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Nike v. Kasky and the Running-But-Going-Nowhere Commercial Speech Debate


By

Samuel A. Terilli, J.D.
Assistant Professor, School of Communication, University of Miami
Partner, Ford & Harrison LLP
100 S.E. 2d Street, Suite 4500,
Miami, FL 33131
                        (305) 284-8451   [log in to unmask]





Submitted To:  Law Division; AEJMC.


Nike v. Kasky and the Running-But-Going-Nowhere Commercial Speech Debate
Submitted To:  AEJMC; Law Division.
                                Abstract
        The lawsuit filed by Marc Kasky against Nike illustrates the dangers to
free expression posed by Supreme Court decisions defining "commercial
speech" as a category deserving of some, but not full, first amendment
protection.  The  commercial speech doctrine should be replaced with the
approach used by the Court to permit prosecutions of acts with the
requisite intent to commit the underlying offense, even if the act was
accomplished, in whole or in part, through expression.




INTRODUCTION
As lawyers, scholars, advertisers, and public relations specialists waited
in June 2003 for the Supreme Court in Nike v. Kasky[1] to clarify, dispose
of, or further confuse commercial speech as a doctrine or category of
speech under the First Amendment, the Court dismissed certiorari as
improvidently granted.  The central issue in the case could not have
presented a stronger clash of values:  in one corner, the Court had Nike
and its advertising and public relations campaign responding to critics of
its labor and business practices and in the other the Court had Mr. Kasky's
lawsuit alleging Nike's public relations responses amounted to false and
misleading attempts to sway consumers of running shoes and thus were
grounds under California law grounds for damages, court-ordered corrective
advertising and other remedies.   Had Mr. Kasky been a candidate for
political office and Nike his opponent, the case would have clearly run
afoul of the First Amendment, but Mr. Kasky attacked Nike's speech as
"commercial speech", a form of expression afforded diluted First Amendment
protection by the courts.  Mr. Kasky argued Nike was just selling
shoes.  Nike argued it was engaging in debate ­ a public debate begun by
its critics.  Not one advertisement at issue in the case actually offered
any items for sale.
    By sending the case back to the California state courts, the Supreme
Court left unresolved the question whether Nike, as a commercial actor,
forfeited any right to engage in public debate regarding its business
practices without risking state-imposed or facilitated punishment of
expression.  Nike ultimately settled in September 2003 by agreeing to
contribute $1.5 million to Washington, D. C., based Fair Labor Association
(FLA) for programs promoting education and economic opportunity among
workers.  In return, Mr. Kasky and his supporters dropped the case.  Some
were dismayed that this left the legal issues unresolved by the
courts.  Others felt the payment was no more than a cynical ploy by Nike
because the company and other manufacturers hold several seats on, and some
degree of control over, the FLA board of directors.  Still others saw it as
simply a means to stem legal expenses that had to be mounting for both sides.
   Whatever the explanation behind or evaluation of the settlement, the
entire episode underscored the need for people and firms involved in
communication, including journalists and not just advertisers and public
relations specialists, to be wary of attempts to categorize speech under
the First Amendment.  Confusion among the courts, uncertainty in the
marketplace and the fact that there was litigation such as Nike v. Kasky
demonstrate the absence of any meaningful consensus regarding what is or is
not commercial speech or how it ought to be treated.  In the Nike
litigation, Mr. Kasky in effect attacked in court Nike's speech by arguing
if fell into a disfavored category (i.e., commercial speech) and thus could
be suppressed or altered by a litigant and court.
Speech by businesses interested in selling products or services is a vital
part of society.  The Supreme Court has held that state attempts to limit
access to truthful commercial information may be nothing more than thinly
veiled efforts to limit informed public debate and decision-making
regarding such recurring concerns as the prices of prescription
medicines.   Viewed from this perspective, a law prohibiting the
advertising of retail prescription drug prices by licensed pharmacists had
been held to violate the First Amendment.
        A commitment to a wide-open and robust debate is at best a limited
commitment if it is subject to exceptions providing that certain types of
speech are less deserving of constitutional protection.  Categorization of
speech is quite different from a rule that subjects an act accompanied by
or accomplished through expression to criminal or administrative
sanction.  The difference is one of meaningful emphasis.  If advertising or
public relations is relegated to a doctrinal ghetto, then the courts will
be used to suppress expression by commercial speakers when they oppose
dominant or fashionable points of view, or simply the well funded and
litigious members of society.  Public debate will be thus constricted.
        Commercial speech as a category  has become a linguistic quagmire for the
courts.  On one end of the spectrum judges see issue-oriented advertising
as generally closer to what the First Amendment is thought to protect.  On
the other end, they see the mere communication of prices or terms as
generally closer to a commercial transaction that the state may
regulate.  In between there is soft, uncertain ground and the inevitable
multi-part balancing tests constructed by courts to attempt to bring some
order to the inherently disordered nature of cases and life.   Why
bother?  If the courts were to place the expressive elements out of the
reach of a legislature, would the regulatory power of the state be any
weaker?  The sale of shoes through deceptive advertising could still be
subject to sanction.  Bait and switch in the form of the advertising of
misleading prices could still be a crime.  The sale of illegal products or
services could still be prosecuted.  Billboards defiling the countryside
could still be zoned and regulated.  The burning of giant crosses alongside
highways to intimidate bystanders could still subject one to
arrest.  Health claims ascribed to various foods or drugs could still be
regulated if unfounded, deceptive or false.  The basis for such regulation
would be the government's police power to regulate the sale of food and
drugs and not any doctrine of speech.  Each of these regulatory actions
could be taken without attempting to suppress or punish the expression.  In
fact, the expression in whatever form might become evidence, but not itself
a crime.  The act punished would be the sale of the offending product, not
the placement of the advertisement.
        The difference again is one of emphasis or perspective.  If there is not
some second-class category of speech that has been given less protection,
then the persons or entities seeking to sanction some action will have to
identify an action and not merely the words, pictures or other form of
expression.  They will have to think harder in some cases, and perhaps even
abandon a few.  Mr. Kasky, incidentally, did not allege that he or any
particular person had actually been defrauded by Nike in the sale or
purchase of any pair of shoes.  Thus, the litigation was about speech and
not about fraudulent commercial transactions and it was, therefore, about
the marketplace of ideas, not the marketplace for sneakers.  The commercial
categorization of Nike's speech, however, obscured that fact and
demonstrated that continued reference to "commercial speech" is
ill-advised, unhelpful and even dangerous as a matter of First Amendment
law.  The analysis ought to begin, as it does in expressive conduct cases
already, with a fundamental, content-neutral question that is concerned not
with the speech or action, but with the law or regulation at issue:  is the
law or regulation aimed at the suppression of expression?
This article examines commercial speech in four sections.  First, the
article surveys the literature regarding commercial speech, which is hardly
uniform in its acceptance or criticism of the doctrine, but reveals a basic
lack of consensus and thus a fundamental problem with commercial speech as
a useful tool for adjudicating cases.  Second, the article examines the
roots of commercial speech in key U.S. Supreme Court decisions since
1942.  These roots illuminate the problem as well as the solution.  Third,
the article examines the particulars of the Nike case, the arguments of the
parties, and the mechanics of the California statute as an example of the
danger of acceptance of commercial speech as a category.  Fourth, the
article examines the recent cross-burning and telemarketing cases as
illustrations of the Court's approach to symbolic and speech-laden conduct
problems ­ an approach that obviates the need for commercial speech as a
doctrine or category of speech.  Finally, the article makes some
observations and conclusions regarding potential consequences if the courts
persist in categorizing some speech as commercial and therefore deserving
of less protection: the other shoes that might drop.
THE LITERATURE REGARDING COMMERCIAL SPEECH REVEALS A DOCTRINE IN DISARRAY.
As a result of the historical roots of commercial speech as a category of
speech, courts have decided cases based on an assumption that there is a
coherent distinction between speech that appears to have some nexus with
commerce and other speech, be it concerned with politics, art, religion or
any other subject.
Several articles have explored the historical roots of commercial speech
and analyzed various practical and doctrinal problems in the judicial
decisions on the subject of commercial speech.[2]  The doctrine, if one can
truly call it that, has received increasingly thorough and
thought-provoking examinations as courts have struggled with its definition
and tests.   These critiques are hardly uniform in analysis or results, but
demonstrate nonetheless the impracticality, uncertainty, and risks
associated with the doctrine ­ by implication or directly.[3]   A survey of
these critiques underscores the difficulties and risks presented by the
doctrine.  Some are troubled because protection for commercial speech may
overextend the First Amendment into areas that government ought to be
allowed to regulate.  Others are more taken with complicated tests,
matrices, and linguistic formulae that only a court with several law clerks
could love and that are often useless in guiding the day-to-day decisions
of advertisers and public relations specialists.  Several argue for more
liberal protection of commercial speech.  The undeniable fact, however, is
that there is no consensus regarding the doctrine and its application and
thus there is confusion and arguably a doctrine so hopelessly muddled that
it is of no use, or there is no doctrine at all.
Professor Vince Blasi in The Pathological Perspective And the First
Amendment addressed these issues directly in making his insightful argument
that First Amendment cases should be adjudicated with an eye to
strengthening the core protections of the amendment for those inevitable
periods of intolerance. [4] In assessing the advantages and disadvantages
posed by the doctrine at that point in time, Professor Blasi concluded that
the Court's "middle-of-the-road" attempts to examine the content of
advertising to determine if it would mislead audiences even when not
inaccurate in any objective sense posed the danger of "legitimation of an
ad hoc balancing methodology" to benefits and costs of speech.[5]  Blasi
concludes, therefore, that there are strategic reasons to exclude
commercial speech from first amendment protection and these include
avoiding the difficult, content-based line-drawing problems that naturally
arise in such cases with the middle-of-the-road, current approach and
avoiding the frustration or devaluation of the regulatory purposes behind
many laws regarding advertising that would result if commercial speech were
granted full first amendment protection.  This choice or dilemma as
presented by Blasi is the heart of issue.  This article argues for the
latter approach with an explanation and approach that will protect
legitimate regulatory purposes.
FROM HANDBILLS TO BROADCASTING:  THE DEVELOPMENT AND MUDDLING OF COMMERCIAL
SPEECH AS A DOCTRINE.
