1. See Oral Argument before Supreme Court, April 23, 2003 (Argument of Professor Laurence Tribe), at 7 (“the kind of show trial that would be involved in this case is a lot more expensive than [the Alta-Dena Dairy case]), and at 14 (“What we hold is impermissible is making the courts pawns in a public debate and having what amounts to—they didn't use the phrase show trial, but essentially they were saying that a trial in which you, in effect, put on trial such a large and massive question and hopeless mix of fact and opinion as the impact on the Third World of this large company.”)).

2. See, e.g., Reed, B. Byrum, Nike's speech fight is our own, 74 ADVERTISING AGE (3), Jan. 20, 2003,Google Scholar at 22 (noting that a victory for Kasky in the Supreme Court would spell the end of corporate public relations); Robert, J. Samuelson, The Tax on Free Speech, 142 NEWSWEEK (2) July 14, 2003,Google Scholar at 41 (Supreme Court's failure to rule on Nike's petition is “a disaster.”); Carole Gorney, One “Strike Suit” and You're Out, 48 PUBLIC RELATIONS QUARTERLY (3), Fall 2003, at 36–38.

3. See Oral Argument before Supreme Court, April 23, 2003 (Argument of Mr. Theodore Olson, at 22.) (“California has transferred its governmental authority to regulate marketplace communications to anyone and everyone who possesses the price of the filing fee. Unelected, unaccountable private enforcers, uninhibited by established notions of concrete harm or public duty, have the power to advance their own agendas or personal ideological battles by launching complex, burdensome, and expensive litigation. The in terrorem effect and potential for abuse is difficult to overstate.”) Id.

4. See Thomas, J., concurring in 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484 (1996) at 522. (“I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech. Indeed, some historical materials suggest to the contrary.”). Id.

5. See Mitchell, N. Berman, Commercial Speech and the Unconstitutional ConditionsDoctrine: A Second Look at the Greater Includes the Lesser, 55 Vand., L. Rev. 693, 794–95Google Scholar (2002) (suggesting that Justices Thomas, Scalia, Kennedy, and Stevens are so inclined, with Justice Ginsburg leaning in that direction.).

6. The First Amendment says, in full, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST., AMEND. I (1791).

7. Nike, Inc., v. Kasky, 539 U.S. 654 (2003) (per curiam) (dismissing writ of certiorari as improvidently granted).

8. Nike, Inc., Corporate Responsibility Report, FY04, at 4. This report is available at http://www.nike.com/nikebiz/nikebiz.jhtml;bsessionid=KGY432GNWCIPGCQCGJDSF4YKAIZEQIZB?page=29&item=fy04 (accessed March 20, 2006).

9. Bob, Herbert, Nike's Boot Camps, N.Y. Times, Mar. 31, 1997, at A15.Google Scholar (“The women often are treated little better than slaves. Mr. Nguyen said the factories are like ‘military boot camps’ in which workers are subjected to various forms of humiliation and corporal punishment.”) Id.

10. David, G. Savage, Nike Takes Ad Liability Case to High Court, Times, L.A., Oct. 15, 2002, at B6.Google Scholar

11. Kasky v. Nike, 93 Cal. Rptr. 2d 854 (2000) at 856. This report is available at http://www.saigon.com/~nike/NikeChina.html (accessed March 20, 2006).

12. Tony, Emerson, “Swoosh Wars: In an Operation Modeled on the Clinton Campaign Machine, Nike Takes on its Enemies,” Newsweek, Mar. 12, 2001, at 35–K).Google Scholar

13. Matthew, C. Quinn, Young to study Nike policies on sweatshops, THE Atlanta Journal-Constitution, Feb. 25, 1997, at 1C.Google Scholar

14. Maria, Saporta, Young insisted Nike give him full access to plants, The Atlanta Journal-Constitution, June 24, 1997 at 03E.Google Scholar Young spent 15 days in Asia and “six months” doing research for Nike. Id.

15. Roger, Parloff, Can we talk? Fortune Aug. 11, 2002, at 102–112.Google Scholar The Ernst and Young study is also noted in the California Court of Appeals’ opinion; see Kasky v. Nike, 93 Cal. Rptr. 2d 854 (2000) at 856.

