Business blogs and commercial speech: A new analytical framework for the 21st century

American Business Law Journal

Volumn 44, Issue 1, 2007, Pages 127-159

  Sprague, Robert ^a  

^a UNIVERSITY OF WYOMING   (United States)

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EID: 33847229120     PISSN: 00027766     EISSN: 17441714     Source Type: Journal    
DOI: 10.1111/j.1744-1714.2007.00032.x     Document Type: Review

References (235)

1. See Bigelow v. Virginia, 420 U.S. 809 (1975). The development of the commercial speech doctrine is discussed at Part III infra.
2. Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998).
3. Scott Rosenberg, Fear of Links, SALON.COM, May 28, 1999, http://www.salon.com/tech/col/rose/1999/05/28/weblogs.
4. See, e.g., Buffalo Wings & Vodka (There's nothing funny about law school), http://wingsandvodka.blogs.com (last visited Oct. 3, 2006) (a site that allows law students to post comments on a selection of topics such as exams, current affairs, love, politics, television, and the job search).
5. See Timeline of Early Blogs, BLOCKSTAR.COM, http://www.blockstar.com/blog/blog_timeline.html (last visited Oct. 3, 2006).
6. See generally The HBR List: Breakthrough Ideas for 2005, HARV. BUS. REV., Feb. 2005, at 17, 39 (discussing how blogs have the potential to substantially impact business practices);
7. David Kirkpatrick, Why There's No Escaping the Blog, FORTUNE, Jan. 10, 2005, at 44.
8. See Lee Rainie, The State of Blogging, PEW INTERNET & AMERICAN LIFE PROJECT, Jan. 2, 2005, http://www.pewinternet.org/PPF/r/144/report_display.asp (estimating eight to nine million blogs by the end of 2004). Technorati, a blog-tracking service, reported in April 2006 that it was tracking 33.7 million blogs, with nearly 75,000 new blogs every day.
9. Dave Sifry, State of the Blogosphere, February 2006 Part 1: On Blogosphere Growth, TECHNORATI.COM, Feb. 6, 2006, http://technorati.com/weblog/2006/02/81.html.
10. See also Leslie Walker, New Trends in Online Traffic, WASH. POST, Apr. 4, 2006, at D1 (noting the growth of Internet traffic at blogging and social networking sites and the increase in the number of people posting or reading material at blogger.com to 15.6 million in March 2006, compared to 2.5 million a year earlier).
11. But see Carl Bialik, Measuring the Impact of Blogs Requires More Than Counting, WSJ.COM, THE WALL ST. J. ONLINE, May 26, 2005, http://online.wsj.com/public/ article/SB111685593903640572.html (noting that one source estimated the number of active blogs-those with a posting in the past 30 days-was 3.5 million in May 2005).
12. Rainie, supra note 7. However, the majority of Internet users still do not know what a blog is.
13. Id. See also Bialik, supra note 7 (noting "there are very few individual blogs that have a significant number of readers");
14. Jason Fry, Blog Epitaphs? Get Me Rewrite!, WSJ.COM, THE STARTUP JOURNAL, Mar. 2, 2006, http://www.startupjournal.com/ecommerce/ecommerce/20060302-fry.html (referring to a Gallup poll that found that "just 9% of Internet users read blogs frequently, 11% do so occasionally, 13% rarely bother, and 66% never do").
15. The influence of blogs is also growing in other countries. See, e.g., Philip P. Pan, The Click That Broke a Government's Grip, WASH. POST, Feb. 19, 2006, at A1 (discussing dilemmas faced by the Chinese government due to the rise of blogs within that country);
16. Nicholas D. Kristof, Death by a Thousand Blogs, N.Y. TIMES, May 24, 2005, at A21 (discussing the growing influence of blogs in China).
17. See Rainie, supra note 7 (reporting that approximately 10 million Americans read political blogs "frequently" or "sometimes" during the 2004 campaign).
18. See Brian Faler, Parties to Allow Bloggers to Cover Conventions for First Time, WASH. POST, July 6, 2004, at A4.
19. See A Blogging First at White House, MSNBC News, Mar. 8, 2005, http://www.msnbc.msn.com/id/7117260/. In another sign of the growing influence of blogs, bloggers were partially credited with exposing another press credentialed "journalist," Jeff Gannon, as an employee of a conservative activist and revealing that he had ties with an online male escort service.
