From Nike V. Kasky to Martha Stewart: First Amendment Protection for Corporate Speakers' Denials of Public Criminal Allegations

Abstract

Richard Epstein once said that [i]t is difficult to conceive of ... a defense of freedom of speech so pure as to countenance securities fraud ... .' The regulation of false or misleading statements of material fact under the securities laws,2 like other regulations of false or misleading commercial speech, has been upheld under First Amendment analysis, despite the fact that such regulations necessarily curtail speech.3 This rubric is problematic, however, when applied to certain types of corporate speech that have become prevalent in today's climate of overlapping legal, political, social, economic, and popular culture.