16. The study is still available on the internet. See http://www.calbaptist.edu/dskubik/young.htm (accessed March 20, 2006).

17. Bob, Herbert, Mr. Young Gets It Wrong, Times, N.Y., June 27, 1997, at A29.Google Scholar

18. Kasky v. Nike, 93 Cal. Rptr. 2d 854 (2000) at 857.

19. Id.

20. Parloff, supra note 15.

21. Parloff, supra note 15.

22. David, Graulich, Press Release: Write in Haste … Repent, National Law Journal, 25(6), at D.12.Google Scholar

23. Kasky v. Nike, Inc., Complaint for Statutory, Equitable and Injunctive Relief (Apr. 20, 1998), available at http://www.corpwatch.org/article.php?id=3448 (accessed March 20, 2006)

24. See Cal. Bus. & Prof. Code 17204 (2003).

25. The California Business and Professions Code defines “unfair competition” to include any “unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by the Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” Cal. Bus. Prof. Code 17200 (2003).

26. Kasky, 93 Cal. Rptr. 2d at 857. The first and second causes of action, based on negligent misrepresentation and intentional or reckless misrepresentation, alleged that Nike engaged in an unlawful business practice in violation of the California Business and Professions Code 17200 by making the above misrepresentations “In order to maintain and/or increase its sales and profits … through its, advertising, promotional campaigns, public statements and marketing.” Id. (referring to Cal. Bus. Prof. Code 17200 (2003)).

According to the complaint, Nike made a series of six misrepresentations regarding its labor practices: (1) “that workers who make NIKE products are … not subjected to corporal punishment and/or sexual abuse;” (2) “that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;” (3) “that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;” (4) “that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;” (5) “that workers who produce NIKE products receive free meals and health care;” and (6) “that NIKE guarantees a ‘living wage’ for all workers who make NIKE products.” In addition, the complaint alleges that NIKE made the false claim that the Young report proves that it “is doing a good job and ‘operating morally.’” See Kasky v. Nike, Inc., supra note 23.

27. The third cause of action alleged unfair business practices within meaning of 17200, and the fourth cause of action alleged false advertising in violation of Business and Professions Code section 17500. Section 17500 states that “it is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine.” Cal. Bus. Prof. Code 17500 (2003).

28. Kasky v. Nike, Inc., 45 P.3d 243 (2002). Going to trial would require Kasky to survive a summary judgment motion either during or after discovery; it is not clear that he could. See infra, note 62 and accompanying text.

29. Kennard wrote: “No law required Nike to combine factual representations about its own labor practices with expressions of opinion about economic globalization, nor was it impossible for Nike to address those subjects separately.” In contrast, Justice Brown's dissent noted that Nike could not meaningfully comment on the public issue of its labor practices by making general statements about overseas labor exploitation and economic globalization. “The majority, however, forgets that Nike's overseas labor practices are the public issue.” Kasky v. Nike, Inc., 45 P.3d at 276 (dissenting opinion by Justice Brown).

30. Nike, Inc., v. Kasky, 537 U.S. 1099 (2003) (granting certiorari).

31. Nike, Inc., v. Kasky, 539 U.S. 654 (2003) (per curiam) (dismissing writ of certiorari as improvidently granted).

32. Press Release, Nike, Inc., and Kasky Announce Settlement of Kasky v. Nike First Amendment Case (Sept. 12, 2003), at http://www.nike.com/nikebiz/news/pressrelease.jhtml7year=2003&month=09&letter=f (last visited July 9, 2005).

33. Abrams v. United States, 250 U.S. 616, 624 (1919) (dissenting opinion of Justice Holmes).

34. Id. at 630. Holmes is often quoted for the following language:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. Id.

35. Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J. concurring). Justice Holmes joined in the concurrence.

36. O. Lee Reed, Is Commercial Speech Really Less Valuable than Political Speech?: On Replacing Values and Categories in First Amendment Jurisprudence 34 Am. Bus. L.J. 1, at 10 (1996).

37. Id.

38. Id. at 10–11.

39. Valentine v. Chrestensen, 316 U.S. 52 (1942). “Unprotected” speech means words that can be regulated by government without any protection from the First Amendment.

40. 316 U.S. at 54.

41. Alex, Kozinski and Stuart, Banner, Who's Afraid of Commercial Speech? 76 Va., L. Rev. 627 (1990).Google Scholar

42. 425 U.S. 748 (1976).

43. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770. (1976).

44. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985).

45. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983)

46. Central Hudson Gas & Electric Corp. v. Public Service Com., 447 U.S. 557, 563 (1980).

47. Brief of Amici Curiae, The States of California, Alaska, Arizona, Connecticut, Florida, Illinois, Louisiana, Maine, Maryland, Minnesota, New Mexico, New York, North Dakota, Ohio, Oklahoma, South Dakota, Vermont, and West Virginia and the Commonwealth of Puerto Rico, at 10, citing Central Hudson, 447 U.S. at 562 n.5.

48. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983). In this case, a proposed mailing of materials by the distributor of Trojan brand condoms that discussed (inter alia) public issues of venereal disease and family planning was nonetheless “commercial speech.” As the Court noted, “advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech.” Id. at 68. Still, Youngs Drug Products proposed mailer was given the “qualified but nonetheless substantial protection accorded to commercial speech.” Id. at 68. The Court held that the government's restrictions were more sweeping than necessary and invalidated the restrictions.

49. National Commission on Egg Nutrition v. FTC, 570 F.2d 157 (1977), cert. denied, 439 U.S. 821 (1978).

50. Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 474–75. The Central Hudson case is discussed infra, note 62.

51. Board of Trustees v. Fox, 492 U.S. at 474.

52. See Kasky, 119 Cal. Rptr. 2d 296, at 314. Federal trademark law has several such prohibitions, and federal law requires food packages to include the place of business of the manufacturer, packer, or distributor. 21 U.S.C. § 343(e). For a thoughtful discussion of the distinction between production information and process information, see Douglas, A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv., L. Rev. 525 (2004).Google Scholar By in large, Kysar's analysis upholds the benefits of having consumers fully informed not only as to product quality and price, but also to the ways in which the product was made.

53. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), at 765.

54. See Bruce, Ledewitz, Corporate Advertising's Democracy, 12 B.U. Pub. Int. L.J. 389 (Spring/Summer 2003), at 394Google Scholar

55. Virginia State Board of Pharmacy, 425 U.S. at 771 (“Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a state's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the state from insuring that the stream of commercial information flow cleanly as well as freely.” Id.

56. See supra note 34 (Holmes, J., dissenting in Abrams v. United States).

57. The California economy is the fifth-largest in the world, and most companies cannot do business without potentially reaching a California consumer. See Vicki, McIntyre, Note: Kasky v. Nike: Leaving Corporate America Speechless, 30 Rev., Wm. Mitchell L. 1531 (2004) at 1536.Google Scholar

58. Brief for Amicus Curiae, The Center for Advancement of Capitalism, Nike, Inc., et al. v. Marc Kasky, at 3.

59. Brief for Amicus Curiae, The Business Roundtable, Nike, Inc., et al. v. Marc Kasky, at 3.

60. Brief for Amicus Curiae, National Association of Manufacturers, Nike, Inc., et al. v. Marc Kasky, at 3. The claim here is that Ralph Nader would receive full protection of the First Amendment while General Motors would be provided a lesser standard of protection. Citing Bose Corp. v. Consumers Union, 806 F.2d 304 (1987), what Nike and its amici are arguing is that a specific product can be falsely criticized by a consumer advocate, and that because of First Amendment concerns the manufacturer can succeed in a product disparagement lawsuit only if it can prove that the critic spoke with “malice” or “reckless disregard.” To “level the playing field,” therefore, the Court was urged to find the California statute and decision to have provided less than the “full” First Amendment protection of requiring that a plaintiff prove malice or reckless disregard.

This argument, however, may overlook a number of important distinctions between product disparagement and business defamation. See, e.g., Lisa Magee Arent, Note: A Matter of “‘Governing’ Importance”: Providing Business Defamation and Product Disparagement Defendants Full First Amendment Protection, 67 IND. L.J. 441 (1992). Moreover, the “level playing field” argument does not account for the many other advantages currently enjoyed by corporations to suppress unfavorable ideas and facts. See infra, notes 67–81 and accompanying text. One example is the economic might of the meat industry, which has given large processors the resources to defend their practices vigorously to the public, while consumers often have little or no information on how animals are raised or processed for the market. Oprah Winfrey was accused of product disparagement by Texas cattlemen for hosting a 1996 television segment on the risks of mad cow disease breaking out in the United States. While the lawsuit failed, it “may have chilled media criticism of the meat industry, and it has spurred a significant number of states to enact new or stricter food libel laws.” See Note: Challenging Concentration of Control in the American Meat Industry, 117 HARV. L. REV. 2643, 2651 (June, 2004).

