The ACLU on Commercial Speech and Kasky v. Nike

(and our responses to ACLU claims)

Editor’s Note: While this statement was written by the ACLU’s Northern CA chapter, the national headquarters directed people to it as representing the national ACLU’s position on Kasky v. Nike. The ACLU statement is followed by our rebuttals to specific points.

While we are grateful for the ACLU’s work in defense of civil liberties, we urge its directors to reconsider what we consider counter-productive advocacy to advance “corporate free speech” and the concept that spending money to influence elections is free speech (more on that topic).

The ACLU is often asked why we file a brief in support of a controversial speaker. That is the case with our brief in Kasky v. Nike, Inc., which was recently decided by the California Supreme Court. Our main concern in cases like Nike is to ensure that important First Amendment protections are not eroded because the speaker or the speech in question is unpopular or controversial. Thus our brief was not about the merits of the controversy surrounding the conditions under which Nike’s products are manufactured nor did it take a position on whether or not Nike’s statements in defense of its business practices were accurate. Rather, the purpose of our brief was to assure that the question of the truthfulness of Nike’s assertions was judged by the same set of rules that would apply were someone to question the truthfulness of the assertions of its critics.

The actual question before the Court in Nike was whether a specific set of statements that Nike made in a specific set of documents should be considered commercial speech (i.e., advertising) that is entitled to a lower degree of First Amendment protection than the protection accorded to the statements of its critics made in comparable documents. We filed a friend of the court brief arguing that, on the particular facts of the case, Nike was entitled to the full protection of the First Amendment in responding to the criticism leveled at it by others. Although the California Supreme Court ultimately held that Nike’s statements should be considered commercial speech, we believe that the Court’s decision is inconsistent with fundamental First Amendment principles that protect the rights of those on both sides of a debate to speak their minds freely on issues with ramifications that go beyond the simple question of whether or not to buy a particular product.

The statements in question in this case were made in a letter to the editor of the New York Times in response to one of a series of columns about Nike written by Bob Herbert; a letter to the CEO of the YWCA; a letter to a human rights organization; letters to the presidents and athletic directors of colleges and universities; and a group of lengthy, detailed press releases. These letters and press releases were a direct response to a series of newspaper articles, television programs, and newspaper columns, all of which were highly critical of the conditions under which Nike’s products are manufactured abroad. Nike’s statements were not what one ordinarily thinks of as advertising. Letters to an organization that are part of an ongoing written discussion and letters to the editor are qualitatively different from a label on a pair of shoes. Similarly, press releases are not comparable to ordinary advertisements. Unlike an advertisement, press releases are not printed verbatim. The most one can usually hope for in sending out a press release is that the media, after evaluating the press release, will present your side of the story at the same time that they report your opponents arguments. By writing letters, including the letter to the editor of the New York Times, and by issuing press releases, Nike was responding in the same places in which it had been the subject of criticism and in which the debate about its practices was going on. The intended audience was the general public that had read the newspaper articles and columns and seen the television shows that had criticized Nike—whether or not these members of the general public were also potential buyers of Nike’s products.

The ACLU took the position that, in this context, Nike’s statements could not be considered commercial speech. Nike was taking part in a public debate in the public forum within which the debate was occurring. To provide full First Amendment protection to the speech of its critics while providing reduced First Amendment protection to Nike’s speech is inconsistent with First Amendment values that seek to maximize the opportunity for both sides of the debate to be heard so that the public, not the government, can decide who is right and who is wrong.

If we accept the logic that speech that furthers the economic interests of a company is always commercial speech aimed at consumers, because the “general public” is by definition made up of “consumers,” then businesses will never be able to speak freely, because anything they say on any subject affecting their business interests will, inevitably, affect whether some consumers will want to do business with them. This is as true for companies that speak out in defense of business practices and policies that we applaud, such as the need for a diverse workforce, as it is for Nike. It was for this reason that the ACLU argued that there is an important difference between speech that is directed primarily to consumers, and speech that is directed at a broader audience that occurs in the context of a public debate on broader issues of public concern.

Interestingly enough, Bob Herbert, the New York Times columnist whose columns Nike was responding to when it sent its letter to the editor, takes the same position on this question as does the ACLU. He wrote a column on May 13, 2002, arguing that Nike’s statements should not have been treated as commercial speech.

It has always been a cornerstone of the First Amendment that, when presented with both sides of an argument, the people can, by and large, be relied on to separate the wheat from chaff in evaluating conflicting claims on issues of public importance. While it may not always be a perfect system, it is far better than one in which the government becomes the arbiter of truth, thereby silencing one side of the debate. Where, as here, both sides of the debate are, indeed, being heard, the outcome of the debate should be judged in the court of public opinion, not in a court of law.

 

Our response to points raised by the ACLU

“The ACLU is often asked why we file a brief in support of a controversial speaker…Our main concern in cases like Nike is to ensure that important First Amendment protections are not eroded because the speaker or the speech in question is unpopular or controversial.”

The opening sentence simply diverts attention to a non-issue. 1. No party in this case argues against controversial views being expressed. 2. Being non-controversial is not a requirement for enjoying the protections of the First Amendment–being human, however is indeed a valid condition. There is no Constitutional or common sense basis for bestowing Bill of Rights protections upon corporations.