20. See Howard Kurtz, Online Nude Photos Are Latest Chapter In Jeff Gannon Saga, WASH. POST, Feb. 16, 2005, at C1;
21. Katherine Q. Seelye, Bloggers as News Media Trophy Hunters, N.Y. TIMES, Feb. 14, 2005, at C1.
22. Stephen Baker & Heather Green, Blogs Will Change Your Business, BUS. WK., May 2, 2005, at 57.
23. The HBR List, supra note 6.
24. See Mary Wagner, Into the Blogosphere: Retailers take Their First Steps into the Brave New World of Blogging, INTERNET RETAILER, Aug. 2005, http://www.internetretailer.com/article.asp?id= 15633.
25. See Kirkpatrick, supra note 6.
26. See id.
27. See, e.g., Tania Ralli, Brand Blogs Capture the Attention of Some Companies, N.Y. TIMES, Oct. 24, 2005, at C6.
28. See also William M. Bulkeley, The Inside View: Employee Blogs Can Put a Human Face on Companies. But That's Not Always a Good Thing., WALL ST. J., Apr. 3, 2006, at R7 ("Enthusiasts say that ... blogs by company employees-sanctioned, if not sponsored, by the companies themselves-put a human face on a corporation and provide a way to reach customers and counter critics.").
29. See http://fastlane.gmblogs.com (last visited Oct. 3, 2006). Interestingly, in 2005 the description of the blog stated: The FastLane blog is where you can come to read the latest, greatest musings of GM leaders on topics relevant to the company, the industry and the global economy, and-most of all-to our customers and other car enthusiasts. We look forward to an open exchange of viewpoints and welcome your ideas and feedback throughout 2005. In 2006 the description eliminated any reference to discussing the automotive industry and the global economy and was changed to, "The FastLane blog is all about the cars and trucks. GM leaders discuss all aspects of our vehicles. We look forward to hearing your ideas." http://fastlane.gmblogs.com/about.html (last visited Apr. 9, 2006). The FastLane blog was changed again in 2006 to read, "GM's FastLane blog is a forum for GM executives to talk about GM's current and future products and services, although non-executives sometimes appear here to discuss the development and design of important products. On occasion, FastLane can be utilized discuss other important issues facing the company."
30. Id. (last visited Oct. 3, 2006).
31. General Motors has also attempted to use blogs beyond the FastLane blog. Chevrolet introduced aWeb site that allowed users to create their own 30-second commercials for the 2007 Chevrolet Tahoe (using existing video clips and music and adding their own words). The hope was that users would e-mail their commercials to friends and post them on their personal blogs. See Julie Bosman, Chevy Tries a Write-Your-Own-Ad Approach, and the Potshots Fly, N.Y. TIMES, Apr. 4, 2006, at C1.
32. See Scobleizer, http://scobleizer.wordpress.com/ (last visited Oct. 3, 2006).
33. See ROBERT SCOBLE & SHEL ISRAEL, NAKED CONVERSATIONS: HOW BLOGS ARE CHANGING THE WAY BUSINESSES TALK WITH CUSTOMERS 17 (2006).
34. See Tom Zeller, Jr., When the Blogger Blogs, Can the Employer Intervene?, N.Y. TIMES, Apr. 18, 2005, at C1.
35. The HBR List, supra note 6, at 39.
36. See Michael Barbaro, Wal-Mart Enlists Bloggers in Its Public Relations Campaign, N.Y. TIMES, Mar. 7, 2006, at C1.
37. See also Rebecca Buckman, Blog Buzz on High-Tech Start-Ups Causes Some Static, WALL ST. J., Feb. 9, 2006, at B4 (discussing one Internet startup's use of blogs to generate publicity, though some of the bloggers may be future paid consultants to the company);
38. Bulkeley, supra note 18 (noting that some companies view blogs as a way to address controversial issues or "tweak rivals").
39. See Barbaro, supra note 24.
40. See also Buckman, supra note 24 (discussing the conflicts of interest that can arise from the relationships between bloggers and companies they discuss).
41. See Kirkpatrick, supra note 6.
42. Nate Mook, MS Taps Bloggers to Promote Longhorn, BETANEWS, May 2, 2005, http://www.betanews.com/article/ MS_Taps_Bloggers_to_Promote_Longhorn/1115049500.
