Document Type


Publication Date



The Supreme Court's recent dismissal, apparently on jurisdictional grounds, of the writ of certiorari it had granted to review Nike, Inc. v. Kasky has brought into sharp focus a number of critiques of the commercial speech doctrine - some new, some longstanding. At issue in Nike were communications Nike made to customers, newspaper editors, college presidents and athletic directors, and others responding to allegations that Nike had engaged in, or was complicit in, the mistreatment of foreign workers. Respondent Marc Kasky contended that Nike's communications contained significant misstatements of fact and thus were actionable under California's unfair competition and false advertising laws. Nike countered that, even if it had made factual misstatements, its communications were part of an ongoing public debate about the labor practices of multinational corporations generally and, for that reason, they were fully protected under the First Amendment. A sharply divided California Supreme Court rejected Nike's theory, but the United States Supreme Court agreed to review Nike's First Amendment claim. After full briefing and argument, a divided Court dismissed the writ as improvidently granted, much to the disappointment of Nike and its supporters who had forecast a Nike victory.

Publication Citation

54 Case W. Res. L. Rev. 1049-1089 (2004)