Nike, Inc. v. Kasky, 539 U.S. 654, 24 (2003)

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Cite as: 539 U. S. 654 (2003)

Breyer, J., dissenting

implicitly found, 27 Cal. 4th, at 946, 45 P. 3d, at 247, it was written by a "commercial speaker" (Nike), it is addressed to a "commercial audience" (potential institutional buyers or contractees), and it makes "representations of fact about the speaker's own business operations" (labor conditions). Ibid. See, e. g., Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 66-67 (1983).

But that letter also has other critically important and, I believe, predominant noncommercial characteristics with which the commercial characteristics are "inextricably intertwined." Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796 (1988). For one thing, the letter appears outside a traditional advertising format, such as a brief television or newspaper advertisement. It does not propose the presentation or sale of a product or any other commercial transaction, United States v. United Foods, Inc., 533 U. S. 405, 409 (2001) (describing this as the "usua[l]" definition for commercial speech). Rather, the letter suggests that its contents might provide "information useful in discussions" with concerned faculty and students. Lodging of Petitioners 190. On its face, it seeks to convey information to "a diverse audience," including individuals who have "a general curiosity about, or genuine interest in," the public controversy surrounding Nike, Bigelow v. Virginia, 421 U. S. 809, 822 (1975).

For another thing, the letter's content makes clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail. In particular, the letter describes Nike's labor practices and responds to criticism of those practices, and it does so because those practices themselves play an important role in an existing public debate. This debate was one in which participants advocated, or opposed, public collective action. See, e. g., Lodging of Petitioners 143 (article on student protests), 232-236 (fact sheet with "Boycott Nike" heading). See generally Roth v.


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