43. See The HBR List, supra note 6, at 39. The author states: Corporate marketers must deal with bloggers differently from the way they deal with traditional media. First, they must realize that the blogosphere is not just a place in which to advertise; it is a medium in which to participate. Marketers can join the conversation on influential blogs related to their products or companies-or, even better, they can become bloggers in their own right by hosting blogs for customers. Most radically, they can host independent bloggers on their Web sites, essentially trading exposure for reach and credibility.
44. Id.
45. See also Barbaro, supra note 24 (quoting a Wal-Mart spokeswoman, "As more and more Americans go to the Internet to get information from varied, credible, trusted sources, Wal-Mart is committed to participating in that online conversation") (emphasis added)).
46. Chevrolet's "write-your-own-ad" approach backfired when users created commercials criticizing Chevrolet's product. See Bosman, supra note 19 (noting one user-created commercial with the text: "$70 to fill up the tank, which will last less than 400 miles ...").
47. See id.
48. See FTC Policy Statement on Deception (Oct. 14, 1983) (emphasis added); 15 U.S.C. § 45 (2004) (making unlawful unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce). The states also have their own unfair or deceptive acts legislation.
49. See, e.g., N.Y. GEN. BUS. LAW §§ 349, 350 (McKinney 1988);
50. TEX. BUS. & COM. CODE ANN. § 17.12 (West 1987);
51. FLA. STAT. § 501.201 et seq. (2005) (which, according to Rubin v. MasterCard Int'l., 342 F. Supp. 2d 217, 220 (N.Y.S.D. 2004), is to be construed liberally).
52. See The HBR List, supra note 6.
53. See, e.g., supra notes 10-12 and accompanying text.
54. See Adam Cohen, The Latest Rumbling in the Blogosphere: Questions About Ethics, N.Y. TIMES, May 8, 2005, § 4 (Editorial), at 11 ("Defenders of the status quo argue that ethics rules are not necessary in the blogosphere because truth emerges through 'collaboration,' and that bias and conflicts of interest are rooted out by 'transparency.'").
55. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
56. The GM FastLane blog has adopted the following code of ethics: 1. We will tell the truth. We will acknowledge and correct any mistakes promptly. 2. We will not delete comments unless they are spam, off-topic, or defamatory. 3. We will reply to comments when appropriate as promptly as possible. 4. We will link to online references and original source materials directly[.] 5. We will disagree with other opinions respectfully. GM FastLane Blog, http://fastlane.gmblogs.com/about.html (adapting principles from Charlene Li's blogger code of ethics, which can be found at http://forrester.typepad.com/ charleneli/2004/11/blogging_policy.html).
57. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 8 (2004).
58. See Bigelow v. Virginia, 421 U.S. 809, 819 (1975) (providing citations to cases finding such categories of speech unprotected).
59. See New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
60. Bigelow, 421 U.S. at 826. In Bigelow, the Court explained that its earlier decision, Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), in which the Court ruled that a restriction on commercial speech faced no constitutional restraint, was limited solely to the ordinance at issue. Bigelow, 421 U.S. at 819-20.
61. Bigelow, 421 U.S. at 826 (citations omitted).
62. See Bulkeley, supra note 18 (discussing Cisco System's general counsel responding, on a blog sponsored by the company, to charges by critics that Cisco equipment is being used by the Chinese government to stifle dissent).
63. See supra note 31 and accompanying text.
64. A sampling of law review article titles gives some indication of the level of controversy. See, e.g., Scott Wellikoff, Mixed Speech: Inequities That Result From an Ambiguous Doctrine, 19 ST. JOHN'S J. LEGAL COMMENT. 159 (2004);
65. Nat Stern, In Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV. 55 (1999);
66. Brian J. Waters, Comment, A Doctrine in Disarray: Why the First Amendment Demands the Abandonment of the Central Hudson Test for Commercial Speech, 27 SETON HALL L. REV. 1626 (1997).
67. See Eugene W. Hickok, Jr., Introduction, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 1, 5 (Eugene W. Hickok, Jr. ed. 1991).
68. See David A. Strauss, Freedom of Speech and the Common-Law Constitution, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 32, 33 (Lee C. Bollinger & Geoffrey R. Stone eds. 2002).
69. See, e.g., Cass R. Sunstein, Free Speech Now, in THE BILL OF RIGHTS IN THE MODERN STATE 255, 301 (Geoffrey R. Stone et al. eds. 1992);
70. Stanley C. Brubaker, Original Intent and Freedom of Speech and Press, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 82, 89 (Eugene W. Hickok, Jr. ed. 1991). Brubaker writes: [S]peech must be expansively protected if we are to have informed voting, if public affairs will be genuine affairs of the public, if public officials can be held responsible for their actions, if abuses of power are to be discovered. Only upon the knowledge that a people can govern itself can one sensibly argue that freedom of speech is the very matrix of all our other liberties.
