Kasky v. Nike

Introduction
Kasky v. Nike Inc : Facts, Reporting & Competing Perspectives
Arguments Against Nike or Against Corporations Enjoying Bill of Rights Protections
Arguments for Nike or for Corporations to Enjoy Bill of Rights Protections
Legal Briefs on Marc Kasky's Side
Legal Briefs on Nike, Inc.'s Side
Kasky v Nike Court Decisions and Court Documents
The Case Settlement
Some Major Court Cases Involving "Commercial Speech"
The ACLU and Corporate "Rights"
Background on the Underlying "Sweatshop" Dispute

Introduction

Kasky v. Nike (Nike v. Kasky at the U.S. Supreme Court) involved the Nike Corporation's appeal of an April 2002 California Supreme Court ruling. The California court rejected claims by Nike's lawyers that the First Amendment immunized the company from being sued for an allegedly deceptive public relations campaign. A trial on the merits was precluded by the parties' settlement following the U.S. Supreme Court's decision to send the case back to a lower court.

This page presents all sides of the Nike case and the larger issues of corporate or commercial speech. We created this page to examine the judicial creation of constitutional rights for corporations and to raise awareness of the far-reaching negative effects that precedent has for democracy and our lives.

We reject the claim that the authors of our Bill of Rights intended to define persons as including corporations (see Corporate Personhood page for more on this). In addition to provoking public debate, we are working to persuade the American Civil Liberties Union to halt or reverse its practice of advocating for corporate personhood (the ACLU board backed Nike in court, though they offer no evidence of member support). We believe such advocacy ultimately undermines the critical human rights work for which the ACLU was founded (more below). We soon will launch a more broad-based resource on corporate "free speech" and current issues and court cases within that realm.

Related stories:
The latest corporate legal claim to "free speech" rights: The Do-Not-Call Registry Dispute. We also have produced a detailed legal background and timeline on the case.

A trial in the case of Monsanto Inc. v. Oakhurst Dairy was averted when the parties settled out of court. No further posting of information relating to Nike v Kasky is planned on thius page, but most material will be permanently archived.

Facts, Reporting and Items Offering Competing Views

Just the Facts
Background on the events that led to the lawsuit (as stated by California appeals court)

The California Statutes in Question (now under attack by Nike and a corporate consortium that aims to drastically alter the law via a 2004 ballot initiative)
Section 17200-10, Section 17500-09

ReclaimDemocracy.org debates Washington Legal Foundation on CNBC (audio only--taped at time of Supreme Court oral arguments)

Statement by the Northern California ACLU
(with our responses to points raised within). This is a good introduction to opposing arguments on treating corporations as persons. Our FAQ's also presents direct point/counterpoint on the case.

A report on the California Supreme Court decision by the L.A. Times

Washington Post report on U.S. Supreme Court granting Nike's appeal

A detailed New York Times report preceding oral argument at the U.S. Supreme Court.

On June 26, 2003, the Supreme Court dismissed Nike's challenge of California law that allows citizens to sue for deceptive advertising. News coverage of the Court's Decision

The New York Times chose the Kasky v. Nike dispute for its "Daily Lesson Plan," (4/21/03) of critical thinking exercises, relying heavily on our resources.

Arguments Against Nike's Claimed "Right to Lie"

Op-ed by ReclaimDemocracy.org director Jeff Milchen and Jeffrey Kaplan (one of several we published during the case's development)

FAQ's / Our Responses to Arguments Raised by Nike Inc, and Corporate Speech Advocates

First Amendment Follies: Expanding Corporate Speech Rights by Robert Weismann

Our sign-on letter to the ACLU, urging its directors to stop advocating corporate personhood. This letter offers detailed argument and links to our endorsement form to urge the ACLU to change its position.

Free Speech, Inc by Lisa Danetz (lead counsel on our amicus brief to Supreme Court)

National Lawyers Guild Speaks Against Corporate Personhood

Nike v. Kasky & the Future of Corporate Social Reporting

Arguments for Nike or for Corporations to enjoy Bill of Rights Protections

Corporate Lying Is Bad, But Allowing It Is Good

Many of the nation's largest newspapers, including four of the five largest, editorialized in favor of Nike. No major paper supported Kasky. You can find links to most of them on this page: Nike v. Kasky Editorial Coverage and the Blackout of Dissent

Within days of Ohio Representative Dennis Kucinich circulating a "dear colleague" letter, urging them to sign on to the Congressional brief in support of Kasky, all five Oregon representatives--Nike's headquarters--circulated a letter arguing for Nike and asking colleagues not to sign on.

Commentaries Not Explicitly Advocating for Either Party

Amicus Brief Has Flaw (O'Dwyer's)

PR Industry Should Stand for Truth by Jeff Seideman (PR Week)

A critical response to media corporations' advocacy by Cynthia Cotts (Village Voice)

On the Wings of Nike: A streamlined approach to the commercial speech doctrine by Anne Cunningham and Craig Greeman. Published by Communications and the Law (35 pp analysis-pdf)

Legal Briefs for Marc Kasky

Note: almost all briefs linked on this page are pdf documents. Many are large and may take a few minutes to download on a dial-up connection.

Respondent's (Kasky) Brief in Opposition filed with U.S. Supreme Court (prior to Court granting certiorari)

Marc Kasky's Original Complaint

ReclaimDemocracy.org amicus brief to U.S. Supreme Court (submitted by the National Voting Rights Institute).

