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This paper addresses how the law defines public relations under the First Amendment. The United States Supreme Court’s denial of certiorari and California Supreme Court’s decision in Nike v. Kasky (2002, 2003) categorized PR as commercial speech, which is subject to the same regulations as advertising. In the twelve years since those decisions were issued, federal and state appellate courts have re-interpreted Nike v. Kasky (2002, 2003) in a variety of ways. This study found that since 2003 courts have consistently held that PR is not always commercial speech. From this analysis a legal definition of public relations is presented, and implications for PR practitioners are discussed.
Nike v. Kasky (2002, 2003) is a legal watershed for public relations practice because it made lawyers and practitioners evaluate the legal definition of PR. From an analysis of Nike v. Kasky (2002, 2003) and the cases that followed, it seems that the legal definition of PR is as complex as the field itself. It shows that U.S. courts are likely to see public relations practice as more than promotional advertising because it functions as a form of communication that disseminates content on important issues. These case law developments also show that for many courts public relations is understood in many of the same ways that Ivy Lee articulated over a century ago. Of course, it is not known what, if anything, judges know about the professional field of public relations. However, these cases do show that courts are not so willing to categorize PR as a homogeneous form of communication. While PR practice is still negotiating its legal identity it seems that currently the legal definition of the field at least acknowledges that PR has elements of establishing public trust, maintaining relationships, and fostering dialogue.