Nike, Inc. v. Kasky, 539 U.S. 654, 25 (2003)

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678

NIKE, INC. v. KASKY

Breyer, J., dissenting

United States, 354 U. S. 476, 484 (1957) (The First Amend-ment's protections of speech and press were "fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes"). That the letter is factual in content does not argue against First Amendment protection, for facts, sometimes facts alone, will sway our views on issues of public policy.

These circumstances of form and content distinguish the speech at issue here from the more purely "commercial speech" described in prior cases. See, e. g., United Foods, supra, at 409 (commercial speech "usually defined as speech that does no more than propose a commercial transaction" (emphasis added)); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 473-474 (1989) (describing this as "the test"); Central Hudson, 447 U. S., at 561 (commercial speech defined as "expression related solely to the economic interests of the speaker and its audience" (emphasis added)). The speech here is unlike speech—say, the words "dolphin-safe tuna"—that commonly appears in more traditional advertising or labeling contexts. And it is unlike instances of speech where a communication's contribution to public debate is peripheral, not central, cf. id., at 562-563, n. 5.

At the same time, the regulatory regime at issue here differs from traditional speech regulation in its use of private attorneys general authorized to impose "false advertising" liability even though they themselves have suffered no harm. See Cal. Bus. & Prof. Code Ann. 17204, 17535 (West 1997). In this respect, the regulatory context is unlike most traditional false advertising regulation. And the "false advertising" context differs from other regulatory contexts—say, securities regulation—where a different balance of concerns calls for different applications of First Amendment principles. Cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456-457 (1978).

These three sets of circumstances taken together—circumstances of format, content, and regulatory context—warrant

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