Silencing Corporate Speakers: The California Supreme Court's Broad New Definition of Commercial Speech Goes Unchecked
Baty, Mary, Journal of Corporation Law
Society places a high value on the freedom of speech1 and the U.S. Supreme Court has developed a jurisprudence that is highly protective of the freedom of speech.2 Yet not all speech is entitled to equal treatment under the Constitution. The U.S. Supreme Court has carved out entirely unprotected categories of speech and extended only lesser protection to other categories.3 The result is a rough hierarchy in which "[c]ore political speech occupies the highest, most protected position; commercial speech and non obscene, sexually explicit speech . .. [are in the middle] ... as sort of second-class expression; [and] obscenity and fighting words receive the least protection of all."4 This Note will explore the commercial speech5 doctrine. It will do so in light of the following: 1) the U.S. Supreme Court's commercial speech jurisprudence; 2) the California Supreme Court's decision in Kasky v. Nike;6 3) the U.S. Supreme Court's dismissal of the writ of certiorari in the case; and 4) Nike's decision to settle with Kasky rather than pursue the case further in the California courts. This Note focuses on the Kasky case because the case strained and further confused7 the distinction between commercial and noncommercial speech. This, however, was bound to happen in a world where advertising "is more and more an art form instead of a direct proposal"8 to sell product X at price Y.9 The question in Kasky was whether various statements Nike made in response to criticism of its labor practices were commercial speech and therefore subject to California's unfair competition and false advertising laws. In answering this question, the California Supreme Court developed a broad new definition of commercial speech and concluded that Nike's speech was commercial. This Note finds that the rationales traditionally offered to justify lesser protection for commercial speech do not justify the sweeping limitations imposed on corporate speech by the broad definition of the California Supreme Court. This Note recommends, in light of the underlying facts of Kasky, a narrow definition of corporate speech-a definition that only encompasses speech proposing a commercial transaction or speech regarding price, quality, availability, or suitability of products or services.
A. Bigelow v. Virginia: The Beginning of a New Trend
Bigelow v. Virginia10 was the first time the U.S. Supreme Court had addressed commercial speech since Chrestensen v. Chrestensen.11 In Chrestensen, the Court expressed the traditional view that advertising is not protected by the First Amendment, holding that a New York City ordinance banning commercial handbills was a "reasonable regulation of the manner in which commercial advertising [can] be distributed."12 In Bigelow, however, the Court was adamant that Chrestensen "[did] not support any sweeping proposition that advertising is unprotected per se."13 The Court insisted that the holding of Chrestensen was limited and did not support the proposition that statutes regulating commercial speech are "immune from constitutional challenge."14
In reversing Bigelow's criminal conviction under a Virginia statute for running an advertisement in his newspaper for an abortion referral service in New York, the Court said that advertisements are not like fighting words and obscenity, which are forms of speech without constitutional protection.15 "[T]He relationship of speech to the marketplace of products . . . does not make it valueless in the marketplace of ideas."16 Instead, the extent of protection afforded depends upon the "value" of the speech vis à vis the public interest allegedly served by the regulation.17 Because of the "diverse motives, means, and messages" conveyed by advertising, some advertisements are more "commercial" than others. Thus the level of protection afforded advertisements may vary depending on the circumstances and the type of regulation.18
B. Extending First Amendment Protection to Purely Commercial Speech: Virginia State Board of Pharmacy v. …