The legal challenge of integrated marketing communication (IMC): integrating commercial and...

Integrated marketing communication (IMC) has been recognized as "the major communications development of the last decade of the 20th century" (Kitchen et al. 2004, p. 20), "one of the hottest topics in the whole marketing arena" (Schultz 1993, p. 6), and "the dominant marketing concept of the

At the same time, scholars and practitioners recognize significant challenges in IMC's future. Fundamental questions regarding the purpose and scope of IMC still must be resolved (Kitchen 1999; Shimp 2000). Theoretical foundations of IMC must be established (Cornelissen 2001; Kitchen et al. 2004; Schultz and Kitchen 2000). An effective means of measuring IMC must be developed (Swain 2004). A viable organizational structure must be agreed on (Wightman 1999), and the practical realities of adopting IMC as an operating philosophy must be addressed (Smith 2002).

Another matter that could be significant to the development of IMC is the legal and regulatory environment. Of particular importance is whether the merging of the traditionally separate communication functions of marketing, advertising, and public relations in an effort to unify corporate messages may affect the constitutional protection afforded corporate speech, or the full range of a corporation's political and commercial expression. A significant concern is whether public relations messages--widely believed to be political expression fully protected under the First Amendment--that are intermingled with commercial messages as a result of IMC might be interpreted by the courts to be commercial speech and afforded only limited constitutional protection. If so, such messages would be subjected to the strict standards for truthfulness historically applied to advertisements and other forms of promotions.

This paper addresses the issue by examining First Amendment theory--specifically commercial speech doctrine--in the context of integrated marketing communication in an effort to determine the constitutional impact of combining corporate commercial speech and corporate political speech. The specific research question is, Does the integration of public relations messages with advertising and marketing messages alter First Amendment protection afforded corporate expression?

This question is answered through review and analysis of key U.S. Supreme Court decisions that illustrate the Court's evolving views on commercial speech regulation. Although the Court has not directly addressed the issue of constitutionally permissible restrictions on IMC practices, the cases provide important insight into likely future decisions regarding the constitutional status of integrated marketing communication. As Pratt observed, "it is logical to assume that the Court will use already formulated doctrines as 'templates' in deciding the appropriate level of First Amendment protection for public relations expression" (1990, p. 206). The review of cases is followed by an examination of how commercial speech precedents were applied in a recent California Supreme Court decision that expanded the definition of commercial speech to include public relations statements. This case, Kasky v. Nike, Inc. (2002), serves as an example of the potential legal challenges associated with integrated communication practices.

This research addresses an important question that has received little consideration in scholarly and professional discussions of IMC. A number of legal studies have examined the distinctions between commercial and political speech and, more recently, the First Amendment implications of Kasky v. Nike, Inc. (see, e.g., La Fetra 2004; Marcantonio 2003; McIntyre 2004; Paladino 2004). In the advertising context, earlier studies explored the possibility for heightened regulation of image and advocacy advertisements that address both political and commercial matters (see, e.g., Cutler and Muehling 1989; Lin 1988). Yet the legal implications of IMC have not been addressed. This work helps to fill that gap by examining the possibility for heightened regulatory scrutiny of public relations messages as a result of integrated practices.

From a managerial perspective, the work is significant because it examines a key legal issue that could influence the development and practice of IMC. For example, legal risks associated with integration could create reluctance on the part of company leaders to adopt IMC models. Legal risks could affect strategic planning and tactical implementation of IMC efforts, including decisions about the placement and structure of IMC functions. Legal concerns could also lead to "chilled" speech by corporations fearful of lawsuits based on increased speech standards for evaluating deceptive practices.

This work responds to Kim, Han, and Schultz, who called for "further academic attention to help identify various development paths IMC might take in the various nations and countries of the world," including "the various factors that influence the implementation of IMC" (2004, p. 44). The study supports their finding that the marketing environment can present some possible barriers to integration of communication by adding legal and regulatory issues to the social, cultural, and institutional factors "that can act either to promote or to impede the development of IMC" in the United States (ibid.).

IMC AND PUBLIC RELATIONS

By definition, integrated marketing communication involves the merging of distinct communication functions in a way that allows an organization to speak with "one voice, one look." According to Shimp (2000), one of the defining features of IMC is that it uses all forms of communication and all sources of brand or company contacts as prospective message delivery channels. The ultimate goal is to influence buying behavior through directed persuasive communication targeted to a broad range of stakeholders that influence brand image and organizational reputation. As noted in a 2004 IMC white paper, IMC today is about more than just advertising and promotion. Indeed, "[i]t is increasingly being recognized that other stakeholders--employees, suppliers, channel members, and the media--play critical roles in defining brands and reputations of organizations" (Duncan and Mulhern, p. 8).

