As we read Deborah La Fetra’s article, she may well accord with Johnson and Fisher’s results for the four hypotheticals, but for content-based, not format-based, reasons.³¹⁷ The libertarian La Fetra values the content of corporate speech for the diversity that it adds to public debates: “Corporate speech counteracts the dominance of the few media megacorporations, and of government officials who can command free access to the press and other means of disseminating information merely by virtue of their position.”³¹⁸ Moreover, she appreciates that our contemporary speech culture is a tossed salad of the political and the profitable. With product placements,³¹⁹ sponsorships,³²⁰ testimonials,³²¹ virtual advertising,³²² guerrilla marketing,³²³ and corporate image advertising,³²⁴ the line between commercial and non-commercial speech has blurred almost beyond recognition.

For La Fetra, a vibrant First Amendment demands full constitutional protection of all corporate expression, except that which can be regulated by narrow consumer fraud statutes. “The critical point,” she explains, “is that while the seller is free to make true, false, or misleading claims, he will be liable if buyers rely on those claims to make purchases.”³²⁵ We wonder whether, given her consumer fraud exception, La Fetra might agonize a bit over the stockholders’ meeting and college coach scenarios. Are they regulated cases of buyer reliance on false claims to make purchases? Or, considering her core belief in the capability of consumers “to separate the wheat from the chaff”³²⁶ in public debates over significant social issues, would La Fetra be more likely to analyze those two scenarios along the lines of Johnson and Fisher’s rationales as we have presented them?

For Professor Robert O’Neil,³²⁷ the touchstone for analysis, beyond other considerations, is “the message’s impact upon [the] audience.”³²⁸ In that respect, context is crucial. More specifically, O’Neil holds, we are to determine how a particular corporate statement affects a consumer’s “immediate judgment whether or not to buy the product or service.”³²⁹ If the “potential value of the message” goes beyond that immediate judgment,³³⁰“the fact that a consumer may be favorably (or unfavorably) disposed to buy on the basis of such information should not, by itself, cause the message to be classified as commercial speech.”³³¹ Let us try our philosophic best to apply this formula to our scenarios.

It is safe to speculate that O’Neil, like Johnson and Fisher and La Fetra, would grant full First Amendment protection to the “V-Day” and the “being Green” scenarios, because the speech in question is far removed “from any immediate or specific sales pitch.”³³² Surely, equally uncomplicated for O’Neil is the college coach scenario; we assume that he would deem the communications to be constitutionally unprotected given the speaker, context, and immediate impact on the audience. The stockholders’ meeting example strikes us as somewhat more challenging for him. On the one hand, O’Neil contends that when the same statements were made in the Nike case, they amounted to protected expression. On the other hand, would the stockholder audience and meeting context be enough to change his conclusion? Any misrepresentations, after all, are likely to have an impact upon that audience’s decisions as to retaining or selling the company’s stock. If the stockholders rely on such statements, they do so to their economic detriment. Are the statements, then, comparable to the “immediate or specific sales pitch to which a commercial speech classification appropriately follows?”³³³