Nike, Inc. v. Kasky, 123 S.Ct. 2554, 156 L.Ed.2d 580 (2003).

First Amendment protection of corporate speech remains an open question after the United States Supreme Court’s dismissal of Nike’s appeal in a closely-watched case.  Nike had issued press releases, letters to newspaper editors, customers, and nongovernmental organizations, and other publications explaining and defending its treatment of foreign workers.  Some of Nike’s statements reached California consumers, including plaintiff Marc Kasky.  Kasky sued under California’s unfair advertising and unfair competition laws, alleging that Nike’s statements were false and misleading.  Nike moved to dismiss the law suit on First Amendment grounds.  The trial court and the court of appeal allowed Nike’s motion to dismiss, but the California Supreme Court reversed, holding that the statements were commercial speech because they served the purpose of promoting sales of Nike’s products.  Nike argued that corporate statements on matters of public interest are not commercial speech, even if they could also influence consumers’ purchasing decisions, and therefore that its statements should be protected by the strict scrutiny standard applicable to content-based regulation of non-commercial speech under the First Amendment.  Nevertheless, the California Supreme Court concluded that Nike’s statements were entitled to less constitutional protection, and that California could regulate or prohibit the speech if it were false or misleading. The United States Supreme Court granted certiorari, and NELF joined the amicus brief of Pacific Legal Foundation.  NELF and PLF argued that corporate speech, such as Nike’s statements in this case, frequently addresses issues of public concern beyond the mere selling of a product or service.  The commercial speech doctrine has yielded highly confusing and unpredictable results that can chill protected speech. This doctrinal confusion is likely to continue, the brief argues, as corporations develop increasingly innovative and nontraditional means of communicating positions on a wide range of public and business issues. On June 26, 2003 the United States Supreme Court dismissed the writ as “improvidently granted.” A concurring opinion from Justice Stevens explained that it was inappropriate for the Court to take the case because the state court decision was not a final judgment; because neither party had Article III standing to invoke the jurisdiction of the federal courts; and because the First Amendment issues would benefit from a full, factual trial record rather than a review of mere unproven allegations. Justices Kennedy, Breyer, and O’Connor dissented from the dismissal.