Given that standard, it clearly followed that Nike could never prevail. After all, Nike was a manufacturer of a product, Nike’s audience included many past and potential buyers or customers, and Nike was making factual representations about its own business practices. “The wages paid to the factories’ employees, the hours they work, the way they are treated, and whether the environmental conditions under which they work violate local health and safety laws,” Justice Kennard reasoned, were all topics on which “Nike was in a position to readily verify the truth of any factual assertions it made.”95
Remarkably, the California high court considered it irrelevant whether Nike’s declarations had been infused into a current and significant public debate on multinational corporate sweatshops in Southeast Asia. “For purposes of categorizing Nike’s speech as commercial or noncommercial,” Kennard wrote, “it does not matter that Nike was responding to charges publicly raised by others and was thereby participating in a public debate.”96 As if she were adjudging the obscenity of films that opened with the obligatory statements by psychologists or doctors attesting to the social value of sex education, Kennard argued that Nike could not “immunize” any deceptive data about its products from governmental regulation “simply by including references to public issues.”97 Should the risk of exposure to legal liability “make Nike more cautious, and cause it to make greater efforts to verify the truth of its statements,”98 that would be so much the better. Then, the California consumer protection laws would only be serving their purposes, the Court concluded, by “insuring that the stream of commercial information flow[s] cleanly as well as freely.”99
The dissenting opinions, written by Justices Ming W. Chin (joined by Baxter) and Brown, were incredulous over the ill-considered and unconstitutional handicap that the majority had placed on Nike when engaging in a public controversy over its production practices. “While Nike’s critics have taken full advantage of their right to ‘uninhibited, robust, and wide-open’ debate,” Chin wrote, “the same cannot be said of Nike, the object of their ire. When Nike tries to defend itself from these attacks, the majority denies it the same First Amendment protection Nike’s critics enjoy.”100 The Court had refused, Chin argued, “to honor a fundamental commitment and guarantee that both sides in a public debate may compete vigorously—and equally—in the marketplace of ideas.”101
Similarly, Justice Brown’s dissent railed again the majority’s three-part test and its application to Nike for violating fundamental principles of First Amendment jurisprudence. Not only did the test, in her mind, fail to clarify the commercial speech doctrine, but it also “favors some speakers over others” in today’s culture of commerce and communication.102“With the growth of commercialism, the politicization of commercial interests, and the increasing sophistication of commercial advertising over the past century,” Brown observed, “the gap between commercial and noncommercial speech is rapidly shrinking.”103 Only by applying heightened scrutiny, for fully protected communication, to “inextricably intertwined” commercial and non-commercial expression would the Court “account for the realities of the modern world.”104 Instead, the majority unfortunately had opted for “singling out speakers engaged in commerce and restricting their ability to participate in the public debate.”105 As such, the Court’s decision had violated the first principles of the American free-speech system. “The First Amendment does not permit favoritism toward a certain speaker,” Brown concluded, “‘based on the identity of the interests that [the speaker] may represent.’”106