61. The California Code of Civil Procedure allows expenses for frivolous actions, bad faith, or delay. See Cal Code Civ Proc § 128.5 (2004).

62. This follows the contours of the Central Hudson Gas & Electric case, which is now followed in all cases where commercial speech is regulated. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). In Central Hudson, the state utilities commission had prohibited promotional advertising by electric utilities, except for encouraging shifts of consumption away from peak demand times. The Supreme Court, invalidating the commission's ban, articulated a four-part test that has been widely followed in commercial speech cases. The first inquiry is whether the expression is protected by the First Amendment; to be protected at all, commercial speech must concern lawful activity and not be misleading. The second inquiry is whether the governmental interest being asserted is “substantial.” If not, then First Amendment protections will trump the government's attempted restrictions. If the courts find both protected speech and government interests that are substantial, then the third and fourth “prongs” of Central Hudson will be reached: whether the regulation or restriction “directly advances the governmental interest asserted” and whether it is not “more extensive than necessary to serve that interest.” Central Hudson, 447 U.S. at 566.

In many cases, the courts have rejected government regulations as not based on substantial government interests or as “not narrowly tailored” to effectuate that interest. See, e.g., Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (1998) (finding that New York's interest in keeping a beer label with a frog extending its middle “finger” off New York grocery shelves may have been significant but that its regulations did not “directly advance” that interest and were not the least restrictive means of effectuating that interest).

63. Brief for Amicus Curiae, The Business Roundtable, Nike, Inc., et al. v. Marc Kasky, at 3.

64. Oral Argument to the Supreme Court, April 23, 2003 (Lawrence Tribe, at pages 5, 11–12, 16, 17).

65. Oral Argument to the Supreme Court, April 232003 (Theodore Olson, at page 24, 26–27).

66. See infra notes 34–37 and accompanying text.

67. Robert, W. McChesney, Waging the Media Battle, 15 AMERICAN PROSPECT, no. 7 (July 2004), at 24.Google Scholar

68. William, Safire, The Five Sisters, Times, N.Y., op-ed page, Feb. 16, 2004.Google Scholar

69. Paul, Starr, Check and Balance, 15 American Prospect, no. 7 (July 2004), at 30.Google Scholar As Starr notes, “The FCC no longer uses its authority to promote public-affairs programming in the broadcast media, which have cut back the money and airtime they devote to news and public issues. The big question facing the media, as Harold Evans has said, is not whether they will stay in business but whether they will stay in journalism.” Id.

70. Franklin, Foer, Closing of the Presidential Mind, The New Republic, July 5 & 12, 2004, 17–21, at 21.Google Scholar

71. Buckley v. Valeo, 424 U.S. 1 (1976). See also JOEL BAKAN, THE CORPORATION (2004), at 103 (n.33).

72. WILLIAM GREIDER, WHO WILL TELL THE PEOPLE? THE BETRAYAL OF AMERICAN DEMOCRACY (1992).

73. Id. at 123–140. (Chapter Five, “Hollow Laws.”).

74. See LAWRENCE SOLEY, FREE SPEECH AND PRIVATE ENTERPRISE CENSORSHIP INC.: THE CORPORATE THREAT TO FREE SPEECH IN THE UNITED STATES (2002) at 88.

75. Id.

76. Id. at 90.

77. Id. at 90–91.

78. This may be an example of a commercially motivated choice that fights erectile dysfunction yet promotes electile dysfunction. See MoveOn.org, “CBS Guilty of Political Favoritism in Rejecting MoveOn.org Voter Fund Ad: Network Allows White House Anti-Drug Ad As it Lobbies for Favors from Bush and Congress, available at http://www.moveon.org/press/pr/release12204.pdf (accessed March 21, 2006).

