Soon after, Nike wrote letters to Athletic Directors at Universities that it sponsored, as well as letters to editors of newspapers, media pamphlets and press releases. Those documents defended Nike's factory conditions as well as promoted the clean image of the company as a whole in an attempt to prevent loss of business as a result of the allegations. In 1998, Marc Kasky, a California resident, sued Nike on behalf of state asking the corporation to run ad-campaigns admitting they lied to the public, cease making those statements, and also to refund or donate all income from the shoes they sold during the time period that Nike falsely advertised it's innocence. After being dismissed from San Francisco Supreme Court in 1999, the California Court of Appeal confirmed the dismissal. However, the Supreme Court of California heard the case in 2002 and overturned the lower court decision and ruled in favor of Kasky saying that Nike was in fact using commercial expression . .
Given that there has been very little specific rulings as to what exactly defines commercial expression in terms of what types of documents and where the line is drawn, it's difficult to say which decision of whether or not Nike was using commercial speech was the most accurate. There have been only a handful of cases up until now which dealt specifically with this matter. The first being Valentine v. Christensen, (316 U.S. 52, 1942) which defined the term commercial expression. The second case dealt with deceptive practices in advertising and falsifications of claims made by the corporation in question. That case was the FTC v. Colgate-Palmolive Co., (380 U.S. 374 1965) in which the Federal Trade Commission won creating a standard for advertisers worldwide to tell the public the whole truth regarding their product, regardless of the light it might cast on their company. Next was Bigelow v. Virginia, (421 U.S. 809 1975) which held that the "presence of commercial aspects' does not negate all First Amendment guarantees.