Amicus Brief from California AFL/CIO to California Court of Appeals

California Attorney General's brief to state supreme court

See our press release "Public interest groups submit amicus briefs on behalf of Marc Kasky" for links to more.

Legal Briefs for Nike

Nike Inc.'s Briefs to the U.S. Supreme Court

Nike Inc. Final Brief (62 pp,)

Nike Inc. Petition for Certiorari (asking Court to review CA court decision) (128pp)

Nike Inc. Reply to Marc Kasky's Brief to the Court (prior to Court's granting certiorari) (15 pp)

Amici Briefs

The ACLU

The Bush Administration, dba "the United States of America "

The Business Roundtable
Read a critical assessment of the Business Roundtable

U.S. Chamber of Commerce
Read a critical assessment of the Chamber of Commerce

Exxon/Mobil, Monsanto, Microsoft, Pfizer, and Bank of America

Media Corporations & Associations

The World's Largest Public Relations Corporations

Others: Center for the Advancement of Capitalism, Advertising Associations (also filed this lodging--beware: 3800kb file!) Civil Justice Association, Center for Individual Freedom, Pacific Legal Foundation, Product Liability Advisory Council . See the Court docket for a complete listing.

Amicus brief to the U.S. Supreme Court by the AFL/CIO for neither party, but arguing to overturn the California decision

Kasky vs. Nike Inc: Court Decisions and Documents

The US Supreme Court decision, with dissent and concurrence

U.S. Supreme Court oral argument transcript

The California Supreme Court decision in favor of Kasky (72pp)

The Overruled CA Appellate Court Decision in favor of Nike

The California statutes under which Nike was sued are printed in the last six pages of Respondent's (Kasky) Brief in Opposition to U.S. Supreme Court

The Case Settlement

ReclaimDemocracy.org perspective on the Kasky v. Nike Lawsuit Settlement

Our press release on the settlement

News coverage of the settlement

A Few Significant Court Cases in the Evolution of "Commercial Speech"

First National Bank of Boston v. Bellotti (1978) cleared the way for massive increases in corporate corruption of politics. Spending money to influence politics is now a corporate "right." Justice Rehnquist's dissent here is a recommended read.

Central Hudson Gas v. Public Service Comm. of NY * (1980) This oft-cited case concerns a state ban on ads promoting electricity consumption

FEC v. Massachusetts Citizens for Life, Inc. (1986)

Austin v. Michigan Chamber of Commerce (1990) Upheld limits on corporate spending in elections

International Dairy v. Amnestoy (1996) Vermont law requiring labeling of dairy products using BGH is overturned

44 Liquormart v. Rhode Island (1996) State ban on advertising of alcohol prices is struck down

Thompson v. Western States Medical Center (2002) overturned federal restrictions limiting advertising of drugs

Newspaper Editorial Coverage

Four of the five largest U.S. newspapers editorialized in support of Nike Inc., while completely shutting out dissenting opinions from their editorial pages (despite having received multiple submissions from nationally-published writers, including our staff). We have fully documented this record and linked to all editorials known to us that have been published to date in top-50 U.S. newspapers. See Nike v. Kasky Editorial Coverage and the Blackout of Dissent

The ACLU's Support for Corporate Claims to Bill of Rights Protections and Our Campaign to Change It

The ACLU sided with Nike Inc. throughout this case. Its national board cites the position of the No. California ACLU as representing their rationale. That statement is followed by a copy with our responses interwoven: Statement by the Northern California ACLU on Kasky v. Nike.

The ACLU has a controversial history of defending "smokers rights" and "free speech" for tobacco corporations with earmarked funds from those same companies. We consider this to be important information for understanding the background of ACLU policy in this realm. We have no knowledge of the ACLU taking money from Nike Inc.

Former Washington Post reporter Morton Mintz published several in-depth investigations on the issue.

The ACLU & the Tobacco Companies by Morton Mintz from Nieman Reports ( 366k pdf file)

The ACLU's response and Mr. Mintz's counter-response

Help convince the ACLU that the Bill of Rights is exclusively for human beings. Please read and endorse our sign-on letter, then consider writing them directly to have a far greater impact: ACLU
125 Broad St., 18th Floor
New York, NY 10004

Sending hard copy to ACLU is best, but please e-mail us a copy of your letters to any ACLU representative (and send copies of any substantive responses). We also urge you to speak with your state ACLU chapter (see ACLU.org for a listing) and share your communications with us.

On November 20, 2002, the ACLU of Southern California passed a policy on commercial speech that directly contradicts the ACLU of Northern California's defense of Nike's alleged right to lie. While this is not a strongly worded policy and it sticks narrowly to the commercial vs. non-commercial speech framing, it is a great first step in provoking needed debate within the ACLU.

Background on the "Sweatshop" Dispute

While we addressed the Constitutional issues in this case and not Nike's practices, we offer these links for those seeking background on the underlying issue.

Essay from Mother Jones Magazine

Nike Inc's website has dozens of pages telling its side of the story

Nike CEO Retracts Donation to U. of Oregon in Retaliation

Academics Studying Nike collects many links relating to the Nike sweatshop dispute

See our Corporate Personhood Page for much more related material