Let Nike Speak

The Supreme Court heard oral arguments yesterday in an important free speech case testing whether corporations, as well as individuals, have the right to respond aggressively when their behavior is attacked. The case involves Nike Inc.'s rebuttal of criticism it received in the 1990s over labor conditions at factories in Asia, where its contractors manufacture its sneakers. Nike officials launched a public relations campaign that included letters to newspaper editors, press releases, ads in newspapers and communications with universities in defense of the company. This may seem to be pure speech of the sort the First Amendment was meant to protect. But the California Supreme Court regarded it less generously. Under California law, anyone can sue a company engaged in false advertising or unfair business practices. And when a man named Marc Kasky went to court arguing that Nike's claims were false and deceptive efforts to sell its product, the California court agreed that these laws could cover the company's campaign.

The Post, along with other newspapers, has filed a friend-of-the-court brief in the U.S. Supreme Court on Nike's behalf -- and with good reason. Any energetic debate is going to yield some distortion and factual error, and the law of free speech generally assumes as much. Indeed, Nike's critics could not be held liable for non-malicious errors they might make. Yet under the California court ruling, Nike would be held to an entirely different standard because it is a corporate actor that sells a product. But not all speech by companies is what courts call "commercial speech" -- that is, advertising or sales pitches -- which generally receives less constitutional protection than political speech. Nike's campaign was not about whether its shoes would help you run faster or jump higher; the purpose was to convince people that the company was not an immoral monster of globalization. True, Nike was undoubtedly trying to improve the political climate in which to sell shoes. But to treat any corporate argumentation as commercial speech is to handcuff companies in public discussions generally.

The line between pure speech and commercial speech may be difficult to draw in some instances. A company that wants to couch its ads as press releases can probably manage it -- just as political candidates can use sham "issue ads" to promote their campaigns. But this case is not within a difficult gray area. The way to deal with corporate spin or even overt corporate lies is not to haul companies into court but to encourage aggressive scrutiny of corporate claims by journalists, public interest activists and other citizens. That is just what was happening in the Nike debate. It would be ironic if that debate produced a precedent under which future give-and-take over corporate conduct could no longer take place.

© 2003 The Washington Post Company