Nike, Inc. v. Kasky, 539 U.S. 654, 15 (2003)

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Breyer, J., dissenting

law works constitutional injury even if enforcement proceedings are not complete—indeed, even if enforcement is no more than a future threat. See, e. g., Houston v. Hill, 482 U. S. 451, 459, n. 7 (1987) (standing where there is " 'a genuine threat of enforcement' " against future speech); Steffel v. Thompson, 415 U. S. 452, 459 (1974) (same). Cf. First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 785, n. 21 (1978) (The "burden and expense of litigating [an] issue" itself can "unduly impinge on the exercise of the constitutional right"); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 52-53 (1971) (plurality opinion) ("The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough"). And a threat of a civil action, like the threat of a criminal action, can chill speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 278 (1964) ("Plainly the Alabama law of civil libel is 'a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law' ").

Here, of course, an action to enforce California's laws— laws that discourage certain kinds of speech—amounts to more than just a genuine, future threat. It is a present real-ity—one that discourages Nike from engaging in speech. It thereby creates "injury in fact." Supra, at 667. Further, that injury is directly "traceable" to Kasky's pursuit of this lawsuit. And this Court's decision, if favorable to Nike, can "redress" that injury. Ibid.

Since Nike, not Kasky, now seeks to bring this case to federal court, why should Kasky's standing problems make a critical difference? In ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989), this Court specified that a defendant with standing may complain of an adverse state-court judgment, even if the other party—the party who brought the suit in state court and obtained that judgment—would have lacked standing to bring a case in federal court. See also Virginia v. Hicks, ante, at 120-121.

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