It seems clear that public relations, which is widely viewed as the function responsible for managing an institution's communication with its publics (see Cutlip, Center, and Broom 1994, p. 2), would play a prominent role in such efforts. In fact, there is growing evidence that public relations has become an integral part of IMC in companies that recognize the importance of communicating clear and consistent messages about their products, services, and practices to consumers who don't distinguish internal message sources (see Miller and Rose 1994). One recent study in the United Kingdom found that public relations was "one of the most important aspects of the marketing mix" (Gray 1998, p. 24). As Smith observed, the link between public relations and marketing is "often assumed by people and forces outside the professions more readily than it may be recognized from within" (2004, p. 6).

In fact, it was this "outside-in" perspective that propelled the inclusion of public relations in IMC. Caywood argued that "[m]ore than other professions, public relations strengthens the outside-in perspective of an organization through its managed relationships with many stakeholder groups inside and outside the organization" (1997, p. xii). As experts in the managing of communication, he said, public relations professionals offer organizations "the greatest experience and skill using various communications-based strategies and tactics" (p. xii).

Others have noted that "the full breadth of public relations" (Moriarty 1994, p. 44) is important in IMC programs. Moriarty observed that since "IMC is focused on the total corporate or brand image, it is important to turn to public relations for a more global understanding of how impressions are created" (ibid.). Indeed, the fact that IMC is increasingly viewed as more strategic than executional, involving more stakeholders than just customers and including two-way as well as one-way communication (see Duncan and Mulhern 2004), suggests an even greater role for public relations in IMC--a role that extends beyond publicity to include broader-based public relations strategies and tactics designed to enhance an organization's relationships with its publics.

At the same time, the blending of the traditional communication functions may create a message development process in which the lines between political and commercial expression become blurred, creating a significant legal challenge for IMC: finding a way to reap the benefits of unified public relations, advertising, and marketing messages, while preserving constitutional safeguards on corporate expression.

CORPORATE SPEECH AND THE FIRST AMENDMENT

It is a well-established principle in First Amendment law that corporate speech dealing with issues of public interest and importance is fully protected under the U.S. Constitution (First National Bank of Boston v. Bellotti 1978). While not absolute, ideological, or "political" speech, involving matters of public concern "occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection" (Connick v. Myers 1983, p. 145, citing NAACP v. Claiborne Hardware Company 1982, p. 913). Even false political speech is fully protected to provide the "breathing space" needed to prevent the chilling of communication through prior restraints (see Near v. Minnesota 1931).

At the same time, nonideological, or "commercial," speech intended to promote commercial transactions is entitled to only limited First Amendment protection conditioned on its truthfulness. The U.S. Supreme Court has held that "the States and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading" (Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio 1985, p. 638). Commercial expression in the U.S. is regulated primarily by the Federal Trade Commission (FTC) and the 50 states, all of which have enacted legislation aimed at preventing unfair or deceptive "advertising" practices.

Thus, a threshold issue in determining the constitutional status of corporate messages is whether the speech in question is political speech entitled to full protection of the First Amendment or commercial speech afforded only limited constitutional protection (see Bolger v. Youngs Drug Products Corporation 1983, p. 65). Although the issue of permissible restrictions on public relations expression has not been directly addressed by the Court, a recent review of Supreme Court cases in which the term "public relations" or one of its many synonyms was used concluded that the Supreme Court would most likely treat public relations speech as "political speech, protected at the highest level" (Petersen and Lang 2000, p. 35). Advertising and marketing practices, on the other hand, have been clearly defined by the Court as commercial expression afforded only some protection under the First Amendment (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 1976).

In cases in which political speech is blended with commercial speech, the Court must determine whether the combined expression is "inextricably intertwined" such that it cannot be separated for regulatory purposes and is therefore entitled to the full protection of the First Amendment (see Riley v. National Federation of the Blind 1988, p. 796). If the Court finds that political speech and commercial speech are simply intermingled--the likely scenario in IMC efforts--the Court may determine that the commercial speech and political speech should be separated such that the political portion receives the full protection of the First Amendment, whereas the commercial portion receives only limited protection. Another possibility is that the Court may decide that the intermingled speech in its entirety should be classified as political expression and afforded full constitutional protection, or, in the alternative, that the intermingled speech in its entirety should be classified as commercial speech and provided limited protection.

