The California Supreme Court, in the instant case, drew a distinction between noncommercial speech and commercial speech because such a distinction affected the type of constitutional interpretation that would be applied to the underlying facts. The court noted, as an initial matter, that the First Amendment of the United States Constitution prohibits actions or efforts to restrict speech. This right, however, is not unlimited and the United States Supreme Court has decided a number of cases in which it has attempted to classify what types of speech are protected and which types of speech fall outside of the First Amendments protection.
Generally speaking, these legal precedents emphasize that freedom of speech is intended to include what are known as political types of speech and noncommercial types of speech. These are fairly broad categories and it has been noted that According to these decisions, the First Amendment protects speech of a literary or artistic nature, speech dealing with scientific, economic, educational, and ethical issues, and expression on many other matters of public interest or concern. (Barnes, Bowers, et al., 2007, p. 63) These types of speech are intended to be firmly within the protections provided by the first amendment.
Consequently, courts must apply a strict scrutiny test that is quite difficult to satisfy in order to justify a restriction on speech. This type of strict scrutiny test requires that the government prove a compelling purpose of government that makes such a restriction necessary. This is a high burden and this is the primary reason why the classification of speech is important. It is important because there are other types of speech, such as yelling fire in a movie theater or commercial speech, which are not rendered the same degree of First Amendment protection. The person speaking, whether an individual or a corporation, is not the dispositive question indeed, it has been held that corporations and other legal creations can speak in ways that are deemed to be of a noncommercial nature. The dispositive question, and the question upon which First Amendment protection is predicated, is whether a particular speech is noncommercial or commercial. The California Supreme Court noted that Nike is a corporation and that its speech was designed to rehabilitate or otherwise salvage its tarnished image as an ethical corporation. It was therefore required to classify the nature of Nikes speech in order to determine whether and to what extant the speech might be constitutionally protected. Commercial speech has less protection. A problem arises, however, because The exact boundaries of the commercial speech category are not certain, though the Supreme Court has usually defined commercial speech as speech that proposes a commercial transaction. (Barnes, Bowers, et al., 2007, p. 63)
Kasky alleged false and misleading information, predicated on speech that was commercial and entitled to less First Amendment protection, and this is why the California Supreme Court went to such effort to explain and analyze the differences.
Question 2 Corporate Governance and Corporate Social Responsibility
Corporate governance and corporate social responsibility are closely related concepts. Corporate governance tends to refer to transparency and clear and ethical business operations. Corporate social responsibility, on the other hand, refers to business practices and behavior that is responsible to employees, consumers, and the communities in which the corporation operates. In a way, sound governance policies can help to support corporate social responsibility practices. These concepts relate to business ethics, although some have also argued that ethical business practices can also lead to better corporate profits in the long run. One of the motivations for the rise in the importance of these concepts is the perception that corporations only care about profits and exploit and abuse society in pursuit of profits in this respect, for instance, it has been noted that Critics, however, claim that corporations in their pursuit of profits ruin the environment, mistreat employees, sell shoddy and dangerous products, produce immoral television shows and motion pictures, and corrupt the political process. (Barnes, Bowers, et al., 2007, p. 94) Consequently, in order to counter these criticisms, corporations have sought to improve corporate governance and corporate social responsibility. This can be done in several ways. First, pertaining to governance, corporations need to conduct business operations in ways that are transparent. This transparency includes how decisions are made, how accounting records are maintained, and how financial decisions are made.
Transparency provides accurate information. Second, assuming transparency, corporations must hold employees, managers, and executives accountable for their mistakes and ethical lapses. This accountability must include ethical behavior as well as technical matters. Third, in terms of corporate social responsibility, corporations must first identify all stakeholders. This will allow the corporation to determine how its operations impact all stakeholders rather than only shareholders. Finally, once the stakeholders have been identified, the corporation should begin to adapt its corporate practices in ways that create harmony rather than conflict between and among shareholders.
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