71. Id.
72. See, e.g., Thomas H. Jackson & John C. Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REV. 1, 10 (1979). Despite the notion that the primary purpose of the First Amendment was to protect political speech, eight years later Congress passed the Sedition Act of 1798, which made punishable any false, scandalous, or malicious writings against the government or against the president or members of Congress with the intent to defame them or bring them into contempt or disrepute.
73. See STONE, supra note 37, at 36. The Act was a reflection of the Federalist's view that the notion that truth prevails over falsehood was merely '"a fine moral sentiment ...."'
74. Id. at 33. The Sedition Act of 1798 expired, by its terms, in 1801.
75. See generally id. at 33-73. The Sedition Act predated Marbury v. Madison, 5 U.S. 137 (1803), therefore there was no constitutional challenge to the law.
76. See, e.g., Lee C. Bollinger & Geoffrey R. Stone, Dialogue, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 1, 1 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002);
77. David M. Rabban, The First Amendment in Its Forgotten Years, 90 YALE L.J. 514, 516 (1982). It was the Espionage Act of 1917, which was intended to suppress criticism of World War I and its draft, that gave rise to the first U.S. Supreme Court applications and interpretations of free speech under the First Amendment.
78. STONE supra note 37, at 146. In Schenck v. United States, the Court upheld the conviction of Schenck under the Espionage Act for distributing a leaflet condemning the then-current draft. 249 U.S. 47 (1919). Justice Holmes held that the "tendency" of Schenck's leaflets to obstruct recruitment was sufficient for making it a criminal act.
79. Id. at 51-52.
80. See also Rabban, supra note 49, at 585. Schenck contains some of the most well-known phrases regarding the application of the First Amendment: We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic .... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Schenck, 249 U.S. at 52 (citations omitted; emphasis added).
81. See Strauss, supra note 46, at 50. Justice Holmes later argued that under the "clear and present danger" test the government needed to show a high-probability risk of harm that was both immediate and serious. Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting).
82. See Stromberg v. California, 283 U.S. 359 (1931);
83. Strauss, supra note 46, at 50.
84. See generally Strauss, supra note 46, at 54 ("[O]nce the Court had begun to place political speech at the center of the system of freedom of expression, and to afford extraordinary protection to political speech, it was forced to recognize that not all speech could be treated the same way.").
85. 315 U.S. 568, 572 (1942) (footnotes omitted).
86. 316 U.S. 52 (1942). Some commentators consider Valentine to be the Court's first commercial speech case. See, e.g., Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627, 627-28 (1990) (referring to Valentine as the Court's first commercial speech case). Kozinski and Banner assert that, in Valentine, "the Supreme Court plucked the commercial speech doctrine out of thin air."
87. Id. at 627.
88. However, in a number of pre-Valentine cases involving local ordinances regulating the distribution of leaflets, the Supreme Court distinguished between commercial and noncommercial speech. For example, in Schneider v. State, a case involving the constitutionality of a local ordinance as applied to the distribution of religious literature, the Court noted in dictum that, had the case involved only commercial soliciting, the constitutionality of the challenged ordinance might have been upheld. 308 U.S. 147 (1939). The Court stated, "We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires." Id. at 165.
89. See also EDWIN P. ROME & WILLIAM H. ROBERTS, CORPORATE AND COMMERCIAL FREE SPEECH: FIRST AMENDMENT PROTECTION OF EXPRESSION IN BUSINESS 11-15 (1985) (reviewing the Supreme Court's pre-Valentine commercial speech discussions).
90. Valentine, 316 U.S. at 53.
91. Id. at 54 (emphasis added).
92. See Bigelow v. Virginia., 421 U.S. 809, 819-20 (1975).
93. Id. at 818 (citing Pittsburgh Press Co. v. Human Rel. Comm'n, 413 U.S. 376, 384 (1973);
94. New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964)).
95. Bigelow, 421 U.S. at 825. The Court did state, however, that advertising "may be subject to reasonable regulation that serves a legitimate public interest." Id. at 826.
96. "The First Amendment, of course, is applicable to the States through the Fourteenth Amendment." Id. at 811 (citing Schneider v. State, 308 U.S. 147, 160 (1939)).
