Freedom of speech is one of the most appreciated and valuable Constitutional rights of the citizens of this country. This right is also one that has gone through many changes that have been designed to not only benefit the greater society but also to strike a balance between differing factions of society. In more recent times, the United States Supreme Court has expanded the use of this right to commercial entities, calling this "commercial speech.". Commercial speech has been viewed as a limited right from its inception and has even been challenged in different cases. One case where the right of commercial speech was challenged was in Kasky v. Nike, Inc., 27 Cal.4th 939 (2002), where the issue was whether a commercial entity may use this right to disseminate misleading and deceptive information regarding its labor practices in other countries. According to the United States Supreme Court, commercial entities have "limited commercial speech" rights that receive Constitutional protection.
This paper will analyze the Kasky v. Nike, Inc (hereafter Nike) case. First, there will be a discussion and analysis of the historical development of commercial speech. This will be followed by an examination of the majority view of the case as well as an analysis of the dissenting viewpoint. Finally, there will be a discussion on commercial speech analyzing the social benefits of limiting commercial speech.
Creation of Freedom of Commercial Speech
The importance of freedom of expression can be found in the United States Constitution and California State Constitution. The U.S. CONST. amend. I, º 1., in relevant parts, provides, "Congress shall make no law respecting an establishmentà 'abridging the freedom of speech,' or of the press; or the right of the people." This fundamental right can similarly be found in CAL. CONST. art. I º 2(a)., which, in relevant parts, provides, "Every person may freely speak, write and publish his or her...