Nike Speech Case Goes to High Court
Justices to Rule on Artistic Vs. 'Commercial' Expression

The Supreme Court announced yesterday that it will hear an appeal by athletic apparel maker Nike Inc. of a California court decision that Nike says forces corporate America to disarm in its war of words with anti-globalization activists.

At issue is a May ruling by the California Supreme Court upholding the right of corporate critic Marc Kasky to sue Nike for false advertising, asserting that the company misled the public when it denied that its subcontractors mistreated workers in Southeast Asian shoe factories.

The court ruled 4 to 3 that Nike's statements were "commercial speech" intended to help it sell merchandise and therefore not entitled to the same First Amendment protection that other forms of expression enjoy.

Almost from the day it was issued, however, the ruling -- which has national impact because so many companies seek to do business in California -- has been under attack not only from Nike, but also from several corporations, public relations executives and media companies.

Nike and its supporters say the ruling could apply to almost any public statement a company might issue regarding its corporate practices, including a remark to the media, thus deterring corporations from communicating even on matters of genuine public interest.

"No company should feel impeded from engaging in the marketplace of ideas just because they operate in the marketplace of goods," Nike attorney Walter Dellinger said in a prepared statement yesterday.

A brief signed by 32 media firms and professional organizations told the court, "The California Supreme Court's decision poses a serious and immediate threat to the media's ability to report on important issues regarding corporate America." The Washington Post Co. was among the signatories.

The Web site of Reclaim Democracy, a Colorado-based anti-corporate group, said that the California ruling merely recognized that there is no constitutional "corporate right to lie."

Note from ReclaimDemocracy.org: the "anti-corporate" label is routinely applied to any group that questions the status quo of ever-increasing corporate power. Unless we already have spoken to a reporter, we presume that such labels are the result of short deadlines and the reporter lacking the frame of reference and time to understand our work, not a deliberate desire to marginalize us (and we're glad outlets like Washington Post, NY Times and major netwoks view our site as so authoritative on this case to command mention).

Of course, anyone familiar with our work will recognize how silly the anti-corporate label is to describe us. We've done extensive, nationally-recognized work (written up in Inc. Magazine, Utne Reader, and Orion Afield, among others) to promote the success of independent businesses, resulting last year in our spinning off the American Independent Business Alliance as a separate non-profit organization.

If the writer intends to mean anti-corporate domination or anti-corporate personhood, that would be accurate. We believe that corporations have an appropriate role in society and that role is doing business--period. Democracy depends on our limiting corporate power and activities to preclude corporate corruption of our government and civic institutions. See About Us for more.

"The lawsuit specifically describes numerous factual misrepresentations Nike made to the public about the labor practices in the factories that manufacture its shoes," Kasky's attorney, Alan Caplan, said in a statement. "These misrepresentations were not part of any political debate, but were made by Nike to encourage customers to buy a pair of its shoes."

Kasky's brief also noted that the California Supreme Court merely permitted the case to go to trial, where Nike would have a chance to defend its claims.

The case sets the stage for one of the court's most important rulings on commercial speech in recent years. In past rulings, the court has tried to distinguish between company claims aimed at potential buyers, which may be tightly regulated or in some cases banned, and political or artistic expression, which is entitled to constitutional protection.

But as the boundaries separating advertising, art and politics have blurred, scholars and judges, including members of the court, have come to question that dichotomy.

Supreme Court Justice Clarence Thomas wrote in a 1996 case that he does "not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech."

And a dissenting justice on the California Supreme Court, Janice Brown, wrote in the Nike case, "I believe the high court must reassess the commercial speech doctrine and develop a more nuanced inquiry that accounts for the realities of today's commercial world."

The case is Nike v. Kasky, No. 02-575. Oral arguments are scheduled for April, and a decision is due by the end of June. [The article went on to address other pending cases.]

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