Kasky

I respectfully dissent.

Nike, Inc. (Nike), is a major international corporation with a multibilliondollar enterprise. The nature of its labor practices has become a subject of considerable public interest and scrutiny. Various persons and organizations have accused Nike of engaging in despicable practices, which they have described sometimes with such caustic and scathing words as “slavery” and “sweatshop.” Nike’s critics and these accusations receive full First Amendment protection. And well they should. “The First and Fourteenth Amendments embody our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open ....’” (Garrison v. Louisiana (1964) 379 U.S. 64, 75 [ 85 S.Ct. 209, 216 , 13 L.Ed.2d 125 ] (Garrison), quoting New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270 [ 84 S.Ct. 710, 721 , 11 L.Ed.2d 686 , 95 A.L.R.2d 1412 ].) “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 94 S.Ct.…

I respectfully dissent.

I

In 1942, the United States Supreme Court, like a wizard trained at Hogwarts, waved its wand and “plucked the commercial doctrine out of thin *978 air.” (Kozinski & Banner, Who’s Afraid of Commercial Speech (1990) 76 Va. L.Rev. 627, 627.) Unfortunately, the court’s doctrinal wizardry has created considerable confusion over the past 60 years as it has struggled to define the difference between commercial and noncommercial speech. The United States Supreme Court has, in recent years, acknowledged “the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.” (City of Cincinnati v. Discovery Network, Inc. (1993) 507 U.S. 410, 419 [ 113 S.Ct. 1505, 1511 , 123 L.Ed.2d 99 ] (Discovery Network).) After tracing the various definitions of commercial speech used over the years, the court conceded that no “categorical definition of the difference between” commercial and noncommercial speech exists. {Id. at pp. 420-423 [113 S.Ct. at pp. 1511-1513].) Instead, the difference is a matter of “ ‘common[]sense’ ” (Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 455-456 [ 98 S.Ct. 1912, 1918-1919 , 56 L.Ed.2d 444 ]…

Acting on behalf of the public, plaintiff brought this action seeking monetary and injunctive relief under California laws designed to curb false advertising and unfair competition. Plaintiff alleged that defendant corporation, in response to public criticism, and to induce consumers to continue to buy its products, made false statements of fact about its labor practices and about working conditions in factories that make its products. Applying established principles of appellate review, we must assume in this opinion that these allegations are true.

*946 The issue here is whether defendant corporation’s false statements are commercial or noncommercial speech for purposes of constitutional free speech analysis under the state and federal Constitutions. Resolution of this issue is important because commercial speech receives a lesser degree of constitutional protection than many other forms of expression, and because governments may entirely prohibit commercial speech that is false or misleading.

Because the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about the speaker’s own business…