, the Supreme Court handed down three other opinions Thursday. � Voting 7-2 in Wiggins v. Smith, 02-311, the Court found that a criminal defendant whose trial lawyer failed to conduct a reasonably thorough investigation into his social history was denied his Sixth Amendment right to effective assistance of counsel. Kevin Wiggins’ childhood was a horror of privation, physical torment, hunger, and sexual abuse. But his defense lawyers investigated few of the details of that childhood and presented none of it to the jury in Baltimore County, Md., that later sentenced Wiggins to death for first-degree murder, robbery, and two counts of theft. Writing for the majority, Justice O’Connor explained that the Court’s principal concern in deciding whether Wiggins’ defense lawyers exercised reasonable professional judgment “is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.” Before embarking on a strategy that excludes the presentation of mitigating evidence, the Supreme Court ruled, defense counsel must first investigate what mitigating evidence is available. The Court allowed Wiggins’ conviction to stand, but remanded the case for a new sentencing hearing. Justice Antonin Scalia penned a blistering dissent, which Justice Clarence Thomas joined, stating that the Court’s reasons for its interpretation of the facts “range from the incredible to the feeble.” “Today’s decision is extraordinary — even for our ‘death is different’ jurisprudence,” Scalia wrote. The opinion overturns a ruling of the 4th U.S. Circuit Court of Appeals. - Siobhan Roth � The justices narrowly struck down a California law that permits prosecutions for child sex abuse crimes for an indefinitely long time, if the prosecution is begun within a year of the victim’s report to police. In a 5-4 decision written by Justice Breyer, the Court held in Stogner v. California, No. 01-1757, that because the 1993 law revives possible cases for which the three-year statute of limitations had already expired, it violates the Constitution’s prohibition of ex post facto legislation. “We agree that the State’s interest in prosecuting child abuse cases is an important one,” Breyer wrote. “But there is also a predominating constitutional interest in forbidding the State to revive a long-forbidden prosecution.” Justices Stevens, O’Connor, Souter and Ginsburg joined the majority. Countering Justice Breyer’s lengthy excursion into British political and legal history in his majority opinion, Justice Anthony Kennedy wrote a dissent equally replete with 17th century precedent. “The California statute can be explained as motivated by legitimate concerns about the continuing suffering endured by the victims of childhood abuse,” Justice Kennedy wrote. - Jonathan Groner � A split Supreme Court on Thursday breathed new life into a Georgia Senate map that a lower court had struck down as violating the 1965 Voting Rights Act. Writing for the 5-4 majority in Georgia v. Ashcroft, No. 02-182, Justice O’Connor said the lower court should take another look at Georgia’s map under a revised framework, one that allowed states to redraw their legislative districts even if the result was the election of fewer minority lawmakers. But, O’Connor added, such maps would have to “achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters.” The decision was a major victory for Georgia Democrats, who argued that the Senate map they drew in 2001 — which split up black areas to spread reliable Democratic votes around the state — improved the lot of black voters. It also was a major clarification of � 5 of the Voting Rights Act, which requires states that have a history of discriminating against minorities to get approval from federal authorities before making any changes in voting procedures. - Jonathan Ringel

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