Profits, Politics, and the Promise of Free Speech: Defining Commercial Speech after Nike V. Kasky

Abstract

As consumer demands become more sophisticated, companies like Nike, Wal-Mart and McDonald's seek to carve out a corporate identity that will separate them from their competitors. These corporations adopt marketing strategies that align their brand image with political ideology in the hopes of reaching a demographic similarly aligned with those beliefs. Yet when a corporation takes a stand on a political issue, courts have not agreed on whether such expression constitutes commercial or political speech. The distinction makes a difference: commercial speech, as a medium of expression motivated by profits, has been deemed less worthy of First Amendment protection than political speech. In this Note, the author traces the development of the commercial speech distinction from its origins up to the recent Nike v. Kasky case, which illustrated the seemingly inevitable clash between commercial and political speech. The author then proposes a proof scheme that would facilitate the distinction. Finally, the author offers a justification for continued adherence to the distinction in the interest of consumer protection.

Keywords: commercial speech, political speech, free speech, first amendment, law