Evolving Commercial Speech Doctrine

For much of the twentieth century, commercial speech received no protection under the First Amendment. Indeed, in a 1942 case in which the U.S. Supreme Court upheld a New York City ordinance that banned advertising leaflets on city streets, the Court found that "purely commercial advertising" designed to promote a business transaction was not worthy of constitutional protection (Valentine v. Chrestensen 1942, p. 54). The court also ruled that the prohibition on advertising could not be avoided by amending a political message to an advertisement or, in other words, by combining political and commercial speech.

The Court later reversed course, finding that "the relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas" (Bigelow v. Virginia 1975, p. 826). In a 1975 case in which the Court struck down a state statute prohibiting the advertisement of abortion services, the Court observed that commercial advertising deserves "a degree" of protection (ibid., p. 821). Yet, while emphasizing that speech appearing in the form of an advertisement clearly is not "stripped of First Amendment protection" (ibid., p. 818; see also New York Times v. Sullivan 1964, p. 266), the Court failed to provide clear criteria for defining commercial speech, saying, "The diverse motives, means, and messages of advertising may make speech 'commercial' in widely varying degrees" (Bigelow v. Virginia 1975, p. 826).

Two years later, the Court found a Virginia statute that prohibited licensed pharmacists from advertising the prices of prescription drugs to be an unconstitutional violation of the First Amendment (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 1976). Recognizing an informational value in commercial expression, the Court ruled that "purely commercial" speech, defined as "speech which does no more than propose a commercial transaction" should be afforded limited constitutional protection "to insure that the flow of truthful and legitimate commercial information is unimpaired" (ibid., p. 772). Any type of speech that lacks all First Amendment protection, the Court reasoned, must be distinguished by its content, not simply because it is "speech on a commercial subject" (ibid., p. 761).

At the same time, the Court noted that because commercial speech is "the offspring of economic self-interest," it is less likely to be "chilled" by regulation than is political expression. Commercial speech is both "more durable" and more easily verified, the Court said, because it deals with matters about which the speaker has knowledge and control (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 1976, p. 772, n. 24). In 1980, the Court broadened the definition of commercial speech to include "expression related solely to the economic interests of the speaker and its audience" (Central Hudson Gas & Electric Co. v, Public Service Commission 1980, p. 561), effectively expanding the scope of messages that may be deemed commercial.

The question of how to deal with political speech mixed with commercial speech was addressed directly in Bolger v. Youngs Drug Products Corporation, a 1983 case involving a state statute that prohibited the unsolicited advertisement of contraceptives. In determining whether promotional and informational flyers distributed as part of a corporate campaign fell within the "core notion of commercial speech," defined in this case as "speech which does no more than propose a commercial transaction" (1983, p. 66), the Court found that while most of the materials were properly categorized as commercial speech and, therefore, could be regulated, the informational pamphlets required greater scrutiny.

Relying on what it called a "common sense" distinction, the Bolger Court found that neither the advertising format of the flyers nor references to a specific product or service was necessarily determinative in a finding that the materials were commercial speech (1983, p. 64). The Court also said, "economic motivation would clearly be insufficient by itself to turn the materials into commercial speech" (ibid., p. 67). The Court concluded, however, that the presence of all three elements provided "strong support" for a determination that the informational pamphlets were properly characterized as commercial speech (ibid., p. 67).

With respect to the fact that the mailings contained discussions of important public issues, the Court said that advertising that "links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech" (Bolger v. Youngs Drug Products Corporation 1983, p. 68). Perhaps most important with regard to IMC, the Court continued, "A company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions" (ibid.; emphasis added).

In 1988, the Court again addressed the proper assessment of combined commercial and noncommercial expression, reaching a different conclusion. In a case involving a constitutional challenge to the fee disclosure provisions of North Carolina's Charitable Solicitations Act, the Court found that commercial speech "does not retain its commercial character when it is inextricably intertwined with the otherwise fully protected speech" (Riley v. National Federation of the Blind 1988, p. 796). According to the Court, the nature of the speech "taken as a whole" must be considered when determining constitutional protection (ibid.). "[W]here, as here the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression" (ibid.).

The Court returned to the question of blended political and commercial speech in a 1989 case involving a New York state regulation that prohibited the operation of commercial enterprises in student dormitories (Board of Trustees v. Fox 1989). Here, a group of students protested a ban on Tupperware-type parties at which household products were offered for sale amidst discussions about such matters as how to run an efficient home. The Supreme Court upheld the ban, finding that the combined commercial and political speech was not "inextricably intertwined" such that the entirety had to be classified as noncommercial.

