The key question, beyond the nagging jurisdictional one for Nike, was simple to pose, but difficult to answer: What is commercial speech? Is it no more than speech that proposes a commercial transaction? If so, what does it mean to propose a commercial transaction? How specific does the proposal have to be, how distant does the hoped-for transaction have to be?
Professors Chemerinsky and Fisk offered this definitional answer to those questions in the amicus brief they filed with the Supreme Court:
[T]his Court has identified three characteristics that distinguish commercial from noncommercial speech: (1) whether the communication is an advertisement; (2) whether it concerns a product; and (3) whether the speaker has an economic motivation. In addition, this Court has explicitly held that the fact that the speech concerns public issues is not sufficient to take it out of the realm of commercial speech for to do so would enable a company “to immunize false or misleading product information from government regulation simply by including references to public issues.”170
By contrast, Professor Robert O’Neil argued in his amicus brief that there was no definitional problem because there was no commercial speech, properly understood:
The ruling of the [California Supreme] court below reflects a dangerously truncated interpretation and application of the doctrine of commercial speech; it presumes that statements which might enhance the appeal of commercial products (even though focused on the speaker’s “operations” rather than on products per se) must for that reason be treated as “commercial speech” and thus receive substantially lesser First Amendment protection. To the contrary, many judgments of this Court recognize that not all statements which may pertain to a commercial product, or which may be of interest to consumers of that product, are properly classified as commercial speech and for that reason deprived of full constitutional protection.171
Despite the flurry of interest—editorial, scholarly, lawyerly, and judicial—in the First Amendment issues raised by the Nike case, the gatekeeper issue was the jurisdictional one. On that score, more than half of Paul Hoeber’s reply brief addressed threshold procedural issues,172 buttressed by forceful analytical and doctrinal support by the amicus briefs submitted by Alan Morrison, David Vladeck and their colleagues at Public Citizen,173 and by Erwin Chemerinsky and Catherine Fisk in their brief on behalf of four members of Congress.174 After all, this was the Respondent’s best argument. Then again, the Court did grant review in the case; not a good omen for the lawyers who challenged the Court’s jurisdiction. Was that the end of the matter? Or could Paul Hoeber and his amicus allies turn things around? Could they persuade the Justices to reconsider the issue during oral arguments? In sports vernacular, it was akin to making a turn-around jump shot.
