Kasky v. Nike — Do Corporations Have a Right to Lie?

Contents

  1. Introduction
  2. Kasky v. Nike Inc : Facts, Reporting & Competing Perspectives
  3. Arguments Against Nike or Against Corporations Enjoying Bill of Rights Protections
  4. Arguments for Nike or for Corporations to Enjoy Bill of Rights Protections
  5. Legal Briefs on Marc Kasky’s Side
  6. Legal Briefs on Nike, Inc.’s Side
  7. Kasky v Nike Court Decisions and Court Documents
  8. Some Major Court Cases Involving “Commercial Speech”
  9. The ACLU and Corporate “Rights”
  10. 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).

Related stories:

No further posting of information relating to Nike v Kasky is planned on this archive.

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Facts, Reporting and Items Offering Competing Views

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Arguments Against Nike’s Claimed “Right to Lie”

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

Commentaries Not Explicitly Advocating for Either Party

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Legal Briefs for Marc Kasky

Note: all briefs linked on this page are PDFs.

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Legal Briefs for Nike

Nike Inc.’s Briefs to the U.S. Supreme Court
Amici Briefs

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Kasky vs. Nike Inc: Court Decisions and Documents

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A Few Significant Court Cases in the Evolution of “Commercial Speech”

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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, like: The ACLU & the Tobacco Companies from Nieman Reports ( 366k pdf file)

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.

See our Corporate Personhood Page for much more related material