Kasky went on to say that this was a case of false advertising and that this clearly constituted commercial speech, this was important because the protection that is offered under the First Amendment offers protection to non commercial speech and does not in any way protect commercial speech. Nike’s response stated that the laws on false advertising did not cover the company’s expression of its views in respect of public issue and the fact that such views were clearly protected under the First Amendment as what had been said and done by Nike was non- commercial speech. The trial court agreed with the arguments of Nike and went on to say that such action was non-commercial speech and was therefore protected under the federal and state constitutions without leave to amend.
The Plaintiff appealed to the Court of Appeal which in turn acknowledged the findings of the trial court and stated the same things that is what was important was the fact that the alleged false and misleading statements by Nike were commercial or non-commercial. This was so because it would determine the protection that was offered by the First Amendment. The court went on to reiterate the fact that these were non commercial speech and so protection under constitutional free speech provisions was provided. Thus the Court of Appeal granted the plaintiff’s petition for review.
Thus the main issues that needed to be determined first were whether the speech that was made by Nike was commercial or non-commercial. This would be necessary because of the degree of protection provided as well as determination of false advertising.
In the current scenario it is clear that the requirement that a person making such a statement gives it as a commercial speaker is satisfied, this is because the persons who gave such statements were in business. Furthermore, the main reason for giving such a statement was to protect