Sensitive to that very concern, the Public Citizen brief suggested that if the Court were to treat Nike’s statements as something other than commercial speech subject to regulation, such a ruling would have a profound and even detrimental impact on consumer welfare:
[T]o give full First Amendment protection to Nike’s marketing speech merely because it appeals to consumers based on social or political preferences would require the Court to engage in difficult and unjustified line-drawing concerning a vast array of consumer choices. Many product characteristics that do not directly affect consumers are accepted bases for marketing and purchasing products. For example, federal law requires that products bearing the label “Made in USA” must in fact have been made in the United States. Consumers look for such labels based in part on a belief that U.S.-made products will be produced in compliance with labor-friendly wage, labor, or health and safety laws. Surely, consumer purchasing choices influenced by this label are no different from consumer choices influenced by whether a product is made according to the production characteristics touted in Nike’s statements.168
Their argument continued:
Similarly, a consumer’s choice when buying an automobile may be influenced by concern about the environmental effect of vehicle emissions—for example, some people pay more for hybrid cars because they produce fewer emissions. Under Nike’s theory, however, public debate over whether vehicle emissions increase global warming would warrant extending First Amendment protection to an auto manufacturer’s false marketing claims about reduced emissions from its vehicles. Other examples of product claims regarding characteristics that do not bear directly on tangible product characteristics, but unquestionably affect purchasing decisions, include “dolphin-free” tuna (tuna caught using nets that do not harm dolphins), “green” labels indicating products produced in ways that meet certain environmental standards, products bearing a “union label,” and representations that products were not tested on animals.169
Such arguments could very much influence the way the Justices approached the central free-speech issue in the case: namely, the definition of commercial speech.
