Private Attorneys General and The First Amendment

The “private attorney general” is under fire again. It has been in and out of favor in the six decades since it was named, in part because it has come to signify so many different things. At its core, however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. The remedies sought in such actions tend to be correspondingly broad: rather than seeking redress for discrete injuries, private attorneys general typically request injunctive or other equitable relief aimed at altering the practices of large institutions. From school desegregation to fair housing, environmental management to consumer protection, the impact of private attorney general litigation is rarely confined to the parties in a given case. It is perhaps unsurprising, then, that the private attorney general has not been universally admired. While some regard it as critical to the effectuation of the public interest, others worry its authority may be abused by plaintiffs better likened to “extortionist[s].” Much of this disagreement concerns the wisdom of relying on private actors to implement broad public norms. Occasionally, however, arguments surface about the legality of doing so. The latest challenge to the private attorney general takes the latter form, and comes from a rather unlikely quarter: the First Amendment. The challenge arose in Nike v. Kasky. The case was ostensibly about the Supreme Court’s commercial speech doctrine, which generally permits the government to promote accuracy and integrity in the marketplace by prohibiting false advertising and other misleading commercial statements. A private plaintiff sued Nike under a California law prohibiting “unfair, deceptive, untrue or misleading advertising,” alleging that Nike had publicly misrepresented the working conditions in its subcontractors’ factories. The main question before the Supreme Court was whether Nike’s statements constituted “commercial” or “noncommercial” speech.