On the Wings of Nike: A Streamlined Approach to the Commercial Speech Doctrine
Cunningham, Anne, Freeman, Craig, Communications and the Law
"The commercial speech doctrine, in its current form, fails to account for the realities of a modern world--a world in which personal, political, and commercial arenas no longer have sharply defined boundaries." (1)
With increasing regularity, the Supreme Court's commercial speech doctrine has been challenged as unrealistic, unworkable, and outdated. (2) Lower courts remain constrained to follow the dictates of the doctrine, despite the fact that even some Supreme Court Justices find it unwieldy. (3) One central problem--how to identify commercial speech? While commentators have questioned the workability of the commercial speech doctrine, none has specifically addressed the problems created by the Bolger precedent used to determine when speech is commercial. Nor has anyone suggested, as we will, that the Court should presume that all public corporate communication is commercial speech. The elimination of the Bolger analysis leads courts directly to the more predictable Central Hudson analysis, granting clarity before advertising is produced as well as after it is "consumed."
As decision after decision is heaped on the shaky foundation of the doctrine's two-step approach, the time has come to determine an analysis that will yield a degree of surety for advertisers, while at the same time protecting consumers. The Supreme Court had an opportunity to address the issue in deciding on Nike's appeal to the California Supreme court's decision on Kasky v. Nike, Inc. The court noted that "[t]his 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." (4) Unfortunately the Court declined to weigh in on this novel issue, returning Kasky to the state court. (5) After hearing oral arguments and reviewing the 34 briefs filed on the issue, the Supreme Court dismissed its writ of certiorari as improvidently granted. This is unfortunate because Kasky had the potential to become a landmark decision but, because Nike recently settled, (6) the case will not make its way back to the Supreme Court. It seems the Supreme Court has merely postponed the inevitable; a ruling on how public relations will fit into the framework of the commercial speech doctrine. We offer a remedy to the current confusion in deciding this problematic issue in the law. Our solution exists within the framework of the current commercial speech doctrine: eliminate the initial assessment of commercial content--kill Bolger.
A BRIEF HISTORY OF THE COMMERCIAL SPEECH DOCTRINE
Historically, the Supreme Court has adhered to a "two level" theory of free expression under the First Amendment. "Speech is either 'protected' or 'unprotected' by the first amendment according to the court's assessment of its relative 'value.'" (7) The Court considers some speech to be of little or no value regardless of the message it conveys--noisy speech near a hospital, for example--while other speech loses its value because of its content. (8) This theory is rooted in the dictum of Chaplinsky v. New Hampshire, which states, "[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." (9) Since 1942 the Court has considered commercial communication to fall into the category of "low value" speech, (10)
Having determined that some classes of speech are more valuable than others, the Court has applied different standards in reviewing regulations placed on speech. The standard applied has been based on the nature of the speech. Any regulation that limits fully protected speech such as political speech and the press receives strict scrutiny--the highest level of protection under the Constitution. Regulations on commercial and other "low value" speech regulations, on the other hand, receive less review. …