If the root of the current confusion over and preoccupation with the
concept of speech defined by its commercial character is the 1942 decision
in Valentine v. Chrestensen[6], the  trunk is a series of cases including
Virginia State Board of Pharmacy v. Virginia Citizens Council, Inc.[7], and
the dense, nearly opaque canopy includes Central Hudson Gas & Electric
Corp. v.  Public Service Commission and subsequent cases that examine, and
further confuse,  the meaning of the Central Hudson test.[8]
The Valentine case arose when Mr.Chrestensen docked his retired Navy
submarine at a state-owned pier in New York City and started passing out
handbills to attract people to his tours of the attraction, which he
operated, as the Court noted, "for profit."[9]  City police advised him
that the distribution of the handbills would violate the City's Sanitation
Code, "which forbids distribution in the streets of commercial and business
advertising matter," and that he was free to distribute "handbills solely
devoted to 'information or a public protest.'" [10]  Mr. Chrestensen
responded by reprinting the handbills to protest, on one side of the
handbill, the city's refusal to provide him with space for the submarine at
a city pier and to promote his tours, without any listing of the admission
fee, on the other side.
City police were not deterred and restrained Mr. Chrestensen from
distributing the handbills.  Mr. Chrestensen then sued the city for an
injunction.  The Supreme Court upheld the regulation and disposed of Mr.
Chrestensen's revised handbills as a transparent attempt to evade the
city's ordinance limiting commercial activity in public streets.  The Court
further explained that though government may regulate expression in streets
as long as the regulation does not unduly burden speakers, "the
Constitution imposes no such restraint on government as respects purely
commercial advertising."[11] Although this case is often cited as the root
of the commercial speech doctrine, it is more appropriately understood as
simply a court looking at a commercial actor (the tour operator) and
recognizing his handbills for what they really were ­ a subterfuge intended
to evade the legitimate regulatory power of the city.
Two subsequent cases involving advertising presented the court with
advertisements in which the commercial transactions at issue were at best
incidental to the communication of issue-oriented information generally and
thus the court in those cases had no trouble protecting the speech under
the first amendment.  In New York Times v. Sullivan[12], the fact that the
allegedly offending false statements appeared in an advertisement purchased
by the speakers from the newspaper was no impediment to application of the
first amendment.  In Bigelow v. Virginia[13] the advertisement that
communicated to readers in Virginia, a state in which abortions were not
legal, the availability of legal abortions in New York,  the court also had
no trouble sidestepping the commercial nature of the obvious offer of such
medical services because the content of the advertisement was deemed a
matter of great public interest and because Virginia had no legitimate
interest in prohibiting the publication of information regarding activities
outside its borders in jurisdictions in which such activities were legal.
The root of the problem with commercial speech as a doctrine or as a
category of speech is that it arose in cases in which the speech or the
communicated information at issue went beyond that which would have merely
constituted an offer or commercial transaction.  In other words, the
commercial speech doctrine essentially arose in cases that did not involve
speech limited to commercial transactions.   Not until Virginia State Board
of Pharmacy v. Virginia Citizens Consumer Council, Inc.[14], did the court
confront an advertisement limited to an offer to sell a product at a
published price and lacking any obvious political overtones. A Virginia
statute prohibited the advertising of prescription drug prices by licensed
pharmacists.  The state banned this form of advertising because it feared
that price competition would distract pharmacists, lessen the stature of
the profession and ultimately injure consumers.  As Justice Blackmun
stated, writing for the Court:
Here, in contrast [to Bigelow], the question whether there is a First
Amendment exception for "commercial speech" is squarely before us.  Our
pharmacist does not wish to editorialize on any subject, cultural,
philosophical, or litical.  He does not wish to report any particularly
newsworthy fact, or to make generalized observations even about commercial
matters.  The 'idea' he wishes to communicate is simply this:  'I will sell
you the X prescription drug at the Y price.'  Our question then is whether
this communication is wholly outside the protection of the First Amendment.[15]
The Court answered the question by striking the statute and noting the keen
interest of consumers in the free flow of commercial information, including
prices for prescriptions.  Thus, with a focus on the interest of readers or
users, the Court acknowledged that even information communicated solely for
the purpose of offering a commercial transaction has some level of
protection under the first amendment as commercial speech.
In Virginia Board of Pharmacy, the regulation of the communication of
accurate prices for legal products or services was deemed not a legitimate
exercise of the state's police power, but an attempt to squelch competition
and squelch public discourse.  Just as the attempt to shoehorn a public
protest into handbills promoting tours of a submarine failed as pretext in
Valentine, the attempt to use public safety to shore-up the restriction of
public discourse regarding prescription drug prices failed in Virginia
Board of Pharmacy.  The invalidated regulation in Virginia Board of
Pharmacy was a restriction aimed not solely at a commercial transaction
(pharmacists could sell their products at any price), but at the
communication of such information and thus at the public discourse and
competition.  Thus, this case was not about a commercial transaction that
the state could regulate to protect consumers from deception or fraud or
some other injury.
    Although the Court went to some lengths to distinguish these facts from
an advertisement in which the speaker made generalized statements about
commercial matters (arguably the Nike case), which by implication would
have been clearly protected by the First Amendment, the Court in effect
recognized that even the mere communication of price was to some degree
speech.  The Court reached for the First Amendment as a basis to strike
down a statute it found to be anti-competitive and repugnant as a matter of
public policy. Unfortunately, by 1976 a lexicon had taken root in the
courts that created a new class of speech called commercial speech and
treated it as a hybrid somewhere between pure speech, whatever that is, and
mere commerce, but did not limit it to the communication of price and
offers alone.  Had that distinction been made clearly, then these rulings
would have constituted a step forward in that they extended at least some
degree of protection to what might otherwise be considered a transaction
only.  Instead, commercial speech became a catch-all that appeared to
include other communications and ultimately contracted protection for
certain utterances that had a nexus with commerce, but were not
advertisements offering to sell products or services.    The entire
definition of commercial speech was thus flawed and never necessary or
helpful as a matter of doctrine.  First Amendment jurisprudence would have
been better off had the Court found some other basis for striking the
statute in Virginia Board of Pharmacy or had the holding been clear in its
extension of constitutional protection to what the Court in Chrestensen
called "purely commercial advertising."[16]
The flaws and doctrinal superfluity became all too evident with the Supreme
Court's decision in Central Hudson Gas & Electric Corp. v. Public Service
Commission.[17]  In this case, various regulated electric utilities
promoted the use of electricity in advertisements and New York public
service commission ordered the utilities to discontinue the advertisements
because the Commission deemed the messages contrary to its energy
conservation policies.  In Central Hudson, the Court articulated a
four-part test that asked first if the advertising was deceptive, false or
for an illegal product or service,  second if the asserted governmental
interest behind the regulation was substantial, third if the regulation
directly served that substantial interest, and finally if the regulation
was narrowly tailored to that interest.   The Commission did not claim the
advertising was false, misleading, or for an illegal activity.  The Court
found the state regulation passed muster under the second and third prongs
of the test (because the Commission had a substantial interest in energy
conservation and believed the advertisements would increase consumption),
but the Court held the regulation failed as insufficiently tailored because
the ban on advertising could be applied even to advertising for
energy-efficient electrical appliances or devices.
With Central Hudson commercial speech as a category of speech grew into a
full thicket.   Justice Powell, writing for Court, began with an assumption
about commercial speech that is unworkable, meaningless, and an invitation
to judicial assessments of the interests behind all speech:
The Commission's order restricts only commercial speech, that is,
expression related solely to the economic interests of the speaker and its
audience.  [Citations Omitted]
He then proceeded to employ commonsense from the world of commerce to the
world of jurisprudence:
[O]ur decisions have recognized "the 'commonsense' distinction between
speech proposing a commercial transaction, which occurs in an area
traditionally subject to governmental regulation, and other varieties of
speech." [Citations Omitted]  The Constitution therefore accords a lesser
protection to commercial speech than to other constitutionally guaranteed
expression.[18]
The flaw in the reasoning stems from the fact that the first paragraph
above does not logically follow from or to the second.  Even though the
utilities in Central Hudson were promoting the use of electricity, arguably
inviting consumers to transact commerce, the Court did not conclude the
advertisements were offers or inducements, but viewed the advertisements as
speech.   The Court may have been right about that and the utilities may
have been engaged in speech.  If a public interest or environmental
organization had published advertisements encouraging the use of
electricity as opposed to natural gas out of some correct or incorrect
view, it is hard to imagine any court seriously enforcing a state
regulation prohibiting such speech.  The matter would have been left to the
market and to responses from opposing points of view.  If, however, the
utilities falsely or deceptively offered for sale or promoted electricity
or appliances, it is easy to imagine courts enforcing state laws against
deceptive commercial practices.   Or, if the status of the speakers as
public utilities subject to public regulation determined the ability of the
state to regulate, then the result could be more easily rationalized.  The
fact is the state was regulating the content of the advertisements of the
utilities and the purpose was the control of expression, not the regulation
of commerce.
        The communications at issue were either speech or they were commerce.  At
times that line may be a bit unclear, but doctrinally it is one or the
other.    If the advertisements were deemed speech and if the advertisers
were not deemed state actors subject to state direction of content, then it
is hard to ignore the fact that the regulations at issue were old-fashioned
state attempts to control the content of speech. Justice Powell's attempt
to straddle the fence by characterizing these particular advertisements as
forms of speech related only to the economic interests of the utilities and
then to create a test to impose some limits on the regulation of speech
characterized as commercial led to more confusion with regard to what is or
is not protected and ultimately led to anomalous results.[19]
Few results could be considered more anomalous than that in Posadas v. De
Puerto Rico Associates v. Tourism Company of Puerto Rico. [20]    In
Posadas the Court laid waste to any pretense of meaning in its Central
Hudson test by ruling that Puerto Rico could ban truthful advertising
addressed to residents of Puerto Rico for gambling in casinos operating
legally in Puerto Rico.  The Court reasoned that Puerto Rico had a
substantial governmental interest in reducing local residents' demand for
gambling as the casinos profited from tourists.  According to the Court,
the case involved a "restriction of pure commercial speech which does 'no
more than propose a commercial transaction…."[21]
   Because gambling was associated with crime and immorality and because the
local government had the power to ban gambling in that jurisdiction, the
Court held that Puerto Rico could exercise the lesser, included power to
ban the advertising promoting gambling.  Consequently, paternalism was
allowed to reign supreme as the Court allowed local officials to deny
residents truthful information about a service the legislature made legal
in that same jurisdiction, thus suppressing expression without identifying
any underlying act the legislature made illegal, while allowing different
truthful speech about the same service, provided it was aimed at a
different audience.  The logic behind the decision in Virginia Board of
Pharmacy (e.g., regarding that state's regulation of truthful
advertisements regarding prices within the state) was missing in
action.  By dismissively categorizing these advertisements as commercial
speech, the Court countenanced blatant viewpoint and audience-driven
discrimination among truthful speakers regarding a legal service.
