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Abstract: A famous drawing, waggishly entitled "My Wife and My Mother-in-Law," can be perceived as depicting either a coquettish young woman or an ugly old hag. Nike's allegedly false and misleading statements about working conditions in its overseas factories present the conceptual equivalent of this picture: Viewed from one perspective, these statements appear to be commercial speech, while looked at from another angle, they seem to part of a public debate on a matter of public concern. Recognizing this ambiguity, United States Supreme Court Justice Stephen Breyer exclaimed during oral argument: "The truth of the matter is I think it's both. They're both trying to sell their product and they're trying to make a statement that's relevant to a public debate." In this article, I will attempt to fill the lacuna left by the California Supreme Court by focusing on precisely what free speech values are implicated by the application of California's false advertising regime to Nike's speech. To this end, I will first describe the overall structure of American free speech doctrine and then suggest what values best explain this structure. I will next inquire to what extent the application of California's legal regime threatens these norms. We will then be in a position to determine the appropriate level of First Amendment protection for Nike's speech.
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