Nike, Inc. v. Kasky, 539 U.S. 654, 20 (2003)

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

Breyer, J., dissenting

I concede that some other, possibly related federal constitutional issue might arise upon remand for trial. But some such likelihood is always present in ongoing litigation, particularly where, as in past First Amendment cases, this Court reviews interim state-court decisions regarding, for example, requests for a temporary injunction or a stay pending appeal, or (as here) denial of a motion to dismiss a complaint. E. g., National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam) (denial of a stay pending appeal); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971) (temporary injunction); Mills v. Alabama, 384 U. S. 214 (1966) (motion to dismiss).

Some such likelihood was present in Cox itself. The Cox plaintiff, the father of a rape victim, sued a newspaper in state court, asserting a right to damages under state law, which forbade publication of a rape victim's name. The trial court, believing that the statute imposed strict liability on the newspaper, granted summary judgment in favor of the victim. See Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 64, 200 S. E. 2d 127, 131 (1973), rev'd, 420 U. S. 469 (1975). The State Supreme Court affirmed in part and reversed in part. That court agreed with the plaintiff that state law provided a cause of action and that the cause of action was consistent with the First Amendment. 231 Ga., at 64, 200 S. E. 2d, at 131. However, the State Supreme Court disagreed about the standard of liability. Rather than strict liability, the standard, it suggested, was one of "wilful or negligent disregard for the fact that reasonable men would find the invasion highly offensive." Ibid. And it remanded the case for trial. The likelihood that further proceedings would address federal constitutional issues—concerning the relation between, for instance, the nature of the privacy invasion, the defendants' state of mind, and the First Amendment— would seem to have been far higher there than in any further proceedings here. Despite that likelihood, and because the State Supreme Court held in effect that the First Amend-


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