In Board of Trustees, State University of New York v. Fox,[22]  the Court
again allowed conduct to be confused with speech.  The Fox case arose in
the context of a state regulation prohibiting commercial activity on state
university campuses (i.e., a demonstration of house wares in a dormitory
room).   This case should have been resolved solely on the basis of a
state's power to regulate commercial activity (as opposed to speech) in
state-owned and operated facilities. The company in the Fox case, AFS, and
several students sought a declaratory judgment and injunctive relief.  The
students also argued a First Amendment right to receive information.  Of
course, receipt of information was not the underlying issue, but commercial
activity in a state-operated dormitory was, or should have been.  Later
cases in the 1990s focused on the presence or absence of empirical evidence
of satisfaction of the Central Hudson test, essentially the prongs
requiring actual advancement of the government's claimed substantial
interest and the absence of overbreadth, but did nothing to clarify the
inherent ambiguities or contradictions in the use of commercial speech as a
category of speech.[23]
In 44 Liquormart, Inc., v. Rhode Island[24], the Court in a maze of
opinions struck Rhode Island's ban on price advertising for alcoholic
beverages, further muddled the Central Hudson test, and all but overruled
the decision in Posadas.   The justices agreed that the Twenty-first
Amendment (repealing Prohibition, but leaving to the states the power to
prohibit commerce in alcoholic beverages) did not save the state's ban and
that the state did not carry its heavy burden to otherwise justify a
complete ban on advertising prices.  The justices did not agree, however,
on a clear definition of that burden.
   At least four justices (O'Connor, Rehnquist, Souter, and Breyer) appear
committed to the Central Hudson test.  They struck Rhode Island's ban under
the test's fourth prong, as relaxed in Fox, supra, (requiring a reasonable
fit between the state's interest, reducing consumption, and the method
adopted by the state).  They relied on the existence of other means (e.g.,
increasing sales taxes) that would more directly serve the interest without
banning truthful speech and they unconvincingly distinguished Posadas,
while noting that in subsequent cases the Court has examined more closely
the state's professed goal behind limitations of such forms of
speech.[25]  Joined by a shifting coalition of sometimes two, sometimes
three justices, Justice Stevens argued that special dangers flowed from
complete bans on truthful, non-misleading commercial messages and required
special care and a more careful review.  Stevens, joined by Kennedy,
Thomas, and Ginsburg, questioned the holding in Posadas. [26]  He
distinguished the case in part, but also stated that "[t]he reasoning in
Posadas does support the State's argument, but, on reflection, we are now
persuaded that Posadas erroneously performed the First Amendment
analysis."[27]  Justice Scalia concurred in the judgment, opined that he
would defer to historically accepted practices (at least if the issue is
not the suppression of political ideas) and he declined to declare the
Central Hudson test wrong or even directly reach the issue.[28]  Finally,
Justice Thomas, though he joined portions of the Stevens opinion, added
that it is per se illegitimate for a government to keep legal users of a
product or service ill-informed in order to manipulate the
market.  Consequently, Thomas concluded it does not matter whether the
speech is commercial or not, the Central Hudson test was inapplicable and
Rhode Island's ban unconstitutional.[29]
With just a bit more clarity, the Court in Greater New Orleans Broadcasting
Association v. United States, held that the same prohibition of lottery or
gambling broadcast advertisements upheld in Edge Broadcasting, supra,  with
regard to the North Carolina radio stations could not be constitutionally
applied to advertisements for lawful gambling aired by stations in a state
(i.e.,  Louisiana) in which the gambling was legal.[30]  The government had
prevailed below in both the district court and the Court of Appeal for the
Fifth Circuit under the Central Hudson test.[31]  Essentially, the lower
courts held that the federal statute and related FCC regulations
served  the governmental interest of restricting gambling and minimizing
social ills historically associated with gambling by regulating interstate
broadcasting that is beyond the power of individual states.[32]   As noted
by the Supreme Court, the majority opinion in the Fifth Circuit relied
heavily on Posadas and reached its decision before the 44 Liquormart
decision.[33]   From that vantage point, the Court declined to adopt a test
more stringent than the Central Hudson test, but held the third and fourth
prongs of the test doomed the state's ban.  Thus, the court focused on
whether the ban directly advanced the asserted interest and whether it was
narrowly tailored.  With the existence of regulations that exempted
state-operated casinos and tribal casinos, among others, the Court had no
trouble concluding the ban of truthful advertising of commercial casinos
was unconstitutional.
Meaningful application of the third and fourth prongs of the Central Hudson
test continued in Lorillard Tobacco Co. v. Reilly.[34]  At issue in
Lorillard were Massachusetts' regulations of restricting the sale,
advertising and labeling of tobacco products.  Aside from holding that
various advertising regulations were preempted by federal law, the Court
focused on the First Amendment and under the third and fourth prongs struck
down all regulations not related to the actual sale of tobacco
products.  With regard to outdoor advertising restrictions, the Court held
the state regulation failed the fourth prong because the broad sweep of the
minimum distances (prohibition within 1,000 feet of a school or playground)
and the range of potentially covered communications (possibly oral and
in-store materials as well as outdoor billboards)demonstrated a lack of
narrow tailoring.  With regard to the regulations prohibiting point-of-sale
tobacco advertising lower than five feet from the floor of any retail
establishment within 1,000 feet of a school or playground, the Court held
the regulations failed the third and fourth prongs of the test.[35]
The concurring opinions (and those dissenting in part) in Lorillard
demonstrated again the unsettled understanding of commercial speech and the
Central Hudson test. Justice Kennedy, joined by Justice Scalia, filed a
concurrence in which he expressed continuing concern regarding the Central
Hudson test and whether it provided sufficient protection for truthful,
non-misleading commercial speech.[36]  Justice Thomas in his concurrence
echoed his argument in 44 Liquormart that government restrictions of
truthful speech to suppress ideas required strict scrutiny whether the
speech is characterized as commercial or otherwise.[37]  Justice Stevens,
joined by Justices Ginsburg and Breyer, concurred in part and dissented in
part.  These justices disagreed with the majority on the federal preemption
issue, while agreeing with the First Amendment analysis generally, though
they would have remanded the case for further proceedings and development
of the factual issues (i.e., a trial).  Justice Souter also concurred in
part and dissented in part, agreeing with Stevens on the preemption issue
and need for a trial on the question of the 1,000-foot limit regarding
advertising.[38]
The search for a workable definition of commercial speech and test to be
applied to the regulation thereof has led to the current state of affairs
in which a manufacturing company was subjected to a brutal, though perhaps
deserved, public relations campaign against the company, and then when it
responded  with an opposing point of view found itself sued by someone who
wanted to suppress the company's point of view  under a state law that
functions as if the First Amendment had absolutely no relevance.  Such is
the Nike case and the tyranny created by laws that sidestep the First
Amendment by targeting a category of speech that is deemed less protected
because it relates to commerce though is not itself part of a commercial
transaction.
NIKE AND THE REGULATION OF CONTENT THROUGH COMMERCIAL LITIGATION.
The facts of the Nike case are fairly straightforward.  Nike is one of the
leading manufacturer's of athletic shoes (i.e., sneakers), clothing and
equipment.  The company's print and broadcast advertising campaigns are as
ubiquitous as the American flag itself.  One of the company's slogans,
"just do it",  has slipped into the popular lexicon of everyone from kids
on basketball courts to corporate consultants.  As with many contemporary
manufacturers, foreign production and contractors are critical components
in the Nike operation.  In fact, in its brief before the U. S. Supreme
Court, the company stated that its "goods are produced at approximately 900
factories in 51 countries with more than 600,000 employees."[39]
Beginning in 1995 and 1996 Nike found itself the target of various
allegations criticizing the working conditions, compensation, worker safety
and atmosphere in various Nike-contracted facilities in Southeast
Asia.[40]   As stated by Mr. Kasky in his brief before the California
Supreme Court:  "[t]he criticism of Nike's labor practices came from many
quarters: Network-television documentaries, columnists in national and
local newspapers, consumer groups, labor unions, human-rights groups and
nongovernmental organizations, church groups, Internet websites, college
students and faculty, and demonstrators in the streets."[41]
Large labor and environmental organizations accused the company of
complicity in what amounted to slave-labor and in profiting through the use
of sweatshops in poor Third World countries.[42]  Newspaper and magazine
columnists heaped scorn upon the company for employing child labor and
oppressing local populations. The allegations were reported by the news
media and resulted in demands for legislative action and, in some cases,
boycotts of Nike products.[43]  Even the Doonesbury comic strip got into
the act.  To this day, some people question the morality of Nike and its
employment or contracting practices, though former United Nations
Ambassador Andrew Young, who conducted a review commissioned by Nike,
issued a report  that concluded the accusations were largely false.[44]
True or false, slave or free, employed or contracted ­ though all remain
valid and interesting issues, none was truly relevant to the issue that
briefly went to the Supreme Court.  What was relevant was the fact that
Nike purchased in various media a series of paid "editorial advertisements"
or issue-oriented advertisements to publicize Young's report and respond to
the accusations.  Nike executives and officials also issued press releases,
published op-ed columns and wrote letters ­ to editors, to universities and
to others ­ all in defense of the company's practices.  All of these
communications conveyed Nike's opinion that Nike acted morally and took
adequate measures to ensure that employees of contracted factories were
paid and treated well and in accordance with local laws.  The
communications also argued that through its investments Nike produced
economic and political benefits for workers in these foreign
countries.  The communications did not advertise or offer for sale
particular products.[45]
Marc Kasky filed his suit against Nike, Inc., in San Francisco Superior
Court on April 20, 1998 and alleged in his complaint that Nike made false
representations in advertisements, promotional campaigns, public statements
and marketing materials about the working conditions in its contracted
factories in Asia and did so for the purpose of inducing consumers to buy
its products.[46]  Mr. Kasky apparently did not, as a consumer, read the
advertisements as offers for the sale of any products and acknowledged that
he was neither induced by the advertisements to purchase any Nike products
and was not in any manner himself injured by the advertisements.   Rather,
as a citizen of the state of California, he sued Nike under the state's
false advertising and unfair competition laws because, he argued, the
advertisements were intended to reach and influence consumers of Nike
products and because certain factual statements in the advertisements were
misleading.   He did not allege that Nike made any of the allegedly false
statements with knowledge of falsity or with reckless disregard for the
truth of falsity of the statements (i.e., actual malice).[47]  Mr. Kasky
sought restitution of unspecified "monies" acquired by Nike through the
allegedly false advertisements, a court-supervised program to correct
Nike's misstatements, and legal fees.
