The answer to the riddle confronting Nike lay in the italicized language. The Beaverton company’s statements, the trio would argue, did more than propose a commercial transaction; they addressed matters of social concern. If that were so, then the controversy before the Justices need not be tagged as one involving simply commercial speech. Once released from that categorical confine, Nike’s lawyers were free to turn to a more speech-protective standard, one akin to political expression and its accompanying constitutional safeguards. And, once they got to those constitutional shores, certain falsehoods could be protected. Voila! But first, they had to take several steps in their argument to get to that destination.

Step 1: Unless protected, corporate speech about public matters could readily be regulated: “It is literally impossible for a company to engage in public communication about itself on matters of social importance with any confidence that the population of California will be satisfied that the company’s disclosures are entirely truthful and complete.”¹²⁰ Absent substantial constitutional protection, virtually all corporate speech could be deemed commercial and therefore subject to Kasky-like actions.¹²¹

Step 2: Commercial expression must be defined narrowly. Speech like that employed by Nike is not commercial unless it “addresses the qualities of a product as such (like its price, availability, or suitability)” and appears in an “advertisement” or a “product label.”¹²²

Step 3: Seen in context, Nike’s speech was more than commercial; it was speech about a public matter. “This Court has ‘frequently reaffirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’”¹²³

Step 4: Such “special protection” includes protection for certain false or misleading statements. False statements of the kind made by Nike could be regulated provided there were certain constitutional safeguards—specifically, the “actual malice” standard of New York Times Co. v. Sullivan. In other words, if Nike were reckless in making false assertions or if it knowingly misstated the truth about such facts, then the trio would concede the possibility of liability.¹²⁴

Step 5: The New York Times standard of First Amendment protection must apply equally to corporate speakers. Any less protective standard would preclude corporations from ever engaging in political expression. Any other approach would cut “the heart out of the First Amendment’s protections for statements by commercial entities on nearly every public issue—from a company’s diversity policy to its community relations efforts to its political activities—all of which can be said to ‘matter in making consumer choices.’”¹²⁵ Moreover, there was ample reason for applying the New York Times test to Nike’s speech, the trio argued. While Nike could readily be held liable for its misstatements of fact, Kasky and his anti-corporate cohorts could only be held liable under the more demanding New York Times formula.¹²⁶