Nike, Inc. v. Kasky, 539 U.S. 654, 23 (2003)

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Breyer, J., dissenting

To understand how I reach this conclusion, the reader must recall the nature of the holding under review. The California Supreme Court held that certain specific communications, exemplified by the nine documents upon which Kasky rests his case, fall within that aspect of the Court's commercial speech doctrine that says the First Amendment protects only truthful commercial speech; hence, to the extent commercial speech is false or misleading, it is unprotected. See supra, at 666.

The Court, however, has added, in commercial speech cases, that the First Amendment " 'embraces at the least the liberty to discuss publicly and truthfully all matters of public concern.' " Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 534 (1980); accord, Central Hudson, 447 U. S., at 562-563, n. 5. And in other contexts the Court has held that speech on matters of public concern needs " 'breathing space' "—potentially incorporating certain false or misleading speech—in order to survive. New York Times, 376 U. S., at 272; see also, e. g., Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974); Time, Inc. v. Hill, 385 U. S. 374, 388-389 (1967).

This case requires us to reconcile these potentially conflicting principles. In my view, a proper resolution here favors application of the last mentioned public-speech principle, rather than the first mentioned commercial-speech principle. Consequently, I would apply a form of heightened scrutiny to the speech regulations in question, and I believe that those regulations cannot survive that scrutiny.

First, the communications at issue are not purely commercial in nature. They are better characterized as involving a mixture of commercial and noncommercial (public-issue-oriented) elements. The document least likely to warrant protection—a letter written by Nike to university presidents and athletic directors—has several commercial characteristics. See Appendix, infra (reproducing pages 190 and 191 of Lodging of Petitioners). As the California Supreme Court

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