The Law’s Story

[I]t is one thing thus to say that a protest by a businessman against . . . mistreatment of himself in business affairs must be regarded as constitutionally protected free speech and quite another to say the same of the businessman’s circulars advertising for business.

-- Judge Jerome Frank⁵⁹

In 1942, a little known and long since forgotten Supreme Court Justice, Owen J. Roberts, wrote a then largely unimportant opinion for the Supreme Court. The case, Valentine v. Chrestensen,⁶⁰ involved the owner of a former United States Navy submarine who wanted to distribute handbills to invite the public to view his “$2,000,000 fighting monster” situated alongside a pier on the East River. New York City’s sanitation code, however, prohibited the distribution of commercial handbills. F.J. Chrestensen, the vessel’s owner, sued the city. The trial court and federal appellate courts sided with Chrestensen. The Supreme Court did not—by a 9-0 vote, no less. Buried in Justice Roberts’ otherwise unmemorable 750-word opinion for the Court was a memorable line:

[T]he Constitution imposes no . . . restraint[s] on government as respects purely commercial advertising.⁶¹

As a consequence, F.J. Chrestensen lost, since his speech was no longer deemed to be within the protected ambit of the First Amendment. The idea that commercial speech was entitled to no constitutional protection remained good law for over three decades. Then, thanks largely to Justice Harry Blackmun, commercial expression began to receive some First Amendment recognition in the 1970s. It was Blackmun who authored the opinion of the Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council⁶² that first identified social value in commercial speech and that inaugurated the modern era of First Amendment protection for much corporate communication.⁶³ Gradually, the level of protection increased to the point that, by 2003, a majority of the Justices was actively revising earlier precedents to safeguard many new forms of commercial expression.⁶⁴

Justice Blackmun helped launch the commercial speech revolution as a liberal cause, one consistent with the progressive tradition of Justice Louis Brandeis. That tradition valued the First Amendment as a tool of truth, one to be used to shed light on government wrongdoers and on the exploits of the wealthy and powerful. More recently, Justice Clarence Thomas embraced that cause as a libertarian one;⁶⁵ the First Amendment was merged with laissez-faire politics of the kind that maximizes corporate power while minimizing government regulation. And with that, many liberals feared, might come the return of a nineteenth-century perspective on capitalism that was once anathema to every progressive in America, from Louis Brandeis to Ralph Nader. The times and the law were changing. Still, the Court remained ambivalent about equating commercial speech with highly protected political speech.

The libertarian wing of the Court yearned for a case that combined the workings of commercial and political expression. But where could such a case be found? And who would bring it—all the way to Washington? Marc Kasky could be just that person and Kasky v. Nike could be just that case. No wonder, then, that in 1998, U.C. Berkeley law professor Edward Rubin said, “[t]his (lawsuit) could be a very important event.”⁶⁶ Indeed. But the road to the United States Supreme Court is a long and arduous one. For now, things had to play out at the state court level. Then, in time, an opportunity might come to take the case to the highest Court in the land.