In 1993, the Supreme Court presented yet another standard for determining the commercial or noncommercial nature of corporate speech in a case in which the Court found a Florida statute that banned "direct, in-person, uninvited solicitation" by certified public accountants to be an unconstitutional restriction (Edenfield v. Fane 1993, p. 764). Acknowledging that "ambiguities may exist at the margins of the category of commercial speech" (ibid., p. 765), the Court found the personal solicitations to be commercial expression, which the court defined as speech that "is linked inextricably with the commercial arrangement that it proposes" (ibid., p. 767).

This review of U.S. Supreme Court cases shows that U.S. commercial speech doctrine is unsettled. The research indicates that future decisions regarding First Amendment protection for integrated marketing communication will be made on a case-by-case basis applying indefinite Supreme Court standards. As Table 1 illustrates, the Court has provided a confusing array of findings regarding the definition and nature of commercial speech. The 2002 Kasky v. Nike, Inc. case, in which these precedents were applied, provides important insight into the potential impact of such imprecise rulings.

Kasky v. Nike, Inc.

In the mid-1990s, Nike, Inc. responded to extensive public criticism of its labor practices with a public relations campaign that included letters from Nike representatives to university presidents and athletic directors, a pamphlet explaining the company's labor practices, news releases objecting to "sweatshop" allegations, a posting on its Web site about its "code of conduct," a letter to the editor of the New York Times in which Nike defended its labor practices, and advertisements in leading newspapers to publicize a positive report from a private investigation of working conditions in Nike factories.

In 1998, California resident Mark Kasky sued Nike, charging that through its public relations campaign, the company had engaged in unfair and deceptive practices under California's false advertising statute. Kasky asserted that Nike had made a number of false statements regarding the working conditions under which Nike products are manufactured (Kasky v. Nike, Inc. 2002). In court, Nike successfully argued that because its communication was constitutionally protected free speech, the suit was barred by the First Amendment. The California Court of Appeals affirmed the trial court's decision, but the California Supreme Court reversed and remanded for further proceedings to determine whether any false representations were made.

Noting that the U.S. Supreme Court had not adopted an "all-purpose test" to distinguish commercial from noncommercial speech, the California Supreme Court found that "a close reading" of commercial speech precedents suggested that "it is possible to formulate a limited-purpose test" (Kasky v. Nike 2002, p. 960) requiring consideration of three elements: a commercial speaker, an intended commercial audience, and representations of facts of a commercial nature.

In applying this new test, the court found that the first element was satisfied because the speakers, Nike, and its officers and directors, were engaged in commerce. The second element was met because Nike's letters to university presidents, athletic directors, and to the New York Times were addressed directly to actual and potential purchasers of Nike products. The letter to the editor, for example, referred to Nike's labor practices in saying that "[c]onsumers are savvy and want to know they support companies with good products and practices" and that "[d]uring the shopping season, we encourage shoppers to remember that Nike is the industry's leader in improving factory conditions" (Kasky v. Nike, Inc. 2002, p. 963).

The third element was met, according to the court, because Nike made factual representations about its own business practices in describing its own labor practices and working conditions in factories where its products were made. The court observed that Nike addressed matters within its own knowledge, putting the company in a position "to readily verify the truth of any factual assertions it made on these topics" (ibid.).

The court further found that Nike's statements were "not removed from the category of commercial speech because they were intermingled with noncommercial speech" (ibid., p. 966). In order for the messages to be "inextricably intertwined," the court said, there would have to be "some legal or practical compulsion to combine them" (ibid., p. 967). In this case, "[n]o law required Nike to combine factual representations about its own labor practices with expressions of opinion about economic globalization, nor was it impossible for Nike to address those subjects separately" (ibid.). Nike's speech loses the full measure of constitutional protection, the court said, "only when it concerns facts material to commercial transactions" (ibid.).

In so ruling, the court created a new test for defining commercial speech, significantly expanding the types of corporate expression that can be categorized as commercial speech under California law. The impact of the decision reaches far beyond the state's borders, however, because the new law applies not only to the communication of California-based companies, but also to the communication of any company that does business in that state or whose messages reach California citizens.

DISCUSSION

This review of U.S. commercial speech doctrine demonstrates that the integration of public relations messages with advertising and marketing messages may alter First Amendment protection afforded corporate speech by diluting the constitutional safeguards historically applied to public relations expression. However, the U.S. Supreme Court's evolving doctrine on commercial speech lacks both the consistency and predictability needed for corporations to fully evaluate the legal risks of integration.

In applying U.S. Supreme Court precedents to IMC, it seems certain that traditional product/service advertising, as well as marketing-related public relations messages, will be classified as commercial speech and regulated as such. The analysis also suggests that public relations communication designed to enhance brand and organizational image, and including representations of fact about a company's products, services, and/or business, might also be included under the commercial speech umbrella. Both publicity efforts designed to promote products and services and other forms of public relations communication, such as corporate image advertising, institutional branding messages, and social responsibility reports, might be deemed to constitute commercial expression.

