Professors Erwin Chemerinsky and Catherine Fisk³⁰³ would, we gather, reach the same result on all four hypotheticals as does Professor Baker, though by a different analytical route. For them, corporate speech can be entitled to First Amendment protection. But in Nike, as in the four scenarios, the Bolger test,³⁰⁴ correctly applied, defeats all First Amendment claims.³⁰⁵ “Consumers who are misled about which companies to patronize suffer a commercial harm within the meaning of this Court’s precedents,”³⁰⁶ argue Chemerinsky and Fisk.

The First Amendment should grant no less protection to consumers who avoid beef produced under certain conditions for fear of ‘mad cow’ disease than those who avoid beef out of concerns for the welfare of cows or of those who raise and slaughter them. . . . Their motives for buying or eschewing products are irrelevant; false factual statements that might influence their buying are commercial harms and they are well within the power of states to regulate.³⁰⁷

Importantly, Chemerinsky and Fisk consider the format of expression—paid advertisements vs. letters to newspapers—to be irrelevant in distinguishing commercial speech.³⁰⁸

By contrast, for Bruce Johnson and Jeffrey Fisher, format is “the key to identifying commercial speech”³⁰⁹ entitled to less First Amendment protection. With neo-McLuhanite attention to the nature of a medium rather than the content of a message,³¹⁰ they argue that corporate speech is commercial when it occurs “in direct proximity to consumers’ purchasing decisions, e.g., speech that proposes a commercial transaction on a product label, advertisement, or similar format.”³¹¹ In contrast, “speech offered in a public debate regarding a company’s corporate citizenship or otherwise at least one step removed from actual purchasing decisions” should be accorded full First Amendment protection.³¹²

The rationale for such a format-based distinction is that “assertions about products and services that are made in the commercial marketplace rarely afford consumers significant time or ability to scrutinize their truthfulness,”³¹³ and may not as likely be vetted by media inquiries during the kind of “fast-developing public debate” that existed in Nike.³¹⁴ Given this rationale, we surmise that Johnson and Fisher’s answers to the four hypotheticals would go in exactly the opposite direction of Kasky, Baker, Chemerinsky and Fisk. Johnson and Fisher surely would extend full First Amendment protection in the “V-Day” and “being Green” cases. And, arguably, they would not treat either the stockholders’ meeting scenario or the college coach example any differently. In both situations, Nike’s misrepresentations are not made in a direct advertising format,³¹⁵ and appear to be “one step removed” from actual decisions to buy stock or shoes.³¹⁶ Additionally, since the hypotheticals assume the same background facts as in the Nike controversy prior to litigation, the misrepresentations are caught up in the swirl of intense media coverage over the veracity of the company’s claims.