Nike, Inc. v. Kasky, 539 U.S. 654, 22 (2003)

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

Breyer, J., dissenting

third condition specifies that "reversal"—not some other disposition—will preclude "further litigation."

The significance of this point is made clear by our prior cases. In Cox, this Court found jurisdiction despite the fact that it might have chosen a middle First Amendment ground—perhaps, for example, precluding liability (for publication of a rape victim's name) where based on negligence, but not where based on malice. And such an intermediate ground, while producing a judgment that the State Supreme Court decision was erroneous, would have permitted the litigation to go forward. Cf. Brief for Appellants in Cox Broadcasting Corp. v. Cohn, O. T. 1973, No. 73-938, p. 68, n. 127 (arguing that " 'summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection' "). Similarly in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), the Court might have held that the Constitution permits a State to require a newspaper to carry a candidate's reply to an editorial—but only in certain circumstances—thereby potentially leaving a factual issue whether those circumstances applied. Cf. Brief for Appellant in Miami Herald Publishing Co. v. Tornillo, O. T. 1973, No. 73-797, pp. 26-27, and n. 60 (noting that the State Supreme Court based its decision in part on a conclusion, unsupported by record evidence, that control of mass media had become substantially concentrated). One can imagine similar intermediate possibilities in virtually every case in which the Court has found this condition satisfied, including those involving technical questions of statutory jurisdiction and venue, cf. ante, at 659 (Stevens, J., concurring).

Conceivably, one might argue that the third condition is not satisfied here despite literal compliance, see supra, at 674 and this page, on the ground that, from a pragmatic perspective, outright reversal is not a very realistic possibility. But that proposition simply is not so. In my view, the probabilities are precisely the contrary, and a true reversal is a highly realistic possibility.


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