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Nike
continued from page 1
free-speech case that has the busi
ness world buzzing and could set a
new standard for what sort of pro
tection businesses have under the
First Amendment.
Nike wants to be protected under
the First Amendment from being
held accountable for statements
that may have been false. The Cali
fornia Supreme Court ruled that the
shoe company can be sued under
the state’s false advertising law for
statements it made in defense of
working conditions in its overseas
factories. Nike argues that it should
be immune from such litigation be
cause the comments it made con
tributed to the public debate on
globalization and should be protect
ed as political speech.
The divided California court re
jected this reasoning in a 4-3 deci
sion. The court ruled consumer ac
tivist Marc Kasky could proceed
with his lawsuit against the Beaver
ton-based company because Nike’s
public relations campaign was
viewed as “commercial speech,”
which can be regulated by the Fed
eral Trade Commission for accura
cy. In its decision, the California
court employed a broad interpreta
tion of “commercial speech” to in
clude all statements companies
make to convince consumers to buy
their products.
The argument about Nike’s free
speech rights is a constitutional co
nundrum. The question before the
court now is, what does “commer
cial speech” mean? Does it simply
involve information provided in
transactions between buyers and
sellers, as Nike argues? Or does
commercial speech encompass all
the statements companies make to
try to influence customers’ purchas
ing decisions, such as public rela
tions campaigns painting a rosy pic
ture of a company’s working
conditions in overseas factories?
A whole host of outside entities
and organizations have joined the
debate on this issue, some giving
their support to Nike and others
urging the court to decide in favor
of Kasky. Media organizations and
advocates of free speech such as
the Society of Professional Journal
ists and the American Civil Liber
ties Union have filed amicus briefs
with the court, urging it not to
squelch Nike’s right to speech. But
consumer protection agencies and
anti-globalization activists, such as
the corporate watchdog group Re
claim Democracy, argue that the
California court ruling should
stand because it prevents a consti
tutional “corporate right to lie” in
public statements.
Tim Gleason, dean of the Univer
sity’s journalism school, has publicly
sided with Nike and the company’s
Read more
on die Web
Check out our online poll
and weigh in with your
opinion about whether Hike’s
defense of its labor practices
qualifies as protected political
speech or if it should be more
strictly regulated as
commercial speech,
www.daiSyeitierald.cofn
right to defend its business policies
and practices in the arena of public
debate. Gleason published a com
mentary in The Oregonian on April
21, arguing that the California
court’s decision should be over
turned or else corporations wary of
litigation will likely withdraw alto
gether their information from the
marketplace of ideas.
“The test for commercial speech
that the California court used is far
too broad and should be narrowed
dramatically,” Gleason said.
Consumer advocates argue that
the opposition’s claims of a “chilling
effect” on the speech of commercial
entities are vastly over-exaggerated,
and Klasky should be allowed to pro
ceed with his lawsuit. Eugene attor
ney David Force said local media
have portrayed the California
court’s decision as a “gag” on Nike,
which he argues is ludicrous.
Force said Nike is a international
corporate giant capable of buying
full-page ads in the country’s top
newspapers, and being forced to pay
penalties under California false ad
vertising laws for making untrue
statements to the public does not
equate to “gagging.”
He added that contrary to the
claims of Nike supporters, a deci
sion in favor of Kasky will not limit
national discussion on issues of
globalization.
“The idea that this will squelch all
public debate on sweatshops is
nuts,” Force said.
Rather than redefining the free
speech rights of corporations, the U.S.
Supreme Court could choose to side
step the issue of commercial speech
and dismiss the Nike case on a nar
rower, more technical basis. Since
Kasky is a private citizen suing on be
half of the citizens of California and
was not actually harmed by Nike’s
public relations campaign, the court
could rule he has no standing to bring
a lawsuit against Nike.
The court should issue a ruling in
June, and advocates on either side
of the issue say they are hoping jus
tices will paint a clearer picture of
how much constitutional protection
is afforded to businesses and where
the line is between commercial
speech and political debate.
Contact the senior news reporter
atjenniferbear@dailyemerald.com.