To illustrate the particularity of Breyer’s and O’Connor’s standard, consider what might have happened, for example, if the third factor were missing, and the same action had been brought by the California Attorney General.²³⁰ Would Breyer and O’Connor nonetheless have protected Nike’s speech under heightened scrutiny review? Recall that Breyer believes that only when “all three” circumstances “are present” does “the First Amendment demand[] heightened scrutiny.”²³¹ In essence, Justice Breyer’s dissent is hardly a clarion call for enhanced protection of commercial speech. Rather, once broken down, its test—if one can call it that—seems to apply to the facts of this case, and this case only. Perhaps that explains why Justice Thomas did not sign on to the standard endorsed by Justices Breyer and O’Connor, two of the weakest defenders of First Amendment liberties on the Rehnquist Court.²³²

In contrast to the dissenters, the concurring Justices would not judge the merits of Nike’s free-speech claims; however, they were willing to sketch out their views on the merits of what they thought to be an important issue. Notwithstanding precedents such as Bigelow²³³ and Consolidated Edison,²³⁴ such a “blending” of commercial and noncommercial speech nevertheless seemed to the concurring Justices to place Nike in a special category, one not heretofore examined by the Court and, therefore, not directly controlled by existing doctrine. That such blending occurred in the context of a “debate on an issue of public importance” also suggested that at least three Justices might be receptive to fashioning a rule more speech-protective than the Central Hudson four-pronged test.²³⁵ Then again, the same three also had concerns of a notably different order:

On the one hand, if the allegations of the complaint are true, direct communications with customers and potential customers that were intended to generate sales—and possibly to maintain or enhance the market value of Nike's stock—contained significant factual misstatements. The regulatory interest in protecting market participants from being misled by such misstatements is of the highest order. That is why we have broadly (perhaps over broadly) stated that “there is no constitutional value in false statements of fact.”²³⁶

Part of what is telling about this last statement is the concern the trio expressed for “market participants.” At the outset, it may be noteworthy that Justice Stevens did not invoke the more familiar term consumer,²³⁷ but instead tapped Commerce Clause terminology.²³⁸ This raises the question, and perhaps it is only that, of whether those in need of protection, albeit of the “highest order,” are not merely those who consume a particular product but also those who go into the marketplace to receive information. That they participate in that marketplace is sufficient, even if they do not consume any given product, to trigger the state’s interest in protecting them from misleading statements. Is this but another way of saying that their interest (like that of Marc Kasky) does not depend on a showing of some kind of particularized harm as consumers? And note that such marketplace paternalism is a matter of the “highest order” and therefore trumps all other concerns, including those involving free speech.