Companies Like Nike
Have a Right to Self-Defense
If this editorial set out to argue that eating Campbell's Tomato Soup makes you live longer, no one could question it, at least not legally. If Campbell's, however, began running a series of advertisements claiming that tomato soup adds 10 years to your life, and it wasn't true, the firm might be subject to prosecution, because there is a different standard of protection afforded "commercial'' speech.
This makes perfect sense. We want a society where ideas--no matter how ridiculous--are aired in public forums, while at the same time false product claims are suppressed. No one wants to return to the era when snake oil ads claimed to cure anything. That said, there is a fascinating case before the Supreme Court, Nike vs. Kasky, that cuts to the core of what is considered commercial speech and what is not. During the second half of the 1990s, Nike became the focal point of anti-globalization wrath over the conditions of Third World factories making American products. Nike was accused of manufacturing its fashionable sneakers in wretched Asian sweatshops, and publicity was stirred up to try to force the company to improve conditions.
Nike fired back in a variety of ways--through guest editorials, letters to colleges and Web postings. The company was sued by Marc Kasky, a California runner, who argued that the communications from Nike defending itself, even though they weren't in the form of TV commercials or print ads, were nevertheless "commercial'' speech designed to enhance the brand, and therefore could be found in violation of the law if they were merely misleading. Nike argued that this was protected political speech.
Corporations such as Nike of course have enormous power to communicate their messages, and we generally favor safeguards that prevent the spread of obvious falsehoods. That said, we are concerned that, should Kasky prevail, the rich debate of voices, which are joined, yes, by corporate puffery, will be reduced. To return to the soup example, we cannot envision a legal environment where an essay by the CEO of Campbell's extolling the joys of soup could be against the law because he fails to mention it has a lot of salt and can cause nasty stains. Nike has a right to be selective in its message, to put the best gloss it can on the conditions of its workers, just as it has the right to run ads that lead people to believe they could Be Like Mike if they buy a certain shoe.
Corporations are legally like people and, like people, they have opinions that cast themselves in a positive light. The law should not force McDonald's to extol vegetarianism, or Campbell's to praise homemade soup or Nike to flagellate itself. The Supreme Court would indeed set a dangerous precedent if it kept companies from defending themselves under the pretext of banning misleading advertisement.
Government is always trying to edge its way out of the harsh light of public scrutiny. The latest lamentable attempt to crawl back into the dark is Illinois House Bill 2835, which would eliminate the requirement that school districts publish in a local newspaper an annual "statement of affairs,'' a comprehensive accounting from enrollment figures and attendance to employee salaries and major expenditures. Instead, the bill would allow the information to be posted on the Internet or given out to anyone who requests it.
This is a bad idea. A recent study showed that 42 percent of Americans do not have access to the Internet, and won't for some time to come. And government agencies can be famously slow in disgorging information. We won't deny that there are newspapers owned by our parent company that would be affected by a curtailment of board advertisements. But such legal notices are a tiny fraction of our business; much more galling is the image of local officials trying to hide their activities. The onus now is on government to disseminate information; this bill would require citizens to go searching for the information.
A Web site is not comparable to a newspaper--first there is not the same access, nor is there the same permanence. Data can be added--or subtracted--from a Web site at will. And we never saw an angry citizen wave a Web site over his head at a school board meeting. The Illinois Senate Education Committee has a hearing on the measure Tuesday. We say that it falls under the category of false savings and deserves to be soundly rejected.
© 2003 Chicago Sun-Times
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