Like a poorly coached football team, the U.S. Supreme Court decided to punt ten yards from the end zone when it refused to decide the case of Nike v. Kasky. Nike, the most important commercial speech case in two decades, afforded an opportunity for the Court to define more clearly a very hazy but important area of constitutional law: the equal (or unequal) protection of speech based on the source. Businesses and consumers will suffer because of the Supreme Court's dismissal.
The First Amendment makes no distinction between political and commercial speech; categories for speech are a relatively recent creation of the Court. And the quagmire that now surrounds Nike demonstrates how distinctions between categories lack clear definition. Nike's defense of foreign working conditions served as arguments on globalization, free trade and red tape. But even if Nike's defense were purely commercial speech, the presence of financial interests does not invalidate the protections granted to expression. When commercial speech is attacked, ridiculous things happen.
In recent months, in cases involving players with far less power and fewer resources than Nike, we've seen numerous examples of how a nebulous "commercial speech" classification leads to straightforward attacks on the First Amendment.
In Mesa, Arizona, a doughnut shop struggles for the ability to communicate to potential customers. The City sent a "code enforcement officer" to Edward Salib's franchise to inform him that he could not advertise in more than 30 percent of his store windows. The City is so serious about this ordinance that press reports say it keeps an 80-page file on the doughnut shop that includes 24 pictures of the window signs to monitor changes. The Arizona constitution ensures that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." In this case, "every person" does not include Salib and "all subjects" does not include doughnuts.
In Redmond, Washington, the City ordered Blazin' Bagels "to cease and desist immediately" using mobile signs because they contain certain commercial content. By force of its display code, Redmond has decided it likes real estate and politics (interests that can display freely) but not bagels. Because the City wants to preserve the "aesthetics" of an intersection made up of a Home Depot, mobile home park, gas station, and a pancake house, Blazin' Bagels' business has dropped 75 percent. Apparently, the City's stimulus plan is to create more bagel-busting bureaucrat jobs.
Or take the case of ForSaleByOwner.com, a real estate service. California, potentially setting an example for all 50 states with such regulations, has outlawed ForSaleByOwner.com and affiliates because they distribute information about properties and relay offers between buyers and sellers. Despite the fact that ForSaleByOwner.com gives no advice, makes no recommendations, and does not represent anyone, regulators say this kind of activity requires an irrelevant and difficult to obtain brokers' license. Some have estimated that companies like ForSaleByOwner.com could save consumers up to $40 billion in brokerage fees by making use of their right to the flow of information. Others think that because money is involved, the constitution and the public interest, do not apply.
The Nike case forces the issue of commercial speech onto the public stage, where it belongs. In order to sort through questionable jurisdictional issues and legal outcomes, the Court abandoned the task of clarification and reinforcement of constitutional protection. We can only hope that the next opportunity for consideration of commercial speech comes quickly, and that when it does, the Supreme Court does not give up so close to the goal.