Bolger (1983) provides the strongest evidence of the U.S. Supreme Court's willingness to designate public relations communication as commercial speech when it is part of an integrated commercial campaign. The Court's finding that informational mailings "constitute commercial speech notwithstanding the fact that they contain discussions of important public issues" (1983, pp. 68-69) is particularly instructive. Even more compelling is the Court's statement that there is no reason to provide full constitutional protection for such statements "when they are made in the context of commercial transactions" (ibid., p. 68), suggesting that public relations expression that is part of an integrated marketing campaign could properly be interpreted as commercial speech.

Further evidence is found in the fact that the Bolger Court (1983) chose to view Youngs Drug Products Corporation's speech in its entirety as commercial rather than attempting to separate the commercial and noncommercial components and regulate them accordingly. Kasky applied similar reasoning in rejecting the argument that Nike's statements should be removed from the category of commercial speech because they were "intermingled with noncommercial speech" (2002, p. 967).

Of course, it should be noted that in cases in which the courts find that corporate campaigns include commercial speech and noncommercial speech that is indeed "inextricably intertwined," the entirety of the combined speech would be afforded the full protection of the First Amendment, thereby enhancing the constitutional protection afforded corporate speech. For example, an alternative ruling in Kasky could have found that all of Nike's statements, including those designated as commercial speech, were entitled to full protection under the First Amendment.

Such cases are likely to be exceptions rather than the rule, however, in the context of IMC. The Court has consistently emphasized that a company has the ability to separate political messages from commercial messages to safeguard constitutional protection. In addition, it has stressed that commercial speech cannot be immunized from regulation simply by attaching it to protected political expression.

These findings indicate that that the Court is most likely to either separate combined corporate speech for regulatory purposes or to consider the speech in its entirety to be commercial and regulate it as such. Clearly, such an approach supports the Court's dual interests in preventing the suppression of speech on matters of public interest and in avoiding harms caused by false and deceptive commercial communication.

Although the U.S. Supreme Court has failed to provide a litmus test for defining commercial speech, it has identified criteria related to both content and context as significant in determining the nature of corporate expression. Indeed, one of the earliest cases to recognize the need for constitutional protection of commercial communication stated that "motives, means and messages" all might be important factors in defining commercial expression (Bigdow v. Virginia 1975, p. 826).

Virginia State Board of Pharmacy (1976) indicated that content is the most important element in judicial determinations regarding the nature of corporate speech. Yet neither this nor succeeding decisions provide clear direction on exactly what types of expression constitute commercial content. While Bolger noted that references to products/services could contribute to such determinations, it stopped short of saying that such references were "a necessary element" (1983, p. 67, n. 13) of commercial speech.

In interpreting Bolger (1983), Kasky (2002) observed that it did not understand "product references" to mean only statements about price, qualities, or availability of items offered for sale. Rather, Kasky interpreted "product references" to mean, "for example, statements about the manner in which the products are manufactured, distributed, or sold, about repair or warranty services that the seller provides to purchasers of the product, or about the identity or qualifications of persons who manufacture, distribute, sell, service, or endorse the product" (2002, p. 961). Such broad interpretation was necessary, according to Kasky, "to adequately categorize statements made in the context of a modern, sophisticated public relations campaign intended to increase sales and profits by enhancing the image of a product or of its manufacturer or seller" (ibid., pp. 961-962). Certainly, if other courts adopt such reasoning, it could mean that a broad range of public relations messages not directly tied to product or service features are susceptible to commercial speech regulation.

Other factors cited by the U.S. Supreme Court as potentially significant are commercial intent, a commercial audience, and "advertising" format. Such factors may not be determinative when standing alone, but the Court has said that a combination could be persuasive. For example, Bolger (1983) ruled that while a finding of economic motivation would be insufficient by itself to turn informational materials into commercial speech, the combination of this and other characteristics supported a finding that the materials were properly classified as commercial.

The Bolger Court (1983) also seemed to assume that the fact that a company is engaged in commerce and undertakes a campaign of unsolicited mass mailings of promotional and informational flyers to members of the public shows economic motivation. Virginia State Board of Pharmacy provided additional evidence of such reasoning in finding that "we may assume that the advertiser's interest is a purely economic one" (1976, p. 762).

