OPINION: Stuart Elliott in America

In Greek mythology, Nike is the goddess of victory. But in the real world, victory, or any kind of clear-cut decision, has eluded the giant marketer bearing that name.

The reason: the US Supreme Court, which had appeared ready to decide an important case centred on the constitutional free-speech rights of corporations, veered away at the last moment. The high court surprised and dismayed those on both sides of the issue on 26 June, the final day of its 2002-2003 term, by announcing it would dismiss the matter, declining to rule on procedural grounds.

It's as if a runner in a big race sponsored by Nike, wearing the swoosh-festooned footwear and apparel, pulled up just short of the finish line, muttered "fuhgeddaboudit" and trotted off to the locker room.

The Supreme Court "punted on its core constitutional duty to adjudicate First Amendment issues", The Wall Street Journal harrumphed, referring to the part of the Bill of Rights guaranteeing freedom of speech. The Public Relations Society of America panned the non-decision, describing its members as "devastated" and "extremely disappointed" because the justices "passed up an opportunity to render a galvanising decision on the issue".

So what, you're asking, is the issue? It hinges on the peculiar twilight zone in which dwells commercial speech in America. Sponsored speech such as advertising, if deemed accurate, is typically protected by the Constitution, though not as zealously as public, non-commercial speech is. Entirely unprotected, however, and subject to liability, is commercial speech that's judged false or misleading.

The Nike case, intriguingly, involves something that in Nike-speak may be termed half-sneaker, half-dress shoe. The company, responding to a growing crescendo of complaints about the alleged sweatshop conditions in the factories producing its products, began replying to those vociferous critics through press releases and other public relations measures, op-ed articles and letters published in newspapers and postings on its website.

In 1998, Marc Kasky, an environmental activist whom the pro-business Journal labelled "a California anti-globalisation nut", sued Nike under that state's consumer protection laws, asserting the company's efforts amounted to false advertising. His case never has gone to trial; after the California Supreme Court ruled that it could proceed, Nike, adamant it was engaged in protected non-commercial speech, appealed the verdict to the Supreme Court, which accepted the case but now has signalled it was wrong to do so.

The high court's dismissal means that Kasky's suit returns to California for trial, an outcome that most of the justices indicated was appropriate because they wanted to wait to weigh in until after there's "a necessity of deciding it", as John Paul Stevens wrote in his opinion.

But three justices disagreed with the refusal, with one, Stephen G Breyer, warning that "waiting extracts a heavy First Amendment price" because of the impact of the uncertainty and limbo in which Nike finds itself.

He also sided with Nike's contention that its speech ought to be protected because it mixed elements of commercial and public discourse in a non-advertising forum.

Indeed, Stevens and two other justices called Nike's utterings "a blending of commercial speech and debate on issues of public importance", auguring a potential ruling in Nike's favour if and when the case comes back to Washington.