97. 425 U.S. 748 (1976).
98. Id. at 760-61 ("[T]he question whether there is a First Amendment exception for 'commercial speech' is squarely before us.").
99. Id. at 761.
100. Id. at 773. The Court stated, "What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Reserving other questions, we conclude that the answer to this one is in the negative."
101. Id. (footnote omitted).
102. See also Linmark Assoc. v. Willingboro, 431 U.S. 85 (1977) (stating that states may not prohibit advertisements of otherwise legal activities);
103. Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (same).
104. 447 U.S. 557 (1980).
105. Id. at 564.
106. Id. at 566.
107. See, e.g., Edenfield v. Fane, 507 U.S. 761, 767 (1993).
108. See Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 183 (1999).
109. Id. at 183.
110. See id. at 188.
111. Cincinnati v. Discovery Network, 507 U.S. 410, 434 (1993) (Blackmun, J., concurring).
112. See Greater New Orleans Broad. Ass'n, 527 U.S. at 184 ("[T]here is no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision."). Accord Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554-55 (2001).
113. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 (1996) (Scalia, J., concurring in part and concurring in judgment) ("I share Justice Thomas's discomfort with the Central Hudson test, which seems to me to have nothing more than policy intuition to support it.");
114. Greater New Orleans Broad. Ass'n, 527 U.S. at 197 (Thomas, J., concurring in the judgment) ("I continue to adhere to my view that 'in cases such as this, in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace,' the Central Hudson test should not be applied because 'such an 'interest' is per se illegitimate and can no more justify regulation of 'commercial speech' than it can justify regulation of 'noncommercial' speech.'" (citing 44 Liquormart, 517 U.S. at 518));
115. Lorillard Tobacco Co., 533 U.S. at 554 (noting that "several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases");
116. Thompson v. W. States Med. Ctr., 535 U.S. 357, 389 (2002) (Breyer, J., dissenting) ("[A]n overly rigid 'commercial speech' doctrine will transform what ought to be a legislative or regulatory decision about the best way to protect the health and safety of the American public into a constitutional decision prohibiting the legislature from enacting necessary protections.").
117. See also Susan Dente Ross, Reconstructing First Amendment Doctrine: The 1990s Revolution of the Central Hudson and O'Brien Tests, 23 HASTINGS COMM. & ENT. L.J. 723, 741-45 (2001) (discussing the Court's increasingly stringent application of the Central Hudson test).
118. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 830 (1975) (Rehnquist, J., dissenting);
119. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 787-88 (1976) (Rehnquist, J., dissenting) ("It is undoubtedly arguable that many people in the country regard the choice of shampoo as just as important as who may be elected to local, state, or national political office, but that does not automatically bring information about competing shampoos within the protection of the First Amendment.");
120. Bates v. State Bar of Ariz., 433 U.S. 350, 404 (1977) (Rehnquist, J., dissenting in part). In Bates, Justice Rehnquist stated: I continue to believe that the First Amendment speech provision, long regarded by this Court as a sanctuary for expressions of public importance or intellectual interest, is demeaned by invocation to protect advertisements of goods and services. I would hold quite simply that the appellants' advertisement, however truthful or reasonable it may be, is not the sort of expression that the Amendment was adopted to protect.
121. Id.
122. See, e.g., 44 Liquormart, 517 U.S. at 501-04 (Stevens, J., plurality opinion) (prohibitions of the "dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process ..." deserve rigorous review);
123. Cincinnati v. Discovery Network, 507 U.S. 410, 436 (1993) (Blackmun, J., concurring) ("I believe the Court should ... hold that truthful, noncoercive commercial speech concerning lawful activities is entitled to full First Amendment protection.").
124. Bigelow, 421 U.S. at 822.
125. Va. State Bd. of Pharmacy, 425 U.S. at 762 (citation omitted).
126. Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980) (emphasis added).
127. Id. at 561-62.
128. 463 U.S. 60 (1983).
129. Id. at 66-67.
130. Id. at 67.
131. Id. at 81 (Stevens, J., concurring in the judgment) (also expressing concern that the Court "must be wary of unnecessary insistence on rigid classifications, lest speech entitled to 'constitutional protection be inadvertently suppressed[]' ") (citation omitted). Justice Stevens has been perhaps the Court's strongest advocate that the "borders of the commercial speech category are not nearly as clear as the Court has assumed ...."
