Page 303 - The Handbook of Persuasion and Social Marketing

Social Marketing and the Law 279

advertisement, and (3) it was prepared with the intent to make a profit
(Bolger v. Youngs Drug Products Corp., 1983). The court also noted that all
three conditions did not need to be present for a communication to be
considered commercial speech. Later U.S. Supreme Court decisions de-
fined commercial speech as that which did nothing more than propose a
commercial transaction (U.S. v. United Foods Inc., 2001; Board of Trustees of
State University of New York v. Fox, 1989, pp. 473–474).
More recently, the California Supreme Court held that when Nike re-
sponded to public criticism for its treatment of foreign workers with a se-
ries of press releases, letters to newspaper editors, and letters to university
presidents and athletic directors, its response was commercial speech. The
court reasoned that the communications in question were directed by a
commercial speaker to a commercial audience and made representations
of fact about business operations for the purpose of promoting sales of its
products. The court sent the case back for trial on the question of whether
any of the Nike statements were false or misleading (Kasky v. Nike Inc.,
2002).
The U.S. Supreme Court initially agreed to hear the case, but later a
majority of the justices dismissed the grant of certiorari as having been
improvidently granted because the case had not yet been tried on its mer-
its in the California courts. The dissent disagreed, noting that the decision
was final as to the issue of commercial speech and argued that the com-
munications at issue were not purely commercial, because they involved
information about a public controversy. Furthermore, the dissent argued,
the letters were not traditional forms of advertising, and they did not pro-
pose the sale of a product or any other commercial transaction. Rather, the
dissent noted, the speech had both commercial and noncommercial char-
acteristics that were “inextricably intertwined,” and therefore regulation of
such speech should receive heightened First Amendment scrutiny (Nike
Inc. v. Kasky, 2003).
Thus, while the precise boundaries between commercial and fully pro-
tected speech are difficult to define, it is clear, as discussed above, that
commercial marketing of products and services, even those that are so-
cially beneficial, could potentially be regulated as commercial marketing.
Corporate social responsibility campaigns consisting of charitable spon-
sorship/involvement, messages about responsible consumption, or both
also might be considered commercial speech because of their intent to
build brand involvement and develop a positive brand image, with the
ultimate goal of increasing sales. However, a second important goal of
such programs is to avoid government regulation by recruiting the support
of charitable partners and emphasize the importance of responsible