The California Unfair Competition Law ("UCL")[48] and False Advertising Law
("FAL")[49], under which Mr. Kasky sued, present interesting ambiguities in
terms of scope and application.  For example, the UCL prohibits "any
unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertisement."  The UCL defines
"advertising" to include essentially any communication of information about
the advertiser's products or services if that communication is received in
California, without regard to the site of publication; the law provides for
"strict" liability without regard to the advertisers efforts to ensure
accuracy or to use care and even if the statements are literally true,
though deemed misleading by the court.  The UCL also provides for suits by
private individuals such as Mr. Kasky for a panoply of remedies including
injunctions, court-ordered and supervised corrective advertising campaigns,
and  restitution of ill-gotten gains. California's False Advertising Law is
very similar to the UCL in scope, but it applies only to negligent
misstatements in advertisements while providing for criminal penalties.
The statements challenged by Mr. Kasky bear close examination.   First, not
a single statement urged the purchase of any product of Nike.  Second, the
statements made by Nike were responses to charges made in the media or by
labor and other organizations and often reported by the news
media.  Third,  the core of Mr. Kasky's allegations is that Nike's
published statements ignored or omitted contrary specific incidents,
articles or reports that contradicted Nike's point of view.
Four key categories of challenged statements illustrate the nature of Mr.
Kasky's theory of the case against Nike:[50]
*Nike's statements to the effect that the company adopted codes of conduct,
memoranda of understanding and procedural guidelines providing that
contractors must not tolerate corporal punishment, abuse or harassment of
worker and that "Nike expatriates" are to "ensure safe working conditions
and prevent illegal working conditions";
*Certain specific comments, including CEO Philip Knight's comment at a
shareholders' meeting that the air quality in the rubber room of a plant
was better than the air quality in Los Angeles and a statement by another
Nike official, as quoted in a newspaper, than Nike's effort to require that
subcontractors meet U. S. OSHA standard was "a work in progress";
*Statements that workers in Nike contract facilities have received free
meals, housing and health care and transportation subsidies;
*Statements quoting the Andrew Young report to refute certain allegations
against the company and portray the company as a moral actor, though not a
perfect one.
These are noteworthy because, as argued by Nike in its brief, the thrust of
the lawsuit by Mr. Kasky was that Nike did not, in its advertisements,
quote other sources regarding, for example, instances when the codes of
conduct were violated by contractors of Nike,  particular factories with
air quality problems, articles alleging certain workers were required to
pay for lunches, or the fact that the Andrew Young report did not address
wage, hour or overtime issues.[51] Mr. Kasky thus sued in large part as a
result of claimed omissions by Nike or the failure of Nike to be fair or
complete in its speech, according to Mr.Kasky's point of view.  Equally
noteworthy is the fact that the statements uttered by Nike were often not
unequivocal or sweeping in nature.   For example, Nike in the
advertisements regarding the Young report quoted the report as stating that
"Nike is doing a good job…but Nike can and should do better." [52]
The trial court dismissed the case and the intermediate appellate court in
California affirmed the dismissal on the ground that the expression by Nike
was not commercial and therefore was protected by the First
Amendment.[53]  In affirming the trial court's dismissal of the case, the
state appellate court held that the case directly concerned a "public
dialogue on a matter of public concern" -- the question, among others, of
"employing low-cost foreign labor for manufacturing functions once
performed by domestic workers" ­ and as such was plainly protected by the
First Amendment as speech and not merely as commercial speech.[54]
The California Supreme Court[55], however, held that the issue-oriented
advertisements could be deemed commercial and covered by the UCL and FAL.
The four-to-three majority reinstated the Kasky suit because, according to
the majority, (a)  Nike was engaged in commerce, (b)  the intended audience
was likely to be actual or potential buyers or customers or persons acting
on their behalf or with influence on such potential customers, and (c) the
factual content of the messages described business operations, policies,
products or services and for a significant segment of the buying public,
labor practices do matter in making consumer choices.  For the California
Supreme Court the critical question in deciding whether to classify the
speech as commercial for the purpose of determining the level of
constitutional protection was whether the speech was likely to influence
the buying decisions of consumers and not whether Nike was responding to
attacks upon it in the course of a very public debate and
controversy.[56]  The majority also reasoned that government regulation was
unlikely to chill commercial entities, including Nike and its contractors,
in making statements about their business operations and if it did chill or
make those entities more cautious regarding the truth of their assertions
then the state's laws will have a salutary effect on commercial speech.[57]
   The dissenters vigorously disagreed in part because the rule announced by
the majority would leave businesses unsure whether even truthful statements
might deceive or confuse the public and thus lead to expensive and
burdensome civil litigation.  The result, concluded one of the dissenting
justices, was the elimination in California of any effective,
constitutionally protected forum in which Nike could defend its labor
practices.[58]
Such was the posture of the case as it went to the U. S. Supreme
Court.  Nike was sued by an individual who claimed neither injury nor a
deliberate, knowing or reckless falsehood, who  identified no offer to
enter into a commercial transaction based on some form of deception or
fraud, and who merely disputed the point of view taken by Nike in its
issue-oriented advertisement and claimed falsity through omission of
information that Mr.Kasky, as a reader, claimed should have been
included.  Further, under the California statute at issue, Mr. Kasky  sued
Nike as a private attorney general and sought an injunction,
court-supervised speech by Nike, disgorgement of monies earned through the
advertisements, and attorneys fees.  Thus, Mr. Kasky assumed the mantle of
the state, as authorized by statute, and sued to stand in the shoes of a
regulator to demand what he considered to be fair speech on matters of
globalization, economic policy, labor practices, and similar issues.  By
statute, in other words, California delegated, and Mr. Kasky sued to
assume, the power to regulate the content of speech in the civil courts in
a manner that a state could not itself do if the speech at issue were
deemed non-commercial and if it were not spoken by someone or some entity
engaged in commerce.
The focal point of the case was thus the definition of commercial
speech.   Kasky's argument before the U.S. Supreme Court was essentially
one that called for a broad definition of the commercial speech as a category:
The First Amendment permits the regulation of false or misleading
commercial speech, and Nike's representations, alleged in the complaint to
be false, are commercial speech.  Hence, they are subject to regulation
under [the California] laws.
Nike's representations are commercial speech because, as alleged in the
complaint, they gave consumers factual information to rely on in deciding
whether to buy Nike's products.  Many consumers do not want to buy goods
made under illegal, unsafe, or inhumane conditions.  Nike's representations
assured these consumers that its goods are not made under such conditions.[59]
Thus, Kasky would have had the Court define as commercial speech Nike's
responses to the allegations of its critics, be it in the form of a
marketing campaign, letters, or advertisements, in order to avoid the more
demanding standards applied to regulations of speech fully protected by the
First Amendment.  In taking this position, Kasky relied on and echoed the
decision of the California Supreme Court in the case below that broadly
defined commercial speech to cover all communications by a speaker engaged
in commerce to an intended audience including potential customers or people
likely to influence customers if that communication conveyed factual
information likely to influence consumers in their commercial decisions.[60]
        Nike, as one would expect, argued for a narrower definition of commercial
speech, one tied to actual offers of commercial transactions:
Having said over a decade ago that 'the test for identifying commercial
speech' is whether it proposes a commercial transaction (Bd. Of Trustees v.
Fox, 492 U.S. 469, 473-74 (1989), this Court has rendered several even more
definitive rulings 'usually defin[ing] [it] as speech that does no more
than propose a commercial transaction" (United States v. United Foods,
Inc., 533 U.S. 405, 409 (2001).  See also, e.g., Edenfield v. Fane, 507
U.S. 761, 767 (1993).  The California Supreme Court, by contrast, omitted
any requirement that the speech make a commercial proposal at all, much
less that it do so exclusively.[61]
As appealing as the simplicity of Nike's argument may appear to be, it is
neither simple nor a solution to speech by businesses or individuals that
manipulates the purchaser of sneakers through false information.  And, if
the states cannot regulate the use of advertising or marketing materials
that manipulate the marketplace through outright deception, assuming the
advertising omits an actual offer, then the question would arise whether
that means the states and courts are powerless to regulate publications
that manipulate stock prices,  fix prices among competitors, or accomplish
other substantive evils by subtle means.  It cannot yield such a result and
it is at that collision of competing values that surfaced in the Supreme
Court on June 26, 2003,  with the dismissal of certiorari as improvidently
granted in Nike v. Kasky.[62]
        The dismissal of certiorari in Nike v. Kasky was not a mere one sentence
order.  In fact, the dismissal generated its own round of opinions,
concurring and dissenting.  Justice Stevens concurred in the dismissal of
certiorari and argued three points.   First, he said the Supreme Court
lacked jurisdiction because the judgment entered by the California Supreme
Court (the highest court of that state) was not a final judgment on federal
jurisdictional rules and the resolution of any federal issue by a federal
court might be affected by further state court proceedings.  Second, he
argued that both Kasky and Nike lacked standing at this point in the
litigation to bring a federal claim.  Third, he proceeded to the meat of
his argument and held that the issues presented by the case were so novel
as matters of constitutional law that Supreme Court should avoid premature
adjudication.  This section of his concurrence is worthy of a close reading
because it bears on his perspective in terms of the speech at stake:
This case presents novel First Amendment questions because the speech at
issue represents a blending of commercial speech, noncommercial speech and
debate on an issue of public importance  On the one hand, if the
allegations of the complaint are true, direct communications with customers
and potential customers that were intended to generate sales ­ and possibly
to maintain or enhance the market value of Nike's stock­contained
significant factual misstatements.  The regulatory interest in protecting
market participants from being misled by such misstatements is of the
highest order.  That is why we have broadly (perhaps overbroadly) stated
that "there is no constitutional value in false statements of fact."  Gertz
v. Robert Welch, Inc., 418 U. S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974).  On the other hand, the communications were part of an ongoing
discussion and debate about important public issues that was concerned not
only with Nike's labor practices, but with similar practices used by other
multinational corporations.   See Brief for American Federation of Labor
and Congress of Industrial Organizations as Amicus Curiae 2.  Knowledgeable
persons should be free to participate in such debate without fear of unfair
reprisal.  The interest in protecting such participants from the chilling
effect of the prospect of expensive litigation is therefore also a matter
of great importance.  See, e.g., Brief of ExxonMobil, et al. as Amicus
Curiae 2; Brief for Pfizer, Inc., as Amicus Curiae 11-12.  That is why we
have provided such broad protection for misstatements about public figures
that are not animated by malice.  See New York Times v. Sullivan, 376 U.S.
254, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964).[63]
This approach is even more important in terms of counting heads on the
court because Justice Ginsburg joined in the entire concurrence and Justice
Souter joined in this third argument only.
        Justice Kennedy dissented without filing an opinion.  Justice Breyer,
joined by Justice O'Connor, dissented with an opinion that sharply differed
from Justice Steven's concurrence on every point.   Justice Breyer found no
jurisdictional or standing impediments to review for two reasons:  first,
even if the decision of the California Supreme Court were not a final
judgment under the Federal rules, the basic issue for decision was whether
that court's ultimate holding was legally correct that the First Amendment
allowed "Kasky's  false advertising 'prosecution' to go forward;" and,
second, the litigation against Nike under the private attorney general
statute of California threatened serious financial injury to Nike and
threatens to discourage Nike's speech.  Justice Breyer concluded,
therefore, that there existed no prudential argument for a delay in
deciding the matter and that in fact any delay "extracts a heavy First
Amendment price."[64]
        Justice Breyer emphasized further that there is a difference between
speech involving communications purely commercial in nature and those that
mix commercial and "noncommercial (public-issue-oriented)
elements,"[65]such as the statements at issue in this case.  Consequently,
he stated he would apply "a form of heightened scrutiny to the speech
regulations in question" ­ a level of scrutiny, he added, the California
statute could not survive.  Particularly significant for Justice Breyer was
the delegation of state authority to private individuals, who had suffered
no injury, of private false advertising actions:
The delegation of state authority to private individuals authorizes a
purely ideological plaintiff, convinced his opponent is not telling the
truth, to bring into the courtroom the kind of political battle better
waged in other forums.  Where that political battle is hard fought, such
plaintiffs potentially constitute a large and hostile crowd freely able to
bring prosecutions designed to vindicate their beliefs, and to do so
unencumbered by the legal and practical checks that tend to keep the
energies of public enforcement agencies focused on more purely economic
harm.[66]
        The scorecard reads,  at the end of this process:  three would have
decided the case now and six wanted to duck the opportunity, with three of
those arguing that the case was just too novel to be decided at this
time.  In effect, those three justices, and possibly another three, wanted
a bit more time and the benefit of state court decisions before wading
further into the morass that has become the commercial speech doctrine.
        The obvious question regarding such judicial restraint is: why now?  The
answer must lie, at least in large part, in the fact that the Nike
litigation brought into focus the irreconcilable conflict between a
commitment to wide-open, robust public debate of issues and a legal regime
that, on the basis of the perceived commercial content of the expression,
allows litigation directly aimed at chilling such speech when no one can
point to a single offer to sell shoes in any of Nike's responses to its
critics.   Justice Breyer's dissent from the dismissal of certiorari
crystallized the problem.  Not only is this a case which involved speech
about a public issue, but it was a case prosecuted under the de facto guise
and imprimatur of the State and without any of the usual checks and
balances that affect and constrain State enforcement actions or private
damage actions.
        The distinction between pure commercial speech and public-issue-oriented
commercial speech may appear appealing, but it will inevitably lead to the
same line drawing and definitional problems that plagued the court from
Virginia Board of Pharmacy through Central Hudson, Posadas and the other
cases that attempted to tackle the issue.  The words uttered by Nike or its
agents must be deemed either speech or commerce in terms of the intent of
the speakers.  If the words constitute a commercial act, then the State may
bring an enforcement action for false advertising, unfair trade practices
or whatever is appropriate.  If the words as uttered caused harm to an
individual and that harm is cognizable by statute or a tort action, then
that individual may bring a suit to recover damages.  But if the harm is
non-existent, and the dispute is a political disagreement, then the courts
and private attorneys general statutes are antithetical to free expression
and debate; and, the only reason we find ourselves in this conundrum is the
fact that because commerce is involved, somehow this speech by Nike must be
different and less deserving of protection.  As Justice Breyer correctly
argued, the courts are just not the forum for the resolution of that sort
of debate.
The missing link is intent to defraud or deceive on the part of Nike or at
least the intent to propose a commercial transaction and it is that missing
link that demonstrates the incoherence of commercial speech as a category
of speech.  It is simply unnecessary and fraught with risks.
If Nike deliberately, knowingly, or with reckless disregard published
falsehoods to defraud or deceive consumers regarding its sneakers, then
that would be a different matter.  If Nike published an offer to sell
sneakers and did so in a misleading fashion, then that would be a different
matter.[67]   If Mr. Kasky himself suffered some injury or harm as a result
of advertising by Nike, then he could sue for his own recovery and perhaps
even as a class representative in a class action and that, too, would be a
different matter.  Any statute addressing one of those situations would be,
however, quite different from the California statute under which Mr. Kasky
sued.
Such a revised statute would not expose a speaker to litigation simply
because some member of the public disagreed with Nike's take on the
facts.  Such a revised statute would require the requisite mens rea or
state of mind on the part of the speaker; it would require evidence of
offer by the speaker (Nike) to enter into a commercial transaction or
transactions; it would require, before allowing either individual actions
or class actions, some allegation of and ultimately evidence of injury to
the plaintiff.  And, such a revised statute (as exists in many states)
would be directed not at speech, but at transactions, fraud, and similar acts.
   As the California statute currently stands, however, it is a strict
liability statute directed at speech, as argued by Nike in its brief before
the Supreme Court, that can be saved only if the speech at issue is somehow
deemed less worthy of First Amendment protection.[68]  It is a strict
liability statute that would be unconstitutional but for the assumption
that commercial speech is a viable category of speech and as such is
entitled to less protection.  The obvious disagreement over the definition
of commercial speech and the degree to which it must directly or on its
face propose a commercial transaction to fall into the category
demonstrates the incoherence of the doctrine and the need for a different
approach.  This different approach is hardly a novel one and was, in fact,
suggested by other cases decided by the Court during this same term.
OF INTENT AND BURNING CROSSES: A WAY OUT OF COMMERCIAL SPEECH AS A DOCTRINE
At first glance, the Supreme Court's burning cross or hate speech decisions
in R.A.V. v. City of St. Paul, Minnesota,[69] and Virginia v. Black[70]
would seem to have no or little relevance to the Nike litigation or
commercial speech, but the distinction accepted by the Court between the
invalid ordinance in R.A.V. and the essentially valid statute in Black
suggests a solution to the problem of speech that may have had a commercial
motive or impact.
The R.A.V. case arose after several teenagers, including the petitioner,
constructed a make-shift cross, consisting of pieces of a broken chair
taped together, and burned it in the fenced front yard of a neighboring
black family.   Justice Scalia, writing for the Court, began by noting the
teenagers could have been prosecuted under any number or significant state
laws, including Minnesota's anti-terroism law, arson law, and criminal
damage to property laws, each of which carried serious penalties.  Instead,
the teenagers were charged under the city's "Bias-Motivated Crime
Ordinance," which provided:
Whoever places on public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a burning
cross or Nazi swastika, which one knows or has reasonable grounds to know
arouse anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender commits disorderly conduct and shall be guilty of
a misdemeanor.[71]
Because the Minnesota Supreme Court construed the ordinance to reach only
"fighting words" within the meaning of Chaplinsky v. New Hampshire, 315
U.S. 568 (1942),  and thus only expression not protected by the first
amendment, Justice Scalia, writing for the majority of the Court, did not
address the question whether all the expression actually covered by the
ordinance would in fact amount to "fighting words."  While agreeing that
cross burning, though a form of symbolic expression,  is reprehensible and
grounds for possible prosecution under different laws, the
Court  invalidated the ordinance because it prohibited otherwise permitted
speech solely based on the subjects of the speech.   For example, the Court
held that the ordinance permitted displays of abusive invective unless
addressed to one of the disfavored topics (e.g., gender, race, and
religion).  Justice Scalia further argued that anyone using fighting words
expressing hostility based on political affiliation, union membership or
homosexuality would not be covered by the ordinance.  This content-based
discrimination among speakers was sufficient to hold the ordinance facially
unconstitutional.
        The contrast between the result in R.A.V. and the result in the more
recent decision in Virginia v. Black is not as striking as it may
seem.   In Black, the Virginia law covered not merely the burning of a
cross with knowledge that it would arouse anger or resentment based on
race, but the burning of a cross with intent to intimidate any person or
group of persons:
It shall be unlawful for any person or persons, with the intent of
intimidating any person or group of persons, to burn, or cause to be
burned, a cross on the property of another, a highway or other public
place.  Any person who shall violate any provision of this section shall be
guilty of a Class 6 felony.
Any such burning or a cross shall be prima facie evidence of an intent to
intimidate a person or group of persons.[72]
Mr. Black, who had led a Ku Klux Klan rally in August 1998, on private
property within sight of a state highway and several homes, was prosecuted
for burning 25-to-30 foot cross.  Two other individuals, not affiliated
with the Klan, were prosecuted for a separate incident in which they
attempted to burn a cross in the yard of black neighbor.  All three were
convicted and appealed.
        The Court, in a plurality opinion written by Justice O'Connor, struck the
second part of the statute that stated that the act of cross burning was
prima facie evidence of intent to intimidate.  The plurality held the
presumption created an unacceptable risk of suppression of ideas.  The
Court upheld, however, the statute generally because it did not violate the
First Amendment insofar as it banned cross burning with the intent to
intimidate.[73]  Thus, unlike the city ordinance in R.A.V., the Virginia
statute did not target only speech directed to certain disfavored subjects
and was not, therefore, content-based discrimination.   Black's conviction
was reversed because the trial judge had instructed the jury in a manner
that allowed it to rely on the presumption of intent, but the Court also
vacated the state supreme court ruling that had reversed the other
convictions in reliance on the R.A.V. decision.