132. See Rubin v. Coors Brewing Co., 514 U.S. 476, 493 (1995) (Stevens, J., concurring in the judgment). In Rubin, Justice Stevens discussed what he perceived to be "the artificiality of a rigid commercial/ noncommercial distinction[,]" in which a beer's alcohol content, when printed on the label of a bottle of beer, is commercial speech, yet when it might be published by a nonprofit consumer protection group, it would presumably be classified as noncommercial.
133. Id. at 494 (citation and footnotes omitted).
134. See, e.g., Transp. Alternatives, Inc. v. City of New York, 218 F. Supp. 2d 423, 436-37 (S.D.N.Y. 2002) (citing Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 97 (2d Cir. 1998)).
135. 242 F.3d 539 (5th Cir. 2001).
136. Id. at 552.
137. Id.
138. The court remanded the case to the district court to determine whether or not the motivation of the speaker was economic.
139. Id.
140. See also Transp. Alternatives, 218 F. Supp. 2d at 437 (finding that trademarks and logos of for-profit companies displayed at nonprofit public event constituted commercial speech based on the three factors enumerated in Bolger).
141. Central Hudson Gas & Electric Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 580 (1980) (Stevens, J., concurring in the judgment).
142. Proctor & Gamble, 242 F.3d at 552-53.
143. Id. at 553.
144. Id.
145. 487 U.S. 781 (1988).
146. Id. at 795 (citation omitted).
147. 45 P.3d 243 (Cal. 2002), cert. dismissed as improvidently granted, Nike, Inc. v. Kasky, 539 U.S. 654 (2003).
148. CAL. BUS. & PROF. CODE § 17200 et. seq. (2005) (unfair competition);
149. CAL. BUS. & PROF. CODE § 17500 et. seq. (2005) (false advertising).
150. See Kasky, 45 P.3d at 249-50.
151. CAL. BUS. & PROF. CODE § 17204 (2005);
152. see Kasky, 45 P.3d at 249.
153. Kasky, 45 P.3d at 250 (citations omitted) (emphasis added).
154. Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854 (Cal. App. 2000).
155. See Kasky, 45 P.3d at 256.
156. See id.
157. See supra text accompanying notes 88-93.
158. Kasky, 45 P.3d at 256-58.
159. Id. at 258.
160. Id. at 260 (citing Bolger v. Youngs Drug Corp., 463 U.S. 60, 68 (1983)).
161. 492 U.S. 469, 474 (1989).
162. Kasky, 45 P.3d at 260.
163. Nike, Inc. v. Kasky, 539 U.S. 654 (2003). The Court dismissed the writ on the basis that: (1) the judgment entered by the California Supreme Court was not final within the meaning of 28 U.S.C. § 1257, (2) neither party had standing to invoke the jurisdiction of a federal court, and (3) the reasons for avoiding the premature adjudication of novel constitutional questions applied with special force to this case.
164. Id. at 657-58.
165. Nike Settles Suit by California Activist over Statements on Working Conditions, 72 U.S.L.W. (BNA) Sept. 23, 2003, at 2160.
166. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 498-99 (1996).
167. See Bolger, 463 U.S. at 81 (Stevens, J., concurring) ("advertisements may be complex mixtures of commercial and noncommercial elements ...").
168. See Note, Making Sense of Hybrid Speech: A New Model for Commercial Speech and Expressive Conduct, 118 HARV. L. REV. 2836, 2838-39 (2005).
169. Stern, supra note 44, at 146.
170. There is a general consensus among many commentators that the boundary between commercial and noncommercial speech is blurring. See, e.g., Making Sense of Hybrid Speech, supra note 111, at 2855 (mentioning product placement in movies as an example);
171. Kozinski & Banner, supra note 54, at 640-41 (arguing that many television commercials and music videos are more akin to mini-movies than a proposition to sell a product).
172. Entertainment, a protected form of speech, is often blurred with advertising efforts. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.") (citations omitted). One author notes that "there is a conscious and coordinated effort on the part of content creators, production companies, studios, marketers, and manufacturers to integrate products into entertainment programming in a systematic, efficient, and persuasive manner."
173. Matthew Savare, Where Madison Avenue Meets Hollywood and Vine: The Business, Legal, and Creative Ramifications of Product Placements, 11 UCLA ENT. L. REV. 331, 334 (2004). In an extreme example of the blurring between what would be considered expression (a television show) and product promotion, the producers of the television show "My Wife and Kids" agreed to incorporate a story line into a broadcast involving the movie, "E.T.: The Extra-Terrestrial," just days before a special twentieth anniversary edition DVD of the movie was to be released.
