Nike, Inc. v. Kasky, 539 U.S. 654, 12 (2003)

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Cite as: 539 U. S. 654 (2003)

Breyer, J., dissenting

a record may actually contribute in a positive way to the public debate. In all events, I am firmly convinced that the Court has wisely decided not to address the constitutional questions presented by the certiorari petition at this stage of the litigation.

Accordingly, I concur in the decision to dismiss the writ as improvidently granted.

Justice Kennedy, dissenting.

I dissent from the order dismissing the writ of certiorari as improvidently granted.

Justice Breyer, with whom Justice O'Connor joins, dissenting.

During the 1990's, human rights and labor groups, newspaper editorial writers, and others severely criticized the Nike corporation for its alleged involvement in disreputable labor practices abroad. See Lodging of Petitioners 7-8, 96-118, 127-162, 232-235, 272-273. This case focuses upon whether, and to what extent, the First Amendment protects certain efforts by Nike to respond—efforts that took the form of written communications in which Nike explained or denied many of the charges made.

The case arises under provisions of California law that authorize a private individual, acting as a "private attorney general," effectively to prosecute a business for unfair competition or false advertising. Cal. Bus. & Prof. Code Ann. 17200, 17204, 17500, 17535 (West 1997). The respondent, Marc Kasky, has claimed that Nike made false or misleading commercial statements. And he bases this claim upon statements that Nike made in nine specific documents, including press releases and letters to the editor of a newspaper, to institutional customers, and to representatives of nongovernmental organizations. Brief for Respondent 5.

The California Court of Appeal affirmed dismissal of Kasky's complaint without leave to amend on the ground that

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