Introduction to the Special Section on Commercial Speech

In 1998, activist Marc Kasky sued Nike for alleged false advertising and unfair competition under California law. Kasky alleged that Nike made false statements in a variety of what we would usually consider non-advertising forums, including interviews and letters to the press. The Supreme Court of California permitted Kasky's suit to go forward, even though the statements were not a part of traditional paid commercial advertisements. The Supreme Court of the United States, which initially granted certiorari to review the case, dismissed the writ on June 26, 2003, leaving intact California's broad interpretation of its statute and narrow construction of the Constitutional speech protections that constrain that statute. What is typically referred to as “the Nike case” or “the Kasky case” can mean either Kasky v. Nike (as the case was originally filed) or Nike v. Kasky (when Nike appealed the lower court's judgment).