Professor David Vladeck,³³⁴ ever the highly able and dedicated consumer-interest advocate, cannot countenance the possibility that the logic of New York Times Co. v. Sullivan, or the logic of the Supreme Court’s commercial speech doctrine, should be extended to immunize false statements of the kind alleged in Nike. At the outset, he views New York Times as a weapon in the arsenal of the powerless, and not a cannon for corporations.³³⁵ And he understands hostility to false commercial speech to be the essential thread running through the entire line of commercial speech cases from Virginia Pharmacy onward.³³⁶ In the fighting spirit of the public-citizen activist, Vladeck scoffs at the idea that the “playing field” of public debate has to be leveled in the interests of a mega-corporation like Nike, “a company worth $20 billion, [that has] ample resources to ensure that its voice is heard.”³³⁷ Nonetheless, he appreciates the value of commercial speech to inform consumers and is willing to extend the protections of that doctrine to corporate speakers, albeit grudgingly.

Accordingly, should Vladeck be asked to represent consumer interests in our four hypotheticals,³³⁸ we presume that he would find only the “being Green” scenario a candidate for free speech protection, if only because Phil Knight’s statement is arguably not specific enough to trigger any real consumer reliance. Professor Vladeck is comfortable with the adversarial relationship between activists and corporate America. As a public-interest advocate, he is willing to sue and be sued without the First Amendment always keeping Nikes or Naders out of the courtroom.

Professor James Weinstein’s perspective shares aspects of the views held by other contributors to this Symposium, but ultimately his outlook on Nike is different than all of them.³³⁹ Agreeing with Baker, Weinstein opines that “ordinary business entities such as Nike are not the ultimate sovereigns in a democratic society, nor are they entities in need of the legitimizing function of free speech.”³⁴⁰ However, Weinstein parts company with Baker in according some First Amendment protection to corporate speech for instrumentalist reasons: particularly, to ensure information needed by individuals for democratic decision-making.³⁴¹ Likewise, while acknowledging the relevancy of the kind of format analysis performed by Johnson and Fisher, Weinstein distances himself from them as well: “[I]t would, I believe, be a mistake to give decisive weight to the presumption that [Nike’s] speech is public discourse just because it utilizes media essential to that dialogue.”³⁴² And although sharing La Fetra’s objections to California’s overbroad false-advertising regime, insofar as it facially prohibits literally true statements that mislead or deceive consumers and requires no finding that anyone was actually harmed,³⁴³ Weinstein will not join her in adopting the “extremely strong protection . . . provided by the New York Times ‘malice’ standard.”³⁴⁴

The Arizona State University law professor strikes out, in the end, on his own path of more moderate protection for corporate speech, the type accorded in defamation suits under the Gertz v. Welch standard.³⁴⁵ To prevent consumer protection laws from chilling true commercial speech in a viewpoint-discriminatory manner, the First Amendment should require, at least as to speech on matters of public concern, that a private plaintiff allege and prove: (i) the corporate speaker’s negligence in making false statements; (ii) actual reliance on those statements; and (iii) actual damages.³⁴⁶ On that basis, we venture that Professor Weinstein would have but one answer to all of our four hypotheticals: They are not factually nuanced enough to make a reasoned judgment on how they would fall under the Gertz standard. If we were sufficiently rash to guess what Weinstein would say on his most First Amendment-friendly days, we might conjecture that he would split the difference down the middle: detrimental reliance and actual harm are likely to doom Nike’s First Amendment defenses in the stockholders’ meeting and college coaches scenarios, but less likely to do so in the “V-Day” and “being Green” situations.

All of this is only our assessment of the articles that you are about to read. We may have, unintentionally of course, made a few misrepresentations of our own. If so, we throw ourselves on the mercy of you, our readers, our Symposium colleagues, and the palliative force of the First Amendment, if it comes to that. Ultimately, our best defense is that our informed readers are best suited to ferret out the truth