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Wednesday, April 30,2003
-Oregon Daily Emerald
Commentary
Editor in Chief:
Michael J. Kleckner
Managing Editor
Jessica Richelderfer
Editorial Page Assistant
Salena De La Cruz
Freedom of commercial speech?
The U.S. Supreme Court heard arguments April 23 in
Nike Inc. v. Kasky, afree-speech case that could determine
what constitutes a business’ opinion versus its commer
cial speech.
The case turns on whether Nike, in defending itself in the
mid-1990s against accusations that it used sweatshop la
bor, was engaging in protected political speech in the con
text of a public debate or trying to protect its reputation and
sell its products.
Marc Kasky argued Nike’s defense was false and used to
promote its business. If true, this could violate a California
law againstfalse advertising and unfair competition.
Nike argued that it wasn’t selling products but simply
was adding to the First Amendment-protected “marketplace
of ideas. ”
Companies must
be free to join
public dialogue
The distinction between commercial
speech and speech that warrants the full pro
tection of the First Amendment is a purpose
ful one, the point of which is not to silence
companies from speaking about controversial
issues, but to prevent them from making false
claims about their products in order to ex
ploit consumers. The difference between the
two can be clear, or it can be so small as to be
virtually indiscernible. It just so happens that
the Nike suit concerns
the latter category,
which is why it’s such an
important case.
Nike’s attempts to vin
dicate its labor practices
abroad of course have an
element of advertising; it
would be absurd to argue
otherwise. Public percep
tion of how a company
conducts business is at
least weakly correlated
with its livelihood.
DJ Fuller
No holds barred
But Nike’s protestations also transcend
mere commercial speech, because they
double as arguments in the larger issue of
globalization — a debate that very much be
longs in the public domain, where the First
Amendment presides. A company should
not be effectively barred from weighing in
on an issue simply because it stands to prof
it from it; after all, personal benefit —
whether it be material gain or moral gratifi
cation — is the driving force behind any
opinion.
It is important to remember that this issue
pertains to all businesses, not just the reviled
Nike. If the California Supreme Court’s expan
sive definition of commercial speech is upheld,
farms and pet stores could be sued for defend
ing themselves against the claims of animal
rights activists; logging companies could be
sued for arguing that clear-cutting isn’t as bad
as environmentalists allege.
Unless we are categorically, mindlessly
anti-business, I think we can admit that
these are matters about which reasonable
people may disagree. Companies, just as the
rest of us, should have the liberty to be wrong
without being labeled liars and summarily
thrust into court. Hell, they may even be
right sometimes.
Contact the columnist
at djfuller@dailyemerald.com. His views do not
necessarily represent those of the Emerald.
Steve Baggs Emerald
Why is it so bad
to ask companies
to tell the truth?
Michael J.
Kleckner
The editor's office
Aw, shucks. I have to admit, I don’t really
understand all the flap over this Nike case.
From what I’ve been told, it seems sort of
straightforward. A fellow is saying Nike’s
speech was an “unfair trade practice” because
it wasn’t telling the truth.
I’ve got to say, I agree with him. Call me sim
ple, but if a company talks to the public about
how it does business, about its products —
about the things, in short, that help me decide
whether to buy those
snazzy shoes — it ought
to shoot straight.
In other commercial
speech, companies can’t
fib. You can’t lie in a TV
commercial, and by golly,
you shouldn’t be able to
lie ip a press ^jpas^ f^oujt
how your company
makes products.
And there’s the rub, to
many of the folks who dis
agree with me. This
speech by Nike, they say, isn’t commercial
speech. It’s free speech. Now I know the
Supreme Court has already said that spending
money is considered protected speech —
which is a heaping pile of cow dung, truth be
told — but I keep scratching my head about
this and can’t figure it out.
If Nike’s speech in this case isn’t commer
cial, then what is it? Companies don’t tell peo
ple about the grub they ate for dinner, or what
their favorite movie is. Now maybe if they were
telling me who to vote for, or whether we ought
to have the death penalty, I would have to re
think myself.
Some people say that if Nike doesn’t win this
case, well then, any crank could shut business
es down by lying about them. Uh-uh, no they
couldn’t. Nike could still sue ‘em for libel. And
other people say that Nike was just weighing in
on an important public conversation — global
labor. Uh-uh, no they weren’t. In this case,
Nike was talking about the way it does busi
ness. It was talking about its own factories and
its own products.
That’s commercial speech, dad gum it.
And people use that speech to decide
whether to buy from Nike or Adidas or
Reebok. Given that, Nike needs to tell the
truth, or pay the fiddler.
Contact the editor in chief
at editor@dailyemerald.com. His views do not
necessarily represent those of the Emerald.
Letter to the editor
Wealthy should
help fill budget deficit
I am outraged! The Legislature is about to
dismantle the Oregon Health Plan, reduce K
12 schools another #1 billion, and there will
be a #31.3 million cut from public safety.
Oregon has a large number of wealthy indi
viduals, and our tax structure has no longer
made them responsible for their fair share of
participating in a civilized society. Recent tax
measures have reduced their share of the tax
burden, and two events have brought their
wealth to my attention.
Our “Paris to Portland” art museum show
demonstrated great wealth when they dis
played art masterpieces from France owned
by Portland residents. It looked like a #100
million-plus show!
The second show of wealth are the two pro
posed sport arenas; the basketball stadium for
Eugene and the baseball arena for Portland.
This is in addition to Eugene’s football stadi
um, with the #30 million improvements, that
is used seven or eight days per year.
Another demonstration of wealth is reading
the home section of local newspapers with
their $300,000-plus homes. With this much
wealth, surely we can first of all pay for schools
and the basic needs of health care and public
safety. Is our economy just for a few?
If you are concerned about the future of
your children growing up with impover
ished schools, if you have friends and
neighbors who depend on assistance with
health care, or if you just care about your
community, call your state legislator at
(800) 332-2313.
Ruth Duemler
Eugene