174. See 'My Wife and Kids' Re-Enacts Scenes from Steven Spielberg's 'E.T. The Extra-Terrestrial' in March 20th Episode, PR NEWSWIRE, Mar. 14, 2002. Another example of the blurring between fully protected speech and commercial speech is the growing use by news organizations of public relations pieces produced by private companies. "Many television news stations, including some from the nation's largest markets, are continuing to broadcast reports as news without disclosing that the segments were produced by corporations pitching new products ...."
175. David Barstow, Report Faults Video Reports Shown as News, N.Y. TIMES, Apr. 6, 2006, at A19.
176. PHILIP KOTLER, MARKETING MANAGEMENT 605 (9th ed. 1997).
177. See id. at 623.
178. See id. at 625.
179. See Wagner, supra note 15 (noting that "[b]logs are being used in business to give a voice and personality to corporations and industry issues");
180. Barbaro, supra note 24 ("What is different about Wal-Mart's approach to blogging is that rather than promoting a product ... it is trying to improve its battered image.").
181. See, e.g., Walker, supra note 7 (noting that the February 2005 to February 2006 increase in traffic to the Internet site MySpace.com (a social networking site) was 318%, compared to Yahoo.com's and Google.com's increases of 5% and 21%, respectively). One author maintains: "Many companies are becoming acutely aware of the power of the 'talk factor' or 'word-of-mouth' coming from expert and social channels in generating new business. They are seeking ways to stimulate these channels to provide recommendations for their products and services."
182. KOTLER, supra note 115, at 617.
183. This viral stimulus was behind Chevrolet's effort to allow Internet users to create their own commercials. See Bosman, supra note 19 and accompanying text. "[C]ompanies ha[ve] such a strong desire for user-generated advertising that they [are] willing to accept the risks."
184. Id. Of course, readers of the messages may not necessarily know whether the author of the messages works for the talked-about company or, indeed, if the company actually sponsors the blog where the comments are posted.
185. See Getting the Bug: Justin Kirby Explains How Online Viral Marketing Can Help Those Brands Without a "Wow" Factor by Creating Entertainment and Provoking Debate, BRAND STRATEGY, July 2004, at 33;
186. Barbaro, supra note 24 (bloggers posting public relations material from Wal-Mart without attribution).
187. See Cecil C. Huhne, III, Testing the Outer Limits of Commercial Speech: Its First Amendment Implications, 23 REV. LITIG. 607, 607 (2004).
188. See id. at 607-08. Huhne writes: The communications challenged in Nike were part of a nationwide debate in which consumers were asked to (a) make a political choice about whether or not to boycott Nike products; and (b) think more broadly about the roles and responsibilities of multinational corporations in a global economy. Nike's First Amendment right to participate in this debate and to defend its practices was different than its interest in merely proposing a commercial transaction.
189. Id. at 625.
190. Deborah J. La Fetra, Kick It Up a Notch: First Amendment Protection for Commercial Speech, 54 CASE W. RES. L. REV. 1205, 1207 (2004). La Fetra writes: More and more frequently ... corporate speech also contributes to public debates on matters of general interest, such as the economy, the environment, and foreign trade. As participants in these debates, businesses present a distinct point of view and information that may be unavailable to other participants, or information which other participants may not choose to reveal.
191. Id. at 1206.
192. See Huhne, supra note 121, at 609. Huhne maintains that "[i]nformation about Nike's labor practices may be important to many consumers and may even be a factor in their purchasing decisions, but these consumers are seeking to use their economic power to make broader political and economic statements."
193. Id. at 626.
194. Id. at 609 (noting that more and more consumers base purchasing decisions on ethical information).
195. See also Stern, supra note 44, at 75-77 (summarizing arguments advocating elevating First Amendment protection for commercial speech).
196. Nike, Inc. v. Kasky, 539 U.S. 654, 682 (2003) (Breyer, J., dissenting)
197. Id. (citation omitted).
198. Huhne, supra note 121, at 626.
199. Bruce E.H. Johnson & Jeffrey L. Fisher, Why Format, Not Content, Is the Key to Identifying Commercial Speech, 54 CASE W. RES. L. REV. 1243, 1245 (2004).
200. See Sunstein, supra note 47, at 303.
201. See Tamara R. Piety, Grounding Nike: Exposing Nike's Quest for a Constitutional Right to Lie, 78 TEMP. L. REV. 151, 153 (2005).
