SECOND EXAM STUDY GUIDE:

Nike v. Kasky, 45 P.3d 243 (CA 2002)

• What were the facts of the case?
   
  
• What is the issue in the case?
   
  
• What were the findings of the two lower courts?
   
  
• Did the California Supreme Court decide that Nike had actually made false statements?
   
  
• What are the tests applied to content-based government regulation of non-commercial speech and of commercial speech? What is the difference between the tests? (Remember: These are the tests courts apply to determine if the government regulations are permissible under the First Amendment.)
   
  
• What was the decision of the California Supreme Court?
  • What were the First Amendment-related reasonings of the court's majority and dissenting opinions?
     
    
  • What was the majority's reliance on Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)?
     
    
  • Why was the speech by Nike "more easily verifiable by its disseminator" and "less likely to be chilled by proper regulation"? Why would government regulation of Nike's speech about working conditions in factories where Nike products are made be consistent with traditional government authority to regulate commercial transactions for the protection of consumers by preventing false and misleading commercial practices?
     
    
  • Could Nike immunize its commercial speech by intermingling it with non-commercial speech?
     
    
  • Why did the majority opinion not discriminate against viewpoints or speakers?
  
   
  
• Time for you to apply what you know and do some reasoning of your own regarding the California Supreme Court's reasoning. Be able to explain/defend your answer.
  • Was the majority correct when it created and applied the three-factor test?
     
    
  • Was Nike's public relation campaign more of a comment on a public issue or was it more concerned with the production of Nike's own goods?
     
    
  • Should the majority's decision and reasoning chill political and social speech by businesses?
     
    
  • Did the majority's definition of commercial speech sweep too broadly and encompasses speech that does not have a direct nexus to government regulation of commerce?
     
    
  • What could the U.S. Supreme Court have accomplished in ruling on this case? (Hint: It has to do with Bolger.)
     
    
  • Was the majority correct that a broad definition of "product references" is necessary?
     
    
  • Do labor practices of companies matter to consumers? Did Nike think consumers care?

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