Nike, Inc. v. Kasky, 539 U.S. 654, 28 (2003)

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

Breyer, J., dissenting

regulation could suffer serious impediment if the Constitution limited the scope of private attorney general actions to circumstances where more purely commercial and less public-debate-oriented elements predominate. As the historical treatment of speech in the labor context shows, substantial government regulation can coexist with First Amendment protections designed to provide room for public debate. Compare, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575, 616-620 (1969) (upholding prohibition of employer comments on unionism containing threats or promises), with Thomas v. Collins, 323 U. S. 516, 531-532 (1945); Thornhill v. Alabama, 310 U. S. 88, 102 (1940).

These reasons convince me that it is likely, if not highly probable, that, if this Court were to reach the merits, it would hold that heightened scrutiny applies; that, under the circumstances here, California's delegation of enforcement authority to private attorneys general disproportionately burdens speech; and that the First Amendment consequently forbids it.

Returning to the procedural point at issue, I believe this discussion of the merits shows that not only will "reversal" of the California Supreme Court "on the federal issue" prove "preclusive of any further litigation on the relevant cause of action," Cox, 420 U. S., at 482-483, but also such "reversal" is a serious possibility. Whether we take the words of the third condition literally or consider the circumstances pragmatically, that condition is satisfied.


The fourth condition is that "a refusal immediately to review the state-court decision might seriously erode federal policy." Id., at 483. This condition is met because refusal immediately to review the state-court decision before us will "seriously erode" the federal constitutional policy in favor of free speech.


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