The U.S. Supreme Court recently heard a case over whether or not Nike's publicity campaign (consisting of brochures and letters to newspaper editors and college deans, among others) defending itself against allegations that it used overseas sweatshops constitutes commercial speech. Commercial speech, unlike political speech, is subject to substantial regulation, including state truth-in-advertising laws. A California resident sued Nike for violating California's truth-in-advertising laws, and California's Supreme Court -- reviewing the case on the assumption that Nike's speech was indeed untrue -- agreed.
The difficulty facing the U.S. Supreme Court -- and the difficulty that faced the lower courts -- is where to draw the line between political speech, which ought to be strongly protected, and commerical speech, which is entitled to less protection. This distinction is partcularly hard to make with respect to corporations, whose sole purpose for existing is to make money. Unpopular as it may be, I think it would be appropriate for the Supreme Court to draw a bright line in this case and characterize all corporate speech as commercial speech. The speech of individuals and nonprofit organizations, which must meet certain criteria to qualify for nonprofit status, should be strongly protected as political speech. However, the public should be protected from the large concentrations of power represented by corporations insofar as the corporate speech is untrue. This is not to say that corporations should stay out of the public sphere. Corporations are free to say whatever they want, subject to truth-in-advertising statutes. Moreover, corporations which want to promote robust discourse can sponsor third-party seminars and symposiums and finance nonprofit organizations to their boards' content -- and subject to applicable laws.
Fundamentally, this issue concerns the ability of individuals to exercise their free will, unhampered by misleading statements promulgated by entities possessed of considerably greater organizational ability and wealth. The Supreme Court has a difficult decision to make, but hopefully it will decide in favor of allowing the individual to access the courts to protect himself against excesses of commercial speech.
