Still, only Justices Breyer and O’Connor were willing to take up a lance for First Amendment protection of Nike’s communications. Essentially, the two Justices rejected a bright-lined categorical approach for analysis of commercial expression. They challenged the traditional doctrinal dichotomy between political and commercial speech as insufficiently nuanced to provide adequate constitutional safeguard for Nike’s public-issue-oriented discourse.
Although Justice Breyer’s dissenting opinion did not invoke the analogy, his thinking is reminiscent of what the Court has demanded in obscenity cases: that a work be “taken as a whole” to be deemed obscene.221 As heightened scrutiny is required where sexual expression commingles with valuable literary, artistic, scientific, or political expression, by a similar logic Breyer and O’Connor would have applied a “public-speech principle” to accord heightened scrutiny in cases where commercial expression commingles with valuable public speech.222 The dissenters’ “public-speech principle,” however, was significantly different from the commingling analysis in the obscenity context, as the mere mixture of commercial and non-commercial speech would not alone trigger heightened scrutiny. Rather, Breyer’s opinion identified “three sets of circumstances” that must all be present for Nike-like communications to be protected: predominantly non-commercial “circumstances of format, content, and regulatory context.”223
Analyzing “[t]he document least likely to warrant protection,”224 the Nike letter to university presidents and athletic directors, Breyer found that it deserved full First Amendment protection under his three-sets-of-circumstances standard. First, the letter appeared “outside a traditional advertising format, such as a brief television or newspaper advertisement.”225 Second, the letter’s content concerned matters of “significant public interest” and conveyed factual details related to an active public controversy. “In particular,” Breyer wrote, “the letter describes Nike’s labor practices and responds to criticism of those practices, and it does so because those practices themselves play an important role in an existing public debate.”226 As such, Nike’s statements must be distinguished from those that are purely commercial: “The speech here is unlike speech—say, the words ‘dolphin-safe tuna’—that commonly appears in more traditional advertising or labeling contexts. And it is unlike instances of speech where a communication’s contribution to public debate is peripheral, not central.”227 Third, the regulatory context element in Breyer’s standard was tailor-made for the Nike case. Echoing what Solicitor General Olson had argued before the Court,228 Breyer noted that “the regulatory regime at issue here differs from traditional speech regulation in its use of private attorneys general authorized to impose ‘false advertising’ liability even though they themselves have suffered no harm.”229
