Nike, Inc. v. Kasky, 539 U.S. 654, 14 (2003)

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

Breyer, J., dissenting

After receiving 34 briefs on the merits (including 31 amicus briefs) and hearing oral argument, the Court dismisses the writ of certiorari, thereby refusing to decide the questions presented, at least for now. In my view, however, the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on. Under similar circumstances, the Court has found that failure to review an inter-locutory order entails "an inexcusable delay of the benefits [of appeal] Congress intended to grant." Mills v. Alabama, 384 U. S. 214, 217 (1966). I believe delay would be similarly wrong here. I would decide the questions presented, as we initially intended.


Article III's "case or controversy" requirement does not bar us from hearing this case. Article III requires a litigant to have "standing"—i. e., to show that he has suffered "injury in fact," that the injury is "fairly traceable" to actions of the opposing party, and that a favorable decision will likely redress the harm. Bennett v. Spear, 520 U. S. 154, 162 (1997) (internal quotation marks omitted). Kasky, the state-court plaintiff in this case, might indeed have had trouble meeting those requirements, for Kasky's complaint specifically states that Nike's statements did not harm Kasky personally. Lodging of Petitioners 4-5 (¶ 8). But Nike, the state-court defendant—not Kasky, the plaintiff—has brought the case to this Court. And Nike has standing to complain here of Kasky's actions.

These actions threaten Nike with "injury in fact." As a "private attorney general," Kasky is in effect enforcing a state law that threatens to discourage Nike's speech. See Cal. Bus. & Prof. Code Ann. 17204, 17535 (West 1997). This Court has often found that the enforcement of such a


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