79. Soley, supra note 74, at 229–30. Soley documents the conflict of interest in General Electric's ownership of NBC. General Electric is a “major defense contractor, nuclear power plant builder, and consumer electronics manufacturer.” Id. Among other things, NBC has extolled the virtues and safety of nuclear power, has cancelled scheduled appearances by anti-nuclear activists, has failed to cover breaking stories on nuclear power safety issues and plant closings, and boycotts of General Electric. Id. at 230–31.

80. See Charles, R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 Cardozö, L. Rev. 793, 793 (1991)Google Scholar (“[Spoliation] is a form of cheating which blatantly compromises the idea of the trial as a search for the truth.”); see also Dale A. Oesterle, A Private Litigant's Remedies for an Opponent's Inappropriate Destruction of Relevant Documents, 61 TEX. L. REV. 1185, 1186 (1983) (“The naked truth is that many corporations purposefully operate programs to destroy evidence.”); in accord, RALPH NADER AND WESLEY J. SMITH, NO CONTEST: CORPORATE LAWYERS AND THE PERVERSION OF JUSTICE IN AMERICA (1996), at 134–157.

81. NADER AND SMITH, supra note 80, at 76.

82. See supra notes 64–65 and accompanying text.

83. THOMAS DONALDSON AND THOMAS DUNFEE, TIES THAT BIND (1999), at 7. [hereafter, TIES] (“As social contracts change, so too do the challenges for business…. The view has shifted from attitudes half a century ago that limited the responsibilities of companies largely to that of producing goods and services at reasonable prices, to a view today where corporations are held responsible for a variety of fairness and quality of life issues.”) Id.

84. See TIES, supra note 83. See also Thomas, W. Dunfee, Challenges to Corporate Governance: Corporate Governance in a Market with Morality, 62 Law&Contemp. Prob. 129 (1999).Google ScholarSee also Thomas, Donaldson and Thomas, W. Dunfee 1995, Toward a Unified Conception of Business Ethics: Integrative Social Contracts Theory, Academy Of Management Review 19 (1994) at 252.Google Scholar

85. See TIES, supra note 83, at 49–81 (Chapter 3, Hypernorms: Universal Limits on Community Consent). See infra notes 101–111 regarding the hypernorm of necessary social efficiency.

86. Id. at 118.

87. TIES, supra note 83 at 25. (“Our primary task,” write Donaldson and Dunfee, “is to unravel the potential of social contracts as a foundation for an adequate ethical framework for economic activity. We begin by noting that at the core of all contractarian approaches is the acceptance of and respect for human autonomy. As Aristotle notes, all ethical behavior begins with choice.”)

88. See TIES, supra note 83, at 83.

89. See TIES, supra note 83, at 86.

90. See supra notes 14–15 and accompanying text.

91. TIES, supra note 83, at 52.

92. TIES, supra note 83, at 58.

93. TIES, supra note 83, at 60.

94. TIES, supra note 83, at 68.

95. See, e.g., Doe v. Unocal, 395 F.3d 932 (2002), in which Unocal's cooperation with the military government of Myanmar brought complaints of forced labor and other alleged violations of human rights.

96. Dunfee, supra note 84, at notes 86 and 87.

97. See, e.g., William, C. Frederick, Pragmatism, Nature and Norms, 105 Business and Society Review (4), (Winter 2000), 467–79;Google ScholarBill, Shaw, Review: Ties that Bind, 37 AM. Bus. L.J. (Spring 2000), 563–78.Google Scholar

98. TIES, supra note 83, at 68–69.

99. The Caux Round Table Principles for Business can be found on the Caux Round Table website, See http://www.cauxroundtable.org/principles.html (accessed March 21, 2006).

100. TIES, supra note 83, at 118.

101. Id. at 119.

102. Id. at 119–121.

103. Id. at 122–23.

104. Id. at 125.

105. Id. at 125.

106. Id. at 130.

107. Id. at 134.

108. For a corrective view, see PATRICIA WERHANE, ADAM SMITH AND HIS LEGACY FOR MODERN CAPITALISM (1999).

109. TIES, supra note 83, at 138.

110. In TIES THAT BIND, Donaldson and Dunfee explicitly rely on the assumptions of a perfectly competitive market to buttress the notion of a necessary social efficiency hypernorm Id. at 135.

111. See infra, notes 66–81 and accompanying text.

112. Parloff, supra note 15.