        If the obvious and thorny First Amendment issues presented by a burning
cross or Nazi swastika can be resolved through an old-fashioned resort to
proof of intent to commit a crime, then there is no reason why the debate
over commercial speech cannot be similarly resolved.  First, if the
substantive evil that state legislatures ought to be addressing is fraud in
the inducement or deceptive business practices, then nothing should be the
subject of criminal or civil action by the state, individuals, or private
attorneys general without proof of the requisite level of intent on the
part of the speaker (e.g., intent to offer or induce a consumer to transact
or intent to defraud).  Thus, if a State concluded Nike tried to manipulate
the market or commit some other wrong under the guise of an issue-oriented
advertisement that it knew to be false, then the State should be required
to state those allegations and prove its case.  If an individual wishes to
sue for some injury, then the individual should be required to state a
claim and prove the case.  The intent or state of mind of Nike will be an
element to one degree or another, depending on the claim.  But if the
underlying complaint of the state or some disgruntled individuals is that
they disagree with Nike's published statements and there is no question of
actual injury or violation of a valid state law, then litigation against
Nike as it was filed in California, would be nothing more than an effort to
discriminate against Nike and regulate its speech purely on the basis of
content.   Given the fact that Nike is clearly a public company and public
figure for libel purposes and that Nike would be required to prove actual
malice before recovering against any speaker defaming the company,
fundamental fairness demands that Nike at least be allowed to defend
itself, without defaming any other individual, provided it too was speaking
without knowledge of a falsehood, without reckless disregard of the truth
or falsity of its advertising and without any criminal intent.
CONCLUSION
    The Nike case underscores the danger of pretending some speech can be
safely dismissed or granted lesser constitutional stature solely because it
appears to involve commercial motives.  If the speech also involves,
accomplishes or accompanies some act that may be  regulated or subjected to
prosecution (e.g., the commission of a fraud or a conspiracy to fix
prices), then the act, not the speech, is the issue ­ though the speech may
be relevant and probative evidence in court.   In other words, if the
communication at issue is not a commercial or legal act in itself, then it
is speech and it is a First Amendment question; if there is communication
(i.e., speech), but it is merely incidental to the act and the act is
subject to lawful regulation, then the issue is not speech and it is not a
First Amendment question.[74]    The matter need not be made more difficult
by layering on it questions about the categorizations of speech when those
categories do not themselves add any clarity to the basic attempt to define
what is protected by the First Amendment and what is not.  One difficult
question will suffice.
The inquiry cannot stop with the distinction between commerce and speech,
however.  At times the act in question is commerce only and that is clear
from the intent of the actor, but the statute or regulation in question may
have been aimed by the governmental authority at that commercial act as a
means of regulating speech.  Here again, intent is an issue, but it is the
intent behind the regulation, not the intent of the actor or
speaker.  Although states may, within limits, regulate commerce, the courts
have found in certain cases that a State has adopted and enforced certain
putative commercial regulations of purely commercial messages (those
offering to enter into a transactions, those posting prices and the like)
for the purpose of suppressing public discourse or, more accurately in some
cases, for the purpose of keeping the public ill-informed (even about
commercial issues) and not for the purpose of  regulating commercial
activity within the State's jurisdiction.   In such cases the Supreme Court
has struggled to arrive at a working First Amendment test for what has been
loosely termed "commercial speech."  If that term or category were limited
to a narrow class of cases that truly involved commerce by the speaker and
expression-oriented state regulations, the category might be harmless and
even helpful.  Unfortunately, history and the Nike litigation show the
category has been interpreted more broadly and has swept into its ambit
expression that is not merely a component of commerce.   The result is
greater regulation of speech or the threat of such than otherwise would be
constitutional. The First Amendment would be better served by simply
acknowledging that some commerce, as is true of some other forms of
conduct, may be deemed expressive and some regulations of commerce may have
a purpose that must satisfy the same test as would protect any form of
expression under the First Amendment.
The Nike v. Kasky litigation twists and reverses the
commerce-regulated-to-limit-discourse problem faced by the Court in such
cases as Virginia State Board of Pharmacy v. Virginia Citizens Counsel,
Inc.[75], and Bigelow v. Virginia.[76]  Because the communications at issue
made no offers to sell or transact commerce and because the plaintiff
stipulated he personally suffered no injury, the Nike case is an example of
discourse-characterized-as-commerce-to-support-regulation.  The end result
may be the same (i.e., discourse is regulated), but the starting points are
different.  In the former, the state's regulation is unconstitutional
because it regulates a commercial act as a means of limiting public
discourse -- without any reason grounded in the alleged falsity or
deceptiveness of any element of the transaction or grounded in the
transaction's illegality under that state's law and within that state's
jurisdiction.  The focus of the analysis is the illegitimate purpose behind
and effect of the state's regulation.  In the latter Nike-related
situation, the state is not regulating a commercial act, but is regulating
discourse as if it were a commercial act because the subject of the
discourse has some nexus with commerce.  To avoid an infringement upon the
expressive rights of the speaker in Nike-related situations, the focus of
the analysis should be the purpose, or intent, of the speaker; and, the
content of the speech should be relevant only to the extent there is some
recognized individual right of action involving, for example, defamation,
invasion of privacy, or other cognizable injury.
Compare speech motivated by commerce (Nike's responses to it critics over
its manufacturing and labor practices, for example) with speech proposing,
at least arguably, a conspiracy to commit homicide.  Certainly, a state may
punish that conspiracy, if the burden of proving the elements is satisfied
in court.  This poses few serious doctrinal problems for the courts because
the intent of the conspirators is the commission of a crime, not the
expression of ideas or information.  The result would be the same if the
communication at issue consisted of a series of statements from a podium to
the effect that people should revolt against and behead leaders of the
government.  While it would be unwise and reprehensible speech, in the
United States it would not in itself be grounds for criminal punishment or
even a civil action, without more ­ much more.  If people have a right to
advocate revolution, a business surely has the right to extol or defend its
own corporate image.
    If revolution seems a difficult comparison, one need only look a few
weeks back in the last term of the Supreme Court to find an instructive
analysis in the law of burning crosses and symbolic expression.  On first
reading, the decision in Virginia v. Black would seem entirely inconsistent
with the holding in R.A.V. v. City of St. Paul, Minnesota.  It is
not.  Both cases dealt with the same basic act:  the burning of a cross, a
symbol understood by virtually everyone in this county to stand for the
oppression and intimidation of African Americans.  Is a burning cross a
form of speech?  Yes, generally.  It conveys an idea.  The R.A.V. case made
clear that the idea, reprehensible as it is, cannot constitutionally be
punished as hate speech without more.  The Black case provided the "more"
and that was the intent and the act of intimidation.  In Black, the act
punished was an old-fashioned assault or act committed with intent to place
someone in fear for his or her safety.  The R.A.V. case merely went to the
form of expression.   The difference was the intent of the actor.  In
R.A.V., the ordinance differentiated speech based on its content; in Black,
the statute focused on the intent to intimidate.
The same logic should be applied to speech deemed commercial.  The
expression of a commercial idea (whatever that may be) in an advertisement
is hardly a basis for regulation if there is no proposed or intended
transaction.  If the advertisement does more and the "more" would be the
proposal of a transaction or other act that may be regulated or punished by
the state, then the advertiser-speaker will have left the domain of
expression and entered into the domain of commercial transactions.  One
must ask of the transaction at issue:  is it an offer to enter into a
commercial transaction ­ to which any words used are mere component parts
of the offer; or, is it speech, commercially motivated or otherwise, for
the purpose of exchanging or expressing of ideas or information, but not
solely for the purpose of offering to enter into a commercial
transaction.  And, of the regulation, one must ask:  what is the intent or
purpose behind it?  Is it to regulate or limit speech?
   This is not an evasion of the underlying issue (i.e., the definition of
protected speech), but a narrowing of the focus of the inquiry.   It is
axiomatic that the First Amendment protects expression and expression
includes the utterance of words.  Logically, if certain expressions or
utterances are not protected, then courts must define what it is that
removes them from the scope of the First Amendment.  One such defining
characteristic is the accomplishment of an act that is properly regulated
by government and that is not primarily expressive in purpose and
understanding.[77]  Thus, there is either an act or there is not and there
is the requisite intent or there is not.  If there is no act or offer and
no intent, but there is expression, then the First Amendment intercedes,
even if one still disagrees with the message delivered by, in this case,
the so-called sweatshop-supporting and immoral manufacturer of running
shoes.   If there is an act, according to the intent of the actor, but the
statute is not aimed at expression, then the First Amendment need not be
consulted.
    This is no different from the Court's ruling, again during the last
term, in Illinois ex rel. Madigan v. Telemarketing Associates,
Inc.[78]  The telemarketers in that case were clearly speaking, but they
were just as clearly making false or misleading statements designed to
deceive donors or potential donors about the percentage of any donations
that charities would actually receive.  That is, the telemarketers in that
case were accused of deception or fraud in the act of soliciting
money.  Speech was not the issue, self-serving contrary claims of
telemarketers notwithstanding.  Consequently, the Court held the First
Amendment did not bar the state's fraud suit against the
telemarketers.  The intent or purpose of the speaker in this and the
Virginia cross-burning case placed the communications at issue in the realm
of acts that may be regulated or punished; and, the intent behind the
statute also did not raise First Amendment concerns. Moreover, in
Telemarketing Associates, as in R.A.V. and Black, the results comported
with commonsense ­ a happy coincidence in matters of constitutional law.
The impact of the litigation against Nike, sent back to California from
whence it came and settled by the litigants, will not be limited to the
commercial world of corporations, public relations agencies or
advertisers.  The case may have serious implications for all forms of
expression, especially journalism.  For example, if businesses or
business-people cannot, or believe they cannot, speak freely on matters
affecting business, then the result is a poorer marketplace and poorer,
less informed, news stories.[79]  If a business cannot respond in the
marketplace with its own speech, but its critics may attack, perhaps
constrained only by the tort of defamation, then the imbalance in legal
rights will create pressure to recognize or expand different causes of
actions to vindicate the interests of otherwise silenced commercial speakers.
   Moreover, what expression is truly and completely divorced from any
commercial purpose?  As the song goes, more or less, we live in a material
world; commerce motivates much, if not most, expression.[80]  If courts
protect speech, subject to the laws of libel, privacy and other defined
causes of action, but reduce the level of protection provided by the  First
Amendment once the speech is deemed to have some nexus with commerce, then
what protection does any speaker have from other inquiries into the motives
behind political speech, art, or music?   What if an artist speaks because
he wants to promote his brand of art and sell more paintings?  Nike's shoes
just might take us running down that slippery slope.
The Nike litigation demonstrates the importance of selecting constitutional
terms carefully.  Speech ­ that is,  expression ­ is the heart of the First
Amendment and words inevitably suggest expression.  The apparent doctrinal
difficulty for courts, legislators, and litigants stems from the fact that
not all expression is accomplished through speech and not all speech is
accomplished through words and, by logic and common experience, not all
words --spoken or otherwise ­ are protected by the First Amendment.  Still,
all of these cases involve some form of communication and, as a result,
courts start asking themselves to what degree the First Amendment
applies.  This is hardly a new observation or problem.
