Nike, Inc. v. Kasky, 539 U.S. 654, 26 (2003)

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

Breyer, J., dissenting

treating the regulations of speech at issue differently from regulations of purer forms of commercial speech, such as simple product advertisements, that we have reviewed in the past. And, where all three are present, I believe the First Amendment demands heightened scrutiny.

Second, I doubt that this particular instance of regulation (through use of private attorneys general) can survive heightened scrutiny, for there is no reasonable "fit" between the burden it imposes upon speech and the important governmental " 'interest served,' " Fox, supra, at 480. Rather, the burden imposed is disproportionate.

I do not deny that California's system of false advertising regulation—including its provision for private causes of action—furthers legitimate, traditional, and important public objectives. It helps to maintain an honest commercial marketplace. It thereby helps that marketplace better allocate private goods and services. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 765 (1976). It also helps citizens form "intelligent opinions as to how [the marketplace] ought to be regulated or altered." Ibid.

But a private "false advertising" action brought on behalf of the State, by one who has suffered no injury, threatens to impose a serious burden upon speech—at least if extended to encompass the type of speech at issue under the standards of liability that California law provides, see Cal. Bus. & Prof. Code Ann. 17200, 17500 (West 1997) (establishing regimes of strict liability, as well as liability for negligence); Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 181, 999 P. 2d 706, 717 (2000) (stating that California's unfair competition law imposes strict liability). The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute


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