The distinction between commercial speech and speech that warrants the full protection of the First Amendment is a purposeful one, the point of which is not to silence companies from speaking about controversial issues, but to prevent them from making false claims about their products in order to exploit consumers. The difference between the two can be clear, or it can be so small as to be virtually indiscernible. It just so happens that the Nike suit concerns the latter category, which is why it’s such an important case.
Nike’s attempts to vindicate its labor practices abroad of course have an element of advertising; it would be absurd to argue otherwise. Public perception of how a company conducts business is at least weakly correlated with its livelihood.
But Nike’s protestations also transcend mere commercial speech, because they double as arguments in the larger issue of globalization — a debate that very much belongs in the public domain, where the First Amendment presides. A company should not be effectively barred from weighing in on an issue simply because it stands to profit from it; after all, personal benefit — whether it be material gain or moral gratification — is the driving force behind any opinion.
It is important to remember that this issue pertains to all businesses, not just the reviled Nike. If the California Supreme Court’s expansive definition of commercial speech is upheld, farms and pet stores could be sued for defending themselves against the claims of animal rights activists; logging companies could be sued for arguing that clear-cutting isn’t as bad as environmentalists allege.
Unless we are categorically, mindlessly anti-business, I think we can admit that these are matters about which reasonable people may disagree. Companies, just as the rest of us, should have the liberty to be wrong without being labeled liars and summarily thrust into court. Hell, they may even be right sometimes.