Since more than the commercial status of a company is required to show commercial intent, however, a court will seek additional proof that particular messages are economically motivated. For example, communication aimed directly at consumer audiences is most likely to be viewed as commercial. It should be noted, however, that Kasky interpreted the "intended audience" of commercial speech to include both "actual or potential buyers or customers of the speaker's goods or services or persons (such as reporters or reviewers) likely to repeat the message to or otherwise influence actual or potential buyers or customers" (2002, p. 960). Again, if adopted by other courts, this broad reading, which allowed the Kasky court to include many of Nike's public relations materials in the category of commercial expression, could significantly increase the types of corporate messages subject to regulation under commercial speech doctrine.

Although Bolger (1983) found that the format of a particular communication was not conclusive proof of commercial expression, the Court indicated that an "advertising" format could be a factor that contributed to the definition of commercial speech. Thus, in the presence of other commercial characteristics, particular channels of communication might also be significant in influencing a court's decision. At the same time, these cases provide no indication that internal message sources would influence judicial decisions on such matters. In other words, a court is not likely to inquire about whether a particular message was produced by an advertising, marketing, public relations, or IMC unit.

IMPLICATIONS

This review of cases illustrates considerable uncertainty surrounding future regulation of corporate communication under evolving U.S. commercial speech doctrine. The lack of clarity in U.S. Supreme Court precedents provides a fuzzy picture of the potential impact of IMC on a corporation's First Amendment rights. At the same time, the work reveals the potential for IMC to broaden the range of corporate messages subjected to judicial scrutiny, both increasing a company's legal exposure and expanding government regulation of corporate speech.

Perhaps the most important finding is that public relations expression is not fully protected under the First Amendment as both conventional wisdom and some scholarly studies have suggested (see, e.g., Petersen and Lang 2000). Public relations communication designed--and viewed by the courts--to support marketing objectives clearly falls within the category of commercial expression for regulatory purposes. Indeed, this would be true whether a company adopts an IMC model or applies a more traditional multidisciplinary approach to corporation communication. In addition, it should be emphasized that not all public relations communication will be automatically categorized as commercial if a company integrates its communication functions. The Supreme Court has made it clear that corporations enjoy the right to engage in fully protected speech in the political arena.

The issue significant to this study is whether IMC broadens the scope of corporate communication messages that may be viewed and regulated as commercial speech. The research indicates that it could. Although the Supreme Court has provided a confusing legal framework that fails to clarify exactly when a company's communication crosses the line from the political to the commercial marketplace, IMC practices could have some influence on where that line is drawn. The study suggests that the affiliation of nonmarketing-related public relations messages with less protected forms of commercial communication may increase the possibility for messages traditionally viewed as political to be classified as commercial for regulatory purposes.

While this finding does not necessarily warrant a lesser role for public relations in IMC, it does mean that corporations with integrated communication functions should take steps to diminish the threat of litigation and potential liability by addressing the risks associated with integration early in the IMC process. Companies should be mindful of the full range of factors that could influence a court's determination of the constitutional status of corporate messages and should be fully aware of federal and state laws related to commercial speech. Because IMC involves the management of "all brand messages, not just those produced by traditional advertising and promotion" (Duncan and Mulhern 2004, p. 16), such understanding of the legal and regulatory environment is critical.

For example, the potential legal impact of internal structures and operating philosophies should be considered--particularly the effects of an IMC mindset that leads to the development of mixed commercial and political messages. While the unification of corporate communication functions and messages could have a significant positive impact on brand and organizational image, it could also lead to legal problems. An internal operating environment in which IMC professionals attempt to influence nonmarketing communication messages to achieve maximum impact for advertising and marketing efforts could blur the distinctions between political and corporate speech, causing company writers and spokespersons to inadvertently link political messages to marketing messages, thus increasing a company's legal exposure. As an example, in the Kasky case, the Nike spokesperson's reference to customers and the shopping season in comments regarding labor practices was cited by the court as evidence of commercial intent.

Although there may not be one "best" IMC structure for addressing such risks, companies that choose to integrate their communication functions should adopt a model that allows for the strategic integration of corporate communication objectives and tactical separation of corporate commercial and noncommercial messages. In other words, to the extent possible, corporate messages related to a company's views on matters of public concern should be disseminated separately from messages about products, services, brands, and the organization. This "strategic integration/tactical separation" approach will help prevent political messages from being linked to commercial messages in the eyes of the courts. Thus, just as broader corporate decisions should be screened for "how they affect the brand" (Duncan and Mulhern 2004, p. 15), corporate messages--including the context in which they are disseminated--should be screened for how they might affect judicial perceptions regarding the nature of the communication.