One need only compare two hypothetical conversations between chief
executive officers of competing producers of the proverbial
widgets.[81]  If they discuss the political and economic pros and cons of
the antitrust laws, including the rules against price-fixing among
competitors, and even advocate the legality of such restraints of trade,
one could reasonably argue such a conversation is protected by the first
amendment.  The minute the two agree or attempt to agree, explicitly or
implicitly, to fix their own widget prices, however, no one would seriously
argue that the conversation is anything more than a possible crime, not
speech in a constitutional sense, though it clearly involved speech, or
speaking, in terms of common usage.  The line between the two is, of
course, shifting and at times unclear.  Such is one reason we have judges
and juries ­ they find the facts.
The fact that words are used (or drawings or symbols) in the protected
former example and the unprotected latter example is mere
coincidence.  First Amendment speech is a constitutional
matter.  Transactional communication is different.  The latter includes
words written or spoken in the commission of a crime or other act --
uttered not to express an idea or thought, but to accomplish the act apart
for persuasion alone.  If the act is accomplished (assuming this is a
criminal matter), a crime has been arguably committed.  If the act is not
accomplished, there may still have been at least an attempt or conspiracy
with the requisite intent to support a criminal prosecution for the attempt
or the conspiracy.  If the First Amendment means anything it means that the
mere expression of ideas or mere exchange of information cannot be made
criminal in and of itself.  There must be some underlying crime, whether it
is price-fixing in the antitrust context, a securities violation, or other
act. Crimes are acts, attempts to act, and, in limited cases, conspiracies
to act, as defined by the legislature.  Expression of an opinion, an
attempt to express or opinion, and a conspiracy to express an opinion
cannot be made criminal.  The fact that some zealous prosecutor might
mistake a persuasive expression of ideas for a conspiracy, thus requiring a
legal defense, is a fact of life and cannot be doctrinally made
impossible.  Courts exist to sort through those thorny issues ­ at times
they do so correctly, at times not.
The same analysis applies to civil matters, such as deceptive or fraudulent
offers in advertisements.  If the bad act sought to be remedied or
regulated is deception or fraud in a commercial transaction, then the court
must ask first if there was an offer stated or intended and if there was
the requisite intent to deceive or defraud.  This is far different from a
generalized inquiry into the motives of a speaker generally.  One can be
motivated by economic or commercial interest and not have actually made an
offer or intended to deceive or defraud in a commercial transaction or in
advertising.
If one views First Amendment speech not as the mere utterance of words, but
as the expression of ideas or exchange of information as opposed to the
commission or attempted commission of an act properly regulated, then it
becomes obvious that the expression of a commercial idea or exchange of
commercial information by a shoe manufacturer or marketer should be no
different from the expression of an idea or exchange of information by a
person (i.e., party loyalist, advertising agency or consultant) working for
a political candidate.
Any argument that the courts ought to seriously probe the general motive or
interest of a speaker -- except insofar as there is evidence of the
requisite state of mind regarding the commission of a crime or infliction
of a civil wrong (e.g., the tort of libel) ­ dangerously encourages the
probing of the general interests of other speakers, who could also have
motives grounded in economic aggrandizement.  The generalized motive of a
speaker, be it commercial or not, should not matter under the constitution
because any other rule invites the wrong sort of inquiry.  The general
motive should be irrelevant unless there is evidence of an act that may be
regulated and then the inquiry must focus on the intent to do that act.
The sale of sneakers should be an easy matter.  Selling sneakers is not, we
can agree, a matter protected by the First Amendment.  The selling of
sneakers is a commercial matter ­ an act -- subject to the laws of the
various states.  Leaving aside possible impulse buys by consumers who
happen upon a store display and purchase the shoes without talking to the
salesperson (hard as that may be to imagine), the means by which the
manufacturer sells the shoes invariably involves some act of speaking or
communicating price, terms, quality of goods, and other related information
about the product.  The words or information thus communicated are
necessary elements of the transaction intended; those words are only
incidentally communicative and are not uttered as a form of
expression.  The point or purpose of the activity is to transact commerce,
not to be expressive.  Thus, the matter at hand is expressive speech or it
is commerce ­ one or the other.  An understandable objection to this
approach asks if the distinction between commerce (the act) and speech is
any clearer than the prevailing attempts to distinguish commercial speech
from other speech.  There will be arguments over the drawing of the line,
but the key will be the identification of an underlying transaction and
intent to so transact commerce.
If Nike offers to sell shoes through advertisements stating false prices or
false claims regarding the construction or durability of its sneakers, then
states may reasonably regulate or create private causes of action grounded
in the offer or inducement to enter into a commercial transaction.  But,
there must be an actual commercial transaction involved, proposed, intended
and at least contemplated within the scope of the language in the
advertisement in order to make the substance of exchange a transaction
rather than speech.
There ought to be room in public debate for constitutionally protected
issue-oriented or image-oriented advertisements -- whether one
characterizes it as the positive spin of a company's labor policies,
environmental practices or contribution to society or as a wrongheaded and
incomplete view of the world and business.  There ought to be that room
even if the exposition of issues by the speaker might influence a consumer
in some manner.  The California Supreme Court dangerously stepped onto a
steep slope when it held that any speech that might influence consumers'
buying decision must be commercial speech.[82]  One might find such images
distasteful, perhaps even laughable, if not downright false (as Mr. Kasky
apparently did with regard to Nike), but toleration of such expression is
just one cost of having the wide-open, robust and uninhibited debate so
often invoked as the purpose of the first amendment.[83]  Such speech
should be subject to the same legal constraints applicable to other speech
that is distasteful, laughable or downright false ­ no more and no
less.  If the issue is a commercial act or criminal act that happens to
include or to have been accomplished through some communication, then the
same standards that would apply to any enforcement action by the state or
to any private civil action for damages, should apply ­ again, no more and
no less.  If commercial speech is redefined narrowly to encompass only
commercial offers[84], then the category has no meaning or purpose apart
from the cases and doctrines that already distinguish speech from acts or
conduct that may be regulated.  "Commercial speech" as a category or
doctrine thus only confuses matters, leading to cases such as Nike v. Kasky
and turning the First Amendment on its head, or at least twisting its ankle.
[1]  Nike, Inc., v. Marc Kasky, No. 02-575, On Writ of Certiorari to the
Supreme Court of California from the Supreme Court of the United
States.  The United States Supreme Court heard oral argument on April 23,
2003, and dismissed on June 26, 2003, certiorari as improvidently granted.
123 S.Ct. 2554.
[2]  See, e.g., Soontae An, From Business Pursuit to a Means of
Expression:  The Supreme Court's Disputes Over Commercial Speech from 1942
to 1976,  8 Comm. L. & Pol'y 201 (Spring 2003); Alex Kozinski and Stuart
Banner, The Anti-History and Pre-History of Commercial Speech, 71 Tex. L.
Rev. 747 ( Mar. 1993); A. Kozinski & S. Banner, Who's Afraid of Commercial
Speech?, 76 Va. L. Rev. 627 (May 1990) T. Garrety, The Submarine, The
Handbill, and The First Amendment, 56 U. Cin. L. Rev. 1167 (1988).

[3]  See, e.g., Robert Post, The Constitutional Status of Commercial
Speech, 48 UCLA L. Rev. 1 (Oct. 2000);  Daniel E. Troy, Advertising:  Not
"Low" Value Speech, 16 Yale J. on Reg. 85 (Winter 1999); Daniel Halberstam,
Commercial Speech, Professional Speech, and the Constitutional Status of
Social Institutions, 147 U. Pa. L. Rev. 771 (April 1999); Nat Stern, In
Defense of the Imprecise Definition of Commercial Speech, 58 Md. L. Rev. 55
( 1999);  William S. Dodge, Weighing The Listener's Interests:  Justice
Blackmun's Commercial Speech and Public Forum Opinions, 26 Hastings Const.
L. Q. 165 (Fall 1998); Caren Schmulen Sweetland, The Demise of the Workable
Commercial Speech Doctrine:  Danagers of Extending the First Amendment
Protection To Commercial Disclosure Requirements, 76 Tex. L. Rev. 471 (
Dec. 1997);  William Van Alstyne, Remembering Melville Nimmer, Some
Cautionary Notes on Commercial Speech, 43 UCLA L. Rev. 1635 (June 1966);
Rodney Smolla, Information, Imagery, and The First Amendment:  A Case for
Expansive Protection of Commercial Speech, 71 Tex. L. Rev. 777 (Mar.
1993);  Alex Kozinski and Stuart Banner, The Anti-History and Pre-History
of Commercial Speech, 71 Tex. L. Rev. 747 ( Mar. 1993).  There are also
several interesting and illuminating articles that focus on specific issues
or advertising contexts, including for example:  Michael Hoefges,
Protecting Tobacoo Advertising Under the Commericial Speech Doctrine:  The
Constitutional Impact of Lorillard Tobacco Co.,  8 Comm. Law & Pol'y 267
(2003);   Sean Costello, Strange Brew:  The State of Commercial Speech
Jurisprudence Before and After 44 Liquormart, Inc. v. Rhode Island, 47 Case
Western L. Rev. 681 (1997); Ronald Layer, Tobacco, Commercial Speech, and
Libertarian Values:  the End of the Line for Restrictions on
Advertising?  92 Amer. J. Public Health 356 (2002).
[4]  85 Colum. L. Rev. 449, 484-485 (1985).
[5]  Id. at 485.
[6]  316 U.S. 52 (1942).
[7]  425 U.S. 748 (1976).
[8]  447 U.S. 557 (1980).
[9]  316 U.S. at 52.
[10]  Id. at 53.
[11]  Id. at 54.
[12]  376 U.S. 254 (1964).
[13]  421 U.S. 809 (1975).
[14]  425 U.S. 748 (1976).
[15]  Id. at 760-761.
[16]  316 U.S. at 54.  Interestingly, in Chrestensen, the Court referred to
the evident intent of the tour operator to evade the regulations of the
city and used that intent as the rationale for upholding the regulation as
applied to him.
[17]  447 U.S. 557 (1980).
[18]  Id. at 561-63.
[19]  478 U. S. 328 (1986).
[20]  Id..
[21]  Id. At 340.
