Commercial speech: set it free. (Competing Interests).

Corporations increasingly find themselves embroiled in worldwide controversies. Simply to sell their wares, companies now must prove their products are eco-friendly, low-calorie and sweatshop-free, but corporate America usually fights these battles handicapped. The First Amendment states that "Congress shall make no law...abridging the freedom of speech." The judiciary, however, has fashioned a gray area for "commercial speech." Corporate expression is an oft-neglected stepchild compared with its beloved siblings: political and artistic speech.

This tradition began with the Supreme Court case of Valentine restensen. In this 1942 decision, a businessman offered public tours of a submarine moored in New York's East River. He skirted a state ban on commercial handbills by printing a one-page manifesto on local docking laws. On the back side, he ran an ad inviting people to visit his sub. The Court held that the Constitution would prohibit a ban on all handbills, but put "no such restraint on government as respects purely commercial advertising."

From there the Court set sail. It has tacked back and forth, allowing commercial speech here while trimming it there. in some cases, it has imposed an elaborate, four-part "intermediate scrutiny test" to determine whether commercial-speech regulations are substantial, necessary and extensive-- all subjective factors.

Last November, at least two dozen corporations including ABC, Hearst and Newsweek asked the Supreme Court to hear a case that could clear much to the tog related to the second class treatment of commercial speech.

These firms oppose a California Supreme Court decision that empowered San Francisco activist Marc Kasky to sue Nike over what he calls falsehoods in its press releases, newspaper stories and other communications defending its allegedly harsh foreign labor practices. Kasky never claimed he was injured by Nike's words, a usual requirement in First Amendment cases. Nonetheless, the California high court would require Nike to surrender profits tied to statements found to be false.

In an amicus brief, Exxon Mobil, Bank of America, Microsoft, Monsanto and Pfizer warn that "the effect of these California statutes on First Amendment freedoms is both immediate and grave, threatening all corporate speakers with civil and criminal liabilities for engaging in protected speech."

This case has distracted Nike since 1998. CEO Phil Knight has stated his hope that "the company can redirect those critical resources that were diverted by the lawsuit towards its initiatives for continuously improving factory working conditions around the world."

So, should companies be free to say what they wish about their products? Why not? Imagine if Anheuser-Busch claimed that a daily six-pack of Bud Lite cured baldness. Hair-loss experts, consumer groups and its competitors would laugh Bud off the stage. More to the point, fraud laws compensate those deceived and injured by corporate lies. Attorneys would bruise each other trying to reach anyone who developed a beer belly while seeking to restore his hair line.

"Why should commercial speech be any different than political speech?" asks Bob Levy, a Cato Institute legal scholar. "This legal dichotomy is without any foundation whatsoever." He adds that "with political speech we don't have the fraud remedy; politicians lie all the time." Had President George H. W. Bush been held to the same standard as corporations, for example, Americans who believed his 1988 "Read my lips: no new taxes" pledge could have sued when he hiked taxes two years later.

Levy also notes that the First Amendment shields volatile speech such as flag burning, KKK oratory and Eminem's often homophobic and misogynistic rap lyrics. Yet the FDA prevents drug companies from discussing the secondary benefits of pharmaceuticals that doctors have popularized but federal bureaucrats have not yet approved.

Through the Nike case, the Supreme Court should padlock this hall of mirrors. It should grant corporations, consumers and officials equal protection, subject only to fraud laws for companies that can't handle the truth.

New York commentator Deroy Murdock is a columnist with the Scripps Howard News Service and a Senior Fellow with the Atlas Economic Research Foundation in Fairfax, Va.