In 2003, the United States Supreme Court remanded (sent back to the lower courts) the case of Nike v. Kasky on procedural grounds, thus leaving open the debate on what exactly constitutes commercial speech. The case arose from Nike’s making of “allegedly” false and misleading statements when responding to critics of its overseas labor practices. The Nike Corporation claimed that its public statements defending allegations of “sweatshop” practices in their overseas operations should be accorded First Amendment protection. The plaintiff, Kasky, claimed that these statements were “commercial speech,” which can be regulated (in California, where the case was brought, commercial speech can be found to be false advertising if it is deceptive). Do you think Nike’s statements fall into the category of commercial speech or unfettered (pure) political speech? What does the lack of a definitive answer from the Supreme Court tells businesses about future public statements or claims by them regarding their operations? Do you believe the Supreme Court’s remand, without a decision on the merits, will have any type of “chilling effect” on businesses? Should companies' public-relations campaigns be protected under the First Amendment? Discuss and debate!
So first off, what exactly is commercial speech? According to Cornell’s University Legal Information Institute, the Supreme Court defines commercial speech as “speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.” Moreover, commercial speech such as advertisements is not entitled to full protection under the First Amendment, and is subject to regulation by the government.
Unlike commercial speech, political speech—defined by the Supreme Court as speech that deals with issues of