concurring.
I write a few words separately to explain my understanding of the opinion and why I am quite comfortable joining it in full. Like an earlier panel of our court, we state that the definition of “commercial advertising or promotion” in the Lanham Act is the same as the definition of “commercial speech” for purposes of First Amendment analysis. See Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 56-58 (2d Cir.2002); see also Gordon & Breach Sci. Publishers S.A. v. Am. Inst, of Physics, 859 F.Supp. 1521, 1535-36 (S.D.N.Y.1994). It goes without saying (and therefore probably deserves being said) that this definition simply means that Congress did not wish to extend federal Lanham Act liability to speech that is subject to broader general First Amendment protection than is commercial speech. Such noncommercial speech, however, may well remain the grounds of recovery under state laws. In other words, as the opinion notes, even noncommercial speech may, in appropriate cases, be actionable. See ante at 92 n. 7. Today’s holding means only that Congress chose not to make that kind of speech federally actionable under the Lanham Act. It is for these reasons that the opinion is able to remand the speech here discussed for consideration of whether it (a) violates section 349 of New York’s General Business Law or (b) may be the basis for recovery under the New York common law of unfair competition by disparagement.
I also note that the Supreme Court currently has before it a case which, though not arising under the Lanham Act, raises questions as to the definition of “commercial speech” for First Amendment purposes. Nike, Inc. v. Kasky, — U.S.-, 123 S.Ct. 817, 154 L.Ed.2d 767 (2003) (memorandum opinion granting certiorari). Because the instant case is being remanded, we have deemed it appropriate not to wait for that decision. But it should be *96clear that should the Supreme Court’s ruling in Nike cast doubt on our holding that the statements to ARTnews and to other publications constituted noncommercial speech, the district court is free to reconsider our decision in light of that Supreme Court holding.
With these caveats, I concur both in the result and in the opinion of the court.