What, then, about our own reactions to the four scenarios? Before proceeding directly to our answers, we think it wise to first enter a few comments and admissions into the record. As we have said, Nike’s actions are difficult to gauge in First Amendment terms because in modern America, the enterprise of marketing has moved significantly away from product-information advertising to messages enhancing product images and corporate identity. In this tumbling of commerce and communication, we are, to borrow from Madonna, “living in a material world.”347 Our entire culture has been commercialized. As a result, it is difficult to determine exactly what one is buying, exactly when a communication is false, or exactly when one has suffered a legal harm. It is also increasingly difficult to separate the wheat of political expression from the chaff of commercial expression.348 We think, as we wrote in The Death of Discourse, that this has consequences for the law.
If we lean more towards encouraging expression and less towards endorsing regulation, it is because of the fear that in a highly commercial culture we cannot “get” them, those corporate “liars,” without, at the same time, undermining much of what we value in modern America. Moreover, we have a certain faith in the “Fourth Estate” to help purify some of the pollution that corporate speakers pour into our culture by way of false or misleading messages. Granted, we cannot expect the press always to be as vigilant and hard-hitting as it was in the Nike case. That is one reason we think it vital for our constitutional law to fortify dissent, as we suggest below. Doing so might buttress the forces ready and able to counter, when necessary, corporate falsehoods of the kind alleged in Nike.349
By reinforcing the First Amendment, we trust that our society will be the better for it. Still, like Holmes, we realize that much of this is, at best, but “an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”350 Indeed. Mindful of that wager, here are our preliminary thoughts on the hypotheticals.
The V-Day press conference is a good example of the new style of corporate communication. Does it signify an innovative and welcome kind of corporate “consciousness?” Or does it represent nothing more than a crass attempt to boost corporate image and thereby increase corporate profits? Or is it both? In the example, does the company by its announcement put itself on record to change its own deplorable practices, or is this no more than an attempt to cover-up a brutal truth? This kind of statement strikes us as political fare, though we grant it may have commercial consequences. One may, understandably, peg her decision to buy Nike products based on the truth or falsity of such generalized announcements. After all, for years many Americans did not purchase iceberg lettuce because agricultural companies allegedly mistreated migrant farm workers. Clearly, if the companies could convince them otherwise, that could affect consumer choices.
Part of what troubles us about permitting Marc Kasky to regulate such expression is that it virtually denies the possibility of any corporate speech being characterized as political. On that score, what Kasky’s lawyers wrote in their brief to the U.S. Supreme Court bears repeating: “It is true that almost anything a company does or says may have an economic motivation, whether the company is building a new plant or supporting favorable legislation, and thus may ultimately serve the purpose of ‘promoting sales of its products.’”351 This is, we believe, just another way of saying that there is no such thing as constitutionally protected corporate speech. It is Professor Baker’s theory woven into the fabric of our law. Considering our reservations about his theory, we think there is insufficient evidence in this hypothetical to set aside a First Amendment defense. Then again, if the facts and the harm more closely approximated those in the college coaches’ hypothetical, analyzed below, we might reach a different conclusion.