[22]  492 U. S. 469 (1989)
[23]  See, e.g.,  United States v. Edge Broadcasting, 509 U.S. 418
(1993)(relying on the Congressional interest in supporting non-lottery
states, the Court reversed lower court decisions and upheld a federal
statute that permitted only those broadcasters located in States with legal
lotteries to broadcast lottery advertising in the context of advertisements
for a Virginia lottery aired by a station located in North Carolina with
approximately 90% of its listeners in Virginia and 10% in North
Carolina);   Edenfield v. Fane, 507 U.S. 761 (1993)(striking Florida's ban
on in-person solicitation of clients by Certified Public Accountants as
unsupported by evidence of increased danger of fraud);  Florida Bar v. Went
For It, 515 U.S. 618 (1995)(upholding Florida Bar rules prohibiting
direct-mail solicitation by attorneys of personal injury victims within 30
days of injury, accident or disaster based on evidence of need to protect
privacy interests of victims and families as documented in Bar's two-year
study, and various hearing, surveys and public comments).
[24]  517 U.S. 484 (1996).  Justice Stevens delivered the opinion of the
Court, but essentially only with regard to the conclusion or result in the
case (i.e., that the 21st Amendment to the Constitution, repealing
prohibition, did not license the states to ignore the First
Amendment).  Justice Scalia, Thomas and O'Connor filed separate
concurrences.  Chief Justice Rehnquist, Justice Souter and Justice Breyer
joined in the concurring opinion of Justice O'Connor.  As shown above, one
needs a scorecard just to keep the players and opinions straight.
[25]  517 U.S. at 528-534.
[26]  A majority of the court did not join Justice Stevens in his
conclusion "that Posadas erroneously performed the First Amendment
analysis."  Id. at 509.
[27]  517 U.S. at 509.
[28]  Id. at 517-518.
[29]  Id. at 518-524.
[30]  527 U.S. 173 (1999).
[31]  866 F. Supp. 975 (1994) and 69 F. 3d 1296 (1995).
[32]  Id. at 1299.
[33]  572 U. S. at 182.
[34]  533 U.S. 525 (2001).
[35]  The Court did uphold the regulation requiring that retailers place
tobacco products behind a counter, requiring customers to have personal
contact with a salesperson before handling the products, however.
[36]  Id. at 571-572.
[37]  Id. at 572.
[38]  Id. at 590.
[39]  U.S. Brief of Petitioner, 2003 WL 898993.
[40]  A sampling of the news media coverage and press releases or reports
of various organizations concerning Nike and working conditions in its
Asian plants, as taken from the briefs submitted by the parties,
includes:  "Big Labor Rips Nike at Big PR's Annual Outing", O'Dwyer's PR
Services Report, July 1998;  "Nike Plant Conditions in Vietnam Hit in
Audit, Reuters", reprinted in Chicago Tribune, Nov. 10, 1997; William
Branigin, "Clinton, Garment Makers Hail Accord on Sweatshops: Critics Say
Pact Falls Short on Key Work Issues", Wash. Post, Apr. 15, 1997; Nike
Contractors Accused of Worker Abuse, Assoc. Press,  Mar. 29, 1997; Brad
Knickerbocker, "Nike Fights Full-Court Press on Labor Issue, Christian
Science Monitor", Sept. 23, 1997; Paula L. Green, "Nike, Jordan Challenged
on Conditions Indonesian Worker in Court Battle", J. of Commerce, July 25,
1996; Robin Bulman, Editorial, "Nike's Tainted Cash?", J. of Commerce, July
23, 1996;  Bob Herbert, "In America; Nike's Bad Neighborhood," N.Y. Times,
June 14, 1996.
[41]  Resp. Cal. S. Ct. Open Br. 3
[42]  Among the labor and other organizations publicly criticizing Nike
were:  the Made in the USA Foundation, an organization supported in large
part by labor unions; the Transnational Resource and Action Center, an
activist organization based in San Francisco; the Vietnam Labor Watch; the
Hong Kong Christian Industrial Committee; the AFL-CIO, including a youth
group and the president of that labor organization; and the Dong Nai
Confederation of Labor.  See U.S. Brief of Petitioner, 2003 WL 898993.
[43]  Id.
[44]  U.S. Brief of Petitioner, 2003 WL  898993.  The Young report is also
known as the report of Good Works International.
[45]  Id.
[46]  U.S. Brief of Respondent, 2003 WL1844849.
[47]  See generally New York Times v. Sullivan, 376 U.S. 254
(1974)(defining actual malice in context of libel action involving an
advertisement).
[48]  Cal. Bus. & Prof. Code 17200 et seq. (2003).
[49]  Cal. Bus. & Prof. Code 17500 et seq. (2003).
[50]  The complaint identified nine Nike communications:  a two-page letter
with the Nike logo from the company's director of Sports Marketing to
university presidents and athletic directors; a 33-page illustrated
pamphlet, entitled "Nike Production Primer;"  a Nike website posting with
its logo; a posted press release on the Nike website with the logo; a
three-page document on Nike letterhead with the logo; a press release with
the logo; a five-age letter with the logo from the Nike Director of Labor
Practices to the CEO of the YWCA of America; a two-page letter with the
logo from Nike's public relations manger for Europe to the International
Restructuring Education Network Europe; a letter to the editor of The New
York Times from Nike's Chairman and CEO.  The complaint also referred to
another letter from Nike to a leading California newspaper regarding the
jobs Nike has helped create throughout the world and encouraging Christmas
shoppers "to remember that Nike is the industry's leader in improving
factory conditions."  U.S. Brief of Respondent, 2003 WL 1844849.
[51]  Id.
[52]  Id.
[53]  Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854 (Cal. App. 1 Dist. 2000).
[54]  Id. at 860-61.
[55]  45 P.3d 243 (2002).
[56]  Id. at 261-262.
[57]  Id. at 260-262.
[58]  Id. at  263.
[59]  U.S. Brief of Respondent, 2003 WL 1844849.
[60]  45 P. 3d at 314-316.
[61]  U.S. Brief of Petitioner, 2003 WL 898993.
[62]  123 S.Ct. 2554 (2003).
[63]  123 S. Ct. at 2558-2559.
[64]  123 S.Ct. at 2569.
[65]  Id. at 2565.
[66]  Id. at 2567 (citations omitted).  Interestingly, Justice Stevens
acknowledged the issues concerning California's private attorney general
provisions under the Unfair Competition and False Advertising laws, but
found those issues to be further evidence of the novelty of the case and
the need for further development of the issue in the state courts. Id. at
FN. 5.
[67]  And, if Nike offers to sell a product or service which itself
amounted to political speech (e.g., abortions in a state allowing abortions
at a time when others did not), that, too would be a different matter.
[68]  U.S. Brief of Petitioner, 2003 WL 898993.
[69]  505 U.S. 377
[70]  __ U.S. __, 123 S.Ct. 1536 (2003)
[71]  St. Paul, Minnesota Legislative Code, Section 292.02 (1990).
[72]  Virginia Code Annotated, Section 18.2-423 (1996).
[73]  Of some note is the Court's lengthy discussion of the history of the
Klan and the symbolic meaning of a burning cross in American history.  123
S.Ct. at 1544-1547.  Obviously, there was a considerable difference between
a crudely built cross consisting of broken chair legs taped together by
teenagers in R.A.V. and the orchestrated Klan rally in Black with the far
more sophisticated and menacing cross that measured 25-to-30 feet in size.
[74]  This is not intended to suggest that some conduct should not be
deemed expressive and protected by the first amendment, as in such cases as
Texas v. Johnson, 491 U.S. 397 (1989) and Cohen v. California, 403 U.S. 15
(1971).  Rather, expressive conduct should be included within the scope of
the term "speech" as a subset of expression.  In fact, as argued below, the
approach of the courts to expressive conduct (i.e., the analysis employed
to determine whether the conduct is sufficiently expressive to  be within
the scope of the first amendment ­ as opposed to be mere conduct ­ offers
an approach to determining whether the speech is a commercial matter or a
first amendment matter).  See O"Brien v. United States, 391 U.S. 367 (1968).
[75]  425 U.S. 748 (1976); see discussion, supra.
[76]  421 U.S. 809 (1975); see discussion, supra.
[77]  This approach is substantially similar to that generally applied in
matters of conduct, from flag to cross burning, deemed expressive.  See
Texas v. Johnson, 491 U. S. 397 (1989); United States v. O'Brien, 391 U. S.
367 (1968).  This is distinguished, albeit with some potential confusion,
from speech deemed a form of conduct, including the unfortunately still
constitutionally viable notion of "fighting words."  See Terminiello v.
Chicago, 337 U.S. 1 (1949); Chaplinsky v. New Hampshire, 3215 U.S. 568
(1942).  The confusion arises as a result of the incoherence of "fighting
words" as a meaningful and identifiable category of speech to be excluded
from first amendment protection ­ as incoherent as commercial speech as a
category.  If one utters a epithet or burns a cross with intent to
intimidate and provoke a fight, there should be little difficulty in
prosecuting such an act, without becoming embroiled in debates over
categories of speech and the scope of the first amendment.  It is speech or
it is an assault. Unfortunately, the matter is further muddled by the
Supreme Court's reference to the Minnesota Supreme Court's use of "fighting
words" in an attempt to salvage St. Paul's hate speech ordinance.
[78]  2003 WL 2011021 (U.S. Ill.).
[79]  See Jeffrey Fisher, Nike v. Kasky: Will The Shield of the Commercial
Speech Doctrine Become the Sword?, 20-WTR Comm. Law 1 (Winter 2003).
[80]  With due deference to the pop-diva, Madonna, the lyrics are in part "
Living in a material world, I am a material girl."  Should current pop
music be deemed a questionable source for this otherwise self-evident
point, one need only harken back to Samuel Johnson, who said, according to
James Boswell's "The Life of Samuel Johnson, LL.D. (1791):  "No man but a
blockhead ever wrote except for money."  The point is there is no line
between commerce and speech, between the material pleasures of Madonna and
Nike or the ethereal arguments of Johnson and Boswell.
[81]  See STANLEY FISH, THERE'S NO SUCH THING AS FREE SPEECH 102-19 (1994).
[82]  45 P.3d at 261.
[83] See, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964).
[84]  The suggestion that the core of the commercial speech doctrine is
"speech that does 'no more than propose a commercial transaction.'" is
often cited, but rarely helpful.  See  Bolger v. Youngs Drug Products
Corp., 463 U.S. 60, 66 (1983), quoting Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc. 425 U.S. at 762, quoting
Pittsburgh Press Co. v. Human Relations Comm'n,  413 U.S. at 385.  If that
is the core of the doctrine, it is hallow or merely duplicative of other
laws that are not aimed at or preoccupied with expression apart from the act.