Nike v. Kasky: An Invitation to Discard the Commercial Speech Doctrine

May 1, 2003

Deborah J. La Fetra

Over the past 60 years, this Court’s approach to speech uttered by business interests has ranged from zero protection (Valentine v. Chrestensen, 316 U.S. 52 (1942)), to very high protection (Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)), to a four-part test (Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564 (1980)), which has itself undergone revision (Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) (upholding a regulation outlawing Tupperware parties on a university campus)). There have been conflicting analyses depending on the speaker (Bates v. State Bar, 433 U.S. 350, 384 (1977) and Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978) (lesser protection accorded to attorney solicitations)) and the social worth of the activity promoted (Compare Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 342, 348 (1986) (restrictions on advertisements for legal gambling facilities do not violate the first amendment) with Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980) (restrictions on solicitations for charity struck down)).

Nike v. Kasky: An Invitation to Discard the Commercial Speech Doctrine