Nike responded that its letters were political speech, protected by the First Amendment. Last year California's high court ruled that the letters are not protected by the First Amendment because they constitute "commercial speech"–even though they address a political controversy and don't specifically mention any of Nike's products. The California court explained that its ruling merely requires that when a company "makes factual misrepresentations about its own products or its own operations, it must speak truthfully." Yet Nike's critics, including Mr. Kasky, are under no such legal obligation to tell the truth and do not have to fear any penalty if they are caught fabricating facts to use against Nike–because, the California court held, their speech is noncommercial.
I really hope Nike wins this thing. From what I have read on these sweatshops, they are some of the best jobs over there. This is a very interesting case, and the outcome will have major effects on American businesses.