“The actual question before the Court in Nike was whether a specific set of statements that Nike made in a specific set of documents should be considered commercial speech (i.e., advertising) that is entitled to a lower degree of First Amendment protection…”

This statement frames the issue as merely a matter of whether or not the speech is “commercial” or not and focuses only on the content of the communication and the medium through which it is delivered, without regard to the source of the message. The corporate, non-human source of the PR campaign is the critical matter. Also, the statement equates commercial speech with advertising, but communications need not be ads referring to specific products to attempt to influence the actions of potential customers (and therefore be commercial speech), as Nike’s PR campaign obviously was intended to do.

“…we believe that the (California Supreme) Court’s decision is inconsistent with fundamental First Amendment principles that protect the rights of those on both sides of a debate to speak their minds freely…”

Exactly whose mind is the ACLU referring to here? A corporation is a legal construct, not a living and thinking being. Nike executives would, of course, be free to say what they like as individuals with full Constitutional protection. Different standards can and must apply when they are carrying out the business of the company, acting as a tool for exercising the power of a multi-billion dollar corporation.

“To provide full First Amendment protection to the speech of its critics while providing reduced First Amendment protection to Nike’s speech is inconsistent with First Amendment values that seek to maximize the opportunity for both sides of the debate to be heard so that the public, not the government, can decide who is right and who is wrong.”

Again the writer presumes that corporations enjoy equal standing with human beings and that the corporation constitutes the “public” whose rights must be protected from the government. In so doing, the ACLU not only ignores the fact that corporations are not people, it also ignores the fact that corporations are artificial creations that owe their very existence to the government.

Given that they are created by government, it is perfectly reasonable that corporations should be under the control of the political process rather than be empowered to influence or control it. In fact, given the many special powers and privileges that the government grants corporations (e.g. limited liability, perpetual lifespan, etc.), it is imperative that they be subject to such control lest they threaten to overpower the democratic process itself.

As justices White, Brennan and Marshall pointed out in their dissent in First National Bank of Boston v. Bellotti (1978), “the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process.” They recognized that restricting corporate communication was necessary because “The State need not permit its own creation to consume it.”

“Nike’s statements were not what one ordinarily thinks of as advertising.”

Again, this diverts from the question at hand and misrepresents the question as one of whether or not the communications were advertisements. No one made claims to the contrary about some items in question, such as letters to university presidents (although they are among Nike’s biggest customers). Items in Mr. Kasky’s complaint, however, included full-page paid advertisements in the New York Times among the communications alleged to misinform–a fact that Nike and the ACLU conceal from the public.

“The ACLU took the position that, in this context, Nike’s statements could not be considered commercial speech.”

A publicly traded corporation such as Nike is legally mandated to maximize shareholder return. They do it by selling goods. To argue that Nike Inc. expended resources to influence public opinion for an ultimate purpose other than furthering profit is more than merely silly–it effectively accuses the company of illegal behavior. This point is key to understanding corporations. Does the fact that Nike’s communications attempted to sell the corporation’s image and all its products, rather than a specific product, make it any less commercial? If so, a great many of Nike’s ads are “non-commercial,” since so many sell an image rather than the product directly.

“…maximize the opportunity for both sides of the debate to be heard so that the public, not the government, can decide who is right and who is wrong…”

California has a law against consumer fraud precisely because it is impractical, if not impossible, for individual citizens to research Nike’s claims. It is up to the California courts to decide whether the plaintiff’s charges are valid. This dispute is now a legal matter, not a popularity contest.

“If we accept the logic that speech that furthers the economic interests of a company is always commercial speech aimed at consumers, because the “general public” is by definition made up of “consumers,” then businesses will never be able to speak freely…”

The question to be decided in Kasky v. Nike is whether Nike Inc. has a right to lie, while violating state laws and then claim immunity from prosecution as a corporate “person.” An accurate rewording of the ACLU’s statement would be “then businesses will never be able to lie freely and with impunity from democratically enacted laws.”

“Bob Herbert, the New York Times columnist whose columns Nike was responding to when it sent its letter to the editor, takes the same position (as ACLU).”

Mr Herbert is entitled to his opinion, but we’re not persuaded by celebrity endorsements unless they have a compelling argument. You can read Mr. Herbert’s on our site and evaluate his case for yourself. We also wish Mr. Herbert walked his talk of supporting free speech. After his employer published both his pro-Nike piece and its own concurring editorial, while barring any dissenting opinions from its editorial page, Herbert refused requests to encourage his bosses on the opinion page to allow readers to hear the other side of the story.

“…when presented with both sides of an argument, the people can, by and large, be relied on to separate the wheat from chaff in evaluating conflicting claims…”

Could the ACLU board really believe that individual citizens or non-profit organizations are on a level playing field with transnational corporations when it comes to influencing public opinion? We doubt that their members would agree. How many people died because tobacco corporations used their overwhelming monetary power to create doubt about the fatal effects of smoking for decades afer all scientific doubt was gone?

While it may not always be a perfect system, it is far better than one in which the government becomes the arbiter of truth, thereby silencing one side of the debate.

Citizens have a right to expect the absence of deliberate or reckless untruth in corporate communications. To equate requiring that a multi-billion dollar corporation not deliberately deceive the public with “silencing” it is hyperbole unworthy of the ACLU and a twisted representation of the issue–help the ACLU do better.

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