With respect to public relations messages particularly, publicity and other promotional efforts designed to attract media and public attention to a company and/or its products or services may be most likely to generate public scrutiny and become the targets of potential lawsuits. However, other forms of public relations communication also might form the basis of a legal claim. For example, a company's annual financial report, an executive speech, or a company fact sheet might include statements that could be called into question. Given the uncertainty regarding the potential impact of both content and context on judicial determinations regarding the nature of corporate speech, companies should consider a broad range of corporate messages to be commercial for regulatory purposes.

Because an integrated approach to corporate communication may diminish the "breathing space" provided for potentially misleading or false corporate statements, IMC professionals and lawyers should work together to ensure that an appropriate level of due diligence is performed to confirm the truthfulness of all public statements. While FTC guidelines on deceptive communication practices provide a good legal measure for IMC efforts, individual state requirements for truthful commercial communication should also be consulted. The intent should be to identify "high-risk" communication activities and messages that could invite lawsuits or make an organization more vulnerable to legal liability should a suit be filed.

Such review may be particularly important for public relations professionals involved in IMC. While their counterparts in advertising and marketing have a long history of operating under FTC rules and state "false advertising" statutes, public relations professionals have traditionally viewed their work as being beyond the reach of such regulations. Thus, they may have some catching up to do in terms of acquainting themselves with FTC rules and state laws. The intent, of course, is to avoid or diminish the costs of litigation by ensuring familiarity and compliance with commercial speech laws and regulations by all IMC professionals.

It is important to note that under FTC guidelines, the good intentions of a corporation and its representatives are irrelevant in determinations of whether a particular message is false, deceptive, or misleading. Deception is viewed as a material representation, omission, or practice that is likely to mislead a reasonable consumer (see FTC 1984, p. 165). Falsehoods may be express or implied, meaning that deceptive information may be technically false or may simply mislead listeners because it is incomplete or in some other way creates a false impression. It is important to note that under FTC guidelines, participants in the commercial marketplace must also be able to verify the truthfulness of their claims. When compared with the broad freedom to communicate in the political marketplace, such strict standards may be particularly constraining to public relations professionals who frequently must respond to media and other inquiries with little time for research or reflection.

Nonetheless, IMC practitioners would be wise to assume that all factual statements made in reference to products, services, operations, management, employees, and other aspects directly related to how their organizations conduct their businesses are commercial messages for regulatory purposes. In addition, companies should develop policies that spell out the types of information that may be addressed in publications and by company representatives in public forums, and should train company spokespersons to recognize the risks of communicating in a highly regulated legal environment.

Companies should also consider the potential "chilling" effect of indefinite commercial speech doctrine on corporate communication. Because they are not able to fully assess potential legal risks, corporate leaders and/or IMC professionals may opt to limit their company's public communication (see, e.g., Marcantonio 2003; Paladino 2004; Young 2003). For example, as a result of the Kasky decision, Nike decided to forgo external publication of its social responsibility report and limit its participation in public events and media forums in California (Nike 2003). Although such action may not be warranted in all situations, the legal risks involved in discussing issues of public interest that also relate to the company and its products, services, or operations should be weighed.

Finally, IMC professionals should consider the potential for even greater regulation of integrated marketing communication in the future. For example, some legal scholars have argued that because all corporate communication on all matters is inherently commercial, it should be regulated as such (see Abrams 1983, arguing that legislative petitioning by business enterprises should be classified as commercial speech, "neither in need of nor deserving of the full reach of First Amendment protection," p. 586). Whether integrated communication practices could hasten the adoption of such views on a broad scale should be addressed. While an argument can be made that raising the legal bar for truthful communication by corporations is a good thing, questions related to First Amendment freedoms are not so easily resolved. Although "there is no constitutional value in false statements of fact" (Gertz v. Robert Welch, Inc. 1974, p. 340), there is constitutional value in protecting the freedom of corporations to participate in the political and commercial marketplaces. The extent to which IMC practices may limit that freedom is worthy of reflection.

FUTURE RESEARCH

As IMC continues to expand throughout the United States and the world, the laws of the various states and nations should be examined in an effort to better understand legal considerations related to integrated communication practices. For example, an analysis of individual commercial speech laws in the 50 states would help companies evaluate and respond to legal risks specific to particular jurisdictions. A deeper understanding of potential legal challenges encountered abroad would be valuable for companies interested in developing or expanding IMC programs on a global scale.

Studies that examine practice issues related to IMC and the law are needed as well. For example, the views of corporate leaders and IMC professionals on legal issues associated with integrated marketing communication could be important in understanding the extent to which legal concerns might impede its future development. Research questions could include: What key legal concerns and challenges do IMC practitioners face? Are IMC professionals familiar with laws and regulations that affect their practices? How are companies addressing legal issues associated with integration? What role does legal counsel play in IMC efforts? How are IMC materials evaluated for legal purposes? What specific criteria are used to analyze the legal risks associated with IMC messages? Answers to such questions could lead to the development of "legal best practices" in IMC.

