When Nike Speaks

Last May, California's highest court held that the sportswear company Nike is subject to lawsuits, and potential liability, for its misstatements in the course of public debate about its third-world labor practices. The lamentable 4-to-3 decision, however, accomplished this by extending the state's consumer protection law that forbids misleading product claims. By refusing to grant the company the same broad First Amendment protection enjoyed by its critics, the ruling poses an immediate threat to robust debate and reporting about globalization, and other important public issues. This makes it imperative for the Supreme Court to accept the case now for review.

The legal terrain here is the increasingly fuzzy border between political speech and product advertising, to which Supreme Court precedents grant a lesser measure of protection. The Nike case has landed in the high court's in-basket at a moment of significant ferment about government's role in regulating commercial speech. On one extreme, anti-regulation zealots would demolish the nation's health and safety laws that require detailed disclosure of ingredients and nutrition values on food packages, say, and limit the claims a company may make on a product label or in advertising. The opposite extreme is represented by the California majority, which applied consumer protection laws to stifle corporate speech in a vital political debate.

As the three dissenters in the California decision warned, the potential for liability is already having a chilling impact well beyond Nike. Corporations are more hesitant to speak out on an array of public issues, lest they be sued for potentially deceptive or inaccurate statements -- a point underscored in a brief submitted by this newspaper and other newspapers, magazines, broadcasters and media-related professionals.

The Nike appeal challenges the Supreme Court to lay down some common-sense rules that further consumer protection without significantly intruding on the ability of corporations to engage in public discourse. How to define commercial speech when companies use means beyond advertising to promote their interests is one the justices are going to have to revisit sooner or later. Better sooner.

Note: The Times has refused to publish any dissenting opinion on this issue, despite top-notch submissions from nationally published writers (to be posted upon publication) and having published two pro-corporate speech commentaries (the other was by columnist Bob Herbert--a critic of Nike's labor practices) on their editorial page.

Go to Kasky v. Nike index page