Kick it Up a Notch: First Amendment Protection for Commercial Speech, in Symposium: Nike V. Kasky and the Modern Commercial Speech Doctrine

Abstract

In Kasky v. Nike, the California Supreme Court held that Nike's image-building public relations campaign in response to allegations of overseas sweatshop labor was not protected under the First Amendment to the United States Constitution, but instead was commercial speech susceptible to legal challenge under California's Unfair Competition Law. This Article argues in favor of full First Amendment protection for corporate speech on two fundamental grounds. First, corporations and other business interests play a vital role in the American political economy, thus imbuing corporate speech with inherent value in our democratic society. Rather than treating such speech as a hostile intruder in public debate, it should be embraced as presenting a point of view that may otherwise remain unexpressed. Second, the line between commercial and noncommercial speech is becoming indistinguishable with new technologies and innovative marketing strategies introducing corporate profit-motive into otherwise fully protected speech. The current commercial speech doctrine cannot predictably resolve disputes resulting from these new modes of expression.

Keywords: unfair competition, First Amendment, commercial speech

JEL Classification: K10