Being Green  on Larry King has several indicators of a message that is more political than commercial. For example, as Johnson and Fisher would note, Phil Knight s comment did not occur in a traditional advertising format. Furthermore, it is a generalized statement about corporate sentiments, rather than a particularized and factually verifiable statement about a product. Moreover, since the investigative reporter s findings come later, it is hard to appreciate how Knight s commentary would foster any reasonable reliance by consumers that might lead to actionable harm. It resonates, for us, with the notion of commercial puffery. Thus, we would extend First Amendment protection in this hypothetical. To put ourselves out on a limb, our answer would be the same even if Knight s statement came after the newspaper report, for reasons similar to the ones given above for the V-Day  scenario. In some respects, our reworking here of the being Green  hypothetical reintroduces the Nike case itself.

To be clear, the stockholders  meeting hypothetical assumes all of the facts in Nike before litigation plus statements made to stockholders. Were the declarations to stockholders the only communications that Nike had made about its labor practices, we would conclude, as we do below for the college coaches scenario, that the stockholders  detrimental reliance and resulting harm would be real, reasonable, and substantial enough to permit governmental regulation without constitutional impediment. But, as it is written, the hypo is more challenging for us. On the one hand, if Nike s statements outside of the meeting room are to be classified as protected speech, why should they be reclassified, and lose that protection, simply because they were made inside the meeting room? On the other hand, Nike s alleged misrepresentations inside the meeting room arguably are more proximately connected to the stockholders  transactional decisions and, hence, to their actual harm. Ultimately, we sign on to Johnson and Fisher s reasoning for this hypothetical, for it strikes us as implausible that the media tornado raging around the Nike dispute was not sufficiently forceful, indeed ferocious at times, to provide stockholders with adequate counterspeech to curb their reliance on Nike s representations at the meeting. This is exactly where the rubber hits the road for those who place their faith in the First Amendment.

For us, the college coach hypothetical must cut in favor of regulation, given the probable, foreseeable, and cognizable harm that would surely result from Nike s representations. In other words, the college coaches  purchases of Nike products are predicated on the company s assurances about working conditions in its foreign factories. Since the hypothetical very much resembles a contractual barter, or even a case of detrimental reliance, there must be a remedy, lest fraud is countenanced. Change the parties, context, and reliance, and the result could easily be different.

The Nike definitional problem what exactly is commercial speech? will not go away. It is one created by our commercial culture. So it is inevitable, as if prophesized in a myth, that some child of Nike will one day come to the high Court. When it does, will the Justices simply reaffirm the Bolger test or will they reconfigure it? Or will they draw on the insights offered by one, several, or all of the articles in this Symposium to develop a new test? And when the old test is reaffirmed or reconfigured or rejected, will they protect corporate expression beyond the borders of Central Hudson and toward the horizon of New York Times Co. v. Sullivan? Should that come to pass, what will inform the Court s decision to follow the path it does? Mindful of that question, we proceed to the final section of this Foreword.