202. See Erwin Chemerinsky & Catherine Fisk, What is Commercial Speech? This Issue Not Decided in Nike v. Kasky, 54 CASE W. RES. L. REV. 1143, 1143 (2004) (arguing that Nike's statements met the Bolger test for commercial speech).
203. See Ronald K. L. Collins & David M. Skover, Colloquy: The First Amendment In A Commercial Culture: Commerce & Communication, 71 TEX. L. REV. 697, 732 (1993). Other arguments have been based on broader social concerns, for example, that commercial speech does not deserve constitutional protection because modern advertising is bad for society.
204. See Tamara R. Piety, "Merchants of Discontent": An Exploration of the Psychology of Advertising, Addiction, and the Implications for Commercial Speech, 25 SEATTLE U. L. REV. 377, 450 (2001) ("Today, the business of business is consumption and the manufacture of the desire to consume.").
205. See Bolger v. Youngs Drug Corp., 463 U.S. 60, 68 (1983).
206. See Jason A. Cade, Note, If the Shoe Fits: Kasky v. Nike and Whether Corporate Statements about Business Operations Should be Deemed Commercial Speech, 70 BROOK. L. REV. 247, 280 (2004).
207. See also Stern, supra note 44, at 72-75 (summarizing arguments opposing First Amendment protection for commercial speech).
208. 418 U.S. 323, 339-40 (1974).
209. Id. at 340.
210. Id. at 341.
211. Under federal and most state unfair or deceptive acts legislation, a material representation or omission that is only likely to mislead is actionable. See supra note 31 and accompanying text.
212. See Brief for Petitioner at *40-43, Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (No. 02-575).
213. See also Kasky, 539 U.S. at 682-83 (Breyer, J., dissenting).
214. The Central Hudson test is set forth and discussed supra at text accompanying notes 64-71.
215. See, e.g., Bd. of Trs. of the State Univ. v. Fox, 492 U.S. 469, 477-78 (1989);
216. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569 (2001).
217. See supra notes 129-34 and accompanying text.
218. See generally New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (applying an actual malice standard to statements made by public officials);
219. Brief for Petitioner at *40-43, Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (No. 02-575) (arguing that an actual malice standard should be applied to the statements Nike made);
220. Ellen J. Pantaenius, To Speak or Not to Speak: The Interplay Between Unfair Trade Practice and Securities Laws Poses Challenges for Corporate Speech, 72 UMKC L. REV. 257, 263 (2003) (arguing that an actual malice standard is more appropriate for public relations statements).
221. See Cincinnati v. Discovery Network, 507 U.S. 410, 434 (1993) (Blackmun, J., concurring).
222. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 787-88 (1976) (Rehnquist, J., dissenting).
223. See Bolger v. Youngs Drug Corp., 463 U.S. 60, 68 (1983).
224. Under federal and most state unfair or deceptive acts legislation, a material representation or omission that is only likely to mislead is actionable. See supra note 31 and accompanying text.
225. See supra note 48 and accompanying text.
226. See supra notes 129-34 and accompanying text.
227. See supra notes 135-37 and accompanying text.
228. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n., 447 U.S. 557, 579 (1980) (Stevens, J., concurring). The modified analytical framework does not disturb the level of scrutiny applied to heavily regulated areas of speech in such areas as securities, antitrust, and campaign finance.
229. See, e.g., McConnell v. F.E.C., 540 U.S. 93, 203-09 (2003) (permitting regulation of corporate political advocacy);
230. ROME & ROBERTS, supra note 54, at 181-86 (providing examples in securities law);
231. id. at 177-81 (providing examples in antitrust regulation);
232. id. at 201-38 (providing examples related to campaign finance);
233. Thomas R. McCoy, Understanding McConnell v. FEC and Its Implications for the Constitutional Protection of Corporate Speech, 54 DEPAUL L. REV. 1043, 1066 (2005);
234. Antony Page & Katy Yang, Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional?, 39 U.C. DAVIS L. REV. 1, 42 (2005) (noting that "commentators often cite the securities industry as an example of a heavily regulated industry that justifies substantial government regulation.");
235. Free Speech Protections for Corporations: Competing in the Markets of Commerce and Ideas, 117 HARV. L. REV. 2272, 2282 (2004). The modified analytical framework maintains the same level of scrutiny for these types of heavily regulated commercial speech.