REFERENCES

Abrams, Natalie (1983), "The Sham Exception to the Noerr-Pennington Doctrine: A Commercial Speech Interpretation," Brooklyn Law Review, 49, 573-603.

Bigelow v. Virginia (1975), 421 U.S. 809.

Board of Trustees v. Fox (1989), 492 U.S. 469.

Bolger v. Youngs Drug Products Corporation (1983), 463 U.S. 60.

Caywood, Clarke L. (1997), "The Future of Integrated Communications and Public Relations," in The Handbook of Strategic Public Relations and Integrated Communications, Clarke L. Caywood, ed., New York: McGraw-Hill, 564-566.

Central Hudson Gas & Electric Co. v. Public Service Commission (1980), 447 U.S. 557.

Connick v. Myers (1983), 461 U.S. 138.

Cornelissen, Joep P. (2001), "Integrated Marketing Communications and the Language of Marketing Development," International Journal of Advertising, 20 (4), 483-498.

Cutler, Bob D., and Darrel D. Muehling (1989), "Advocacy Advertising and the Boundaries of Commercial Speech," Journal of Advertising, 18 (3), 40-50.

Cutlip, Scott M., Allen H. Center, and Glen M. Broom (1994), Effective Public Relations, Englewood Cliffs, NJ: Prentice-Hall.

Duncan, Tom, and Frank Mulhern, eds. (2004), A White Paper on the Status, Scope and Future of IMC (from IMC symposium sponsored by the IMC programs at Northwestern University and the University of Denver), New York: McGraw-Hill.

Edenfield v. Fane (1993), 507 U.S. 761.

Federal Trade Commission (FTC) (1984), Policy Statement on Deception, 103 F.T.C. 110.

First National Bank of Boston v. Bellotti (1978), 435 U.S. 765. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323.

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Marcantonio, Stephanie (2003), "What Is Commercial Speech? An Analysis in Light of Kasky v. Nike," Pace Law Review, 24, 357-392.

McIntyre, Vicki (2004), "Nike v. Kasky: Leaving Corporate America Speechless," William Mitchell Law Review, 30, 1531-1569.

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NAACP v. Claiborne Hardware Company (1982), 458 U.S. 886. Near v. Minnesota (1931), 283 U.S. 697.

New York Times v. Sullivan (1964), 376 U.S. 254.

Nike, Inc. (2003), press release, September 12.

Paladino, Alyssa L. (2004), "Just [Can't] Do It: The Supreme Court of California Overly Restricted Nike's First Amendment Rights in Holding That Its Public Statements Were Commercial Speech," University of Baltimore Law Review, 33, 283-304.

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Riley v. National Federation of the Blind (1988), 487 U.S. 781.

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--, and Philip J. Kitchen (2000), "A Response to 'Theoretical Concept or Management Fashion?'" Journal of Advertising Research, 40 (1), 17-21.

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Valentine v. Chrestensen (1942), 316 U.S. 52.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), 425 U.S. 748.

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Kathy R. Fitzpatrick (J.D., Southern Methodist University) is associate professor and director, M.A. program in public relations and advertising, Department of Communication, DePaul University.

TABLE 1

Key Findings in U.S. Supreme Court Commercial Speech Cases

1942    Purely commercial advertising warrants no constitutional
        protection (Valentine v. Chrestensen).
1975    Commercial speech deserves a degree of constitutional
        protection. Motives, means, and messages may make speech
        commercial (Bigelow v. Virginia).
1976    Speech that does no more than propose a commercial transaction
        is afforded limited constitutional protection to ensure
        truthful commercial information is unimpaired. Content is most
        important in determining commercial speech (Virginia State
        Board of Pharmacy v. Virginia Consumer Council).
1980    Commercial speech includes expression related solely to the
        economic interests of the speaker and the audience (Central
        Hudson Gas & Electric Co. v. Public Service Commision).
1983    Political statements made in the context of commercial
        transactions are not fully protected under the First
        Amendment. When all are present, economic intent, advertising
        format, and product/service references may make speech
        commercial (Bolger v. Youngs Drug Products Corportation).
1988    Commercial speech that is "inextricably intertwined" with
        political speech is afforded the full protection of the First
        Amendment. The nature of speech taken as a whole must be
        considered when determining constitutional protection (Riley
        v. National Federation of the Blind).
1993    Commercial speech is linked inextricably with the commercial
        arrangement it proposes (Edenfield v. Fane).