Nike, Inc. v. Kasky, 539 U.S. 654, 30 (2003)

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

Breyer, J., dissenting

thereby limit the supply of relevant information available to those, such as journalists, who seek to keep the public informed about important public issues. Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 2-3; Brief for Chamber of Commerce of the United States of America as Amicus Curiae 10-12; Brief for ABC Inc. et al. as Amici Curiae 6-13; Brief for Pfizer Inc. as Amicus Curiae 10-14.

In sum, all four conditions are satisfied here. See supra, at 671. Hence, the California Supreme Court's judgment falls within the scope of the term "final" as it appears in 28 U. S. C. 1257(a), and no statute prevents us from deciding this case.


There is no strong prudential argument against deciding the questions presented. Compare ante, at 663-664 (Stevens, J., concurring), with Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). These constitutional questions are not easy ones, for they implicate both free speech and important forms of public regulation. But they arrive at the threshold of this case, asking whether the Constitution permits this private attorney general's lawsuit to go forward on the basis of the pleadings at hand. This threshold issue was vigorously contested and decided, adverse to Nike, below. Cf. Yee v. Escondido, 503 U. S. 519, 534-535 (1992). And further development of the record seems unlikely to make the questions presented any easier to decide later.

At the same time, waiting extracts a heavy First Amendment price. If this suit goes forward, both Nike and other potential speakers, out of reasonable caution or even an excess of caution, may censor their own expression well beyond what the law may constitutionally demand. See Time, 385 U. S., at 389; Gertz, 418 U. S., at 340. That is what a "chilling effect" means. It is present here.


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