In 2003, the United States Supreme Court remanded (sent back to the lower courts) the case of Nike v. Kasky on procedural grounds, thus leaving open the debate on what exactly constitutes commercial speech. The case arose from Nike’s making of “allegedly” false and misleading statements when responding to critics of its overseas labor practices. The Nike Corporation claimed that its public statements defending allegations of “sweatshop” practices in their overseas operations should be accorded First Amendment protection. The plaintiff, Kasky, claimed that these statements were “commercial speech,” which can be regulated (in California, where the case was brought, commercial speech can be found to be false advertising if it is deceptive). Do you think Nike’s statements fall into the category of commercial speech or unfettered (pure) political speech? What does the lack of a definitive answer from the Supreme Court tells businesses about future public statements or claims by them regarding their operations? Do you believe the Supreme Court’s remand, without a decision on the merits, will have any type of “chilling effect” on businesses? Should companies’ public-relations campaigns be protected under the First Amendment? Discuss and debate!
