From Sullivan to Nike: Will the Noble Purpose of the Landmark Free Speech Case Be Subverted to Immunize False Advertising?

In deciding not to rule in Nike, Inc. v. Kasky, the Supreme Court of the United States passed up an ideal opportunity to answer an urgent question that derives from two legacies of New York Times v. Sullivan: When speech implicates both the commercial speech doctrine and the political speech doctrine, how should that speech be assessed in terms of First Amendment protection? This analysis focuses upon the essential principles emphasized in Sullivan's landmark assessment of the societal value in protecting some false speech in the discussion of public issues. Concerns over the Nike case's implications for corporate expression must be weighed against the societal interest in preventing false commercial speech from being immunized by attaching it to a public issue.