Nike, Inc. v. Kasky, 539 U.S. 654, 27 (2003)

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680

NIKE, INC. v. KASKY

Breyer, J., dissenting

a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm. Cf. Forsyth County v. Nationalist Movement, 505 U. S. 123, 134-135 (1992); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67-71 (1963).

That threat means a commercial speaker must take particular care—considerably more care than the speaker's noncommercial opponents—when speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification—even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speak-er's efforts to engage in public debate—particularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. See Gertz, 418 U. S., at 340; Time, 385 U. S., at 389. At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not. See First Nat. Bank, 435 U. S., at 785-786; see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995).

At the same time, it is difficult to see why California needs to permit such actions by private attorneys general—at least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate. The Federal Government regulates unfair competition and false advertising in the absence of such suits. 15 U. S. C. 41 et seq. As far as I can tell, California's delegation of the government's enforcement authority to private individuals is not traditional, and may be unique, Tr. of Oral Arg. 42. I do not see how "false advertising"

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