Supreme Court Archives ⋆ Reclaim Democracy!

Introduction
Kasky v. Nike Inc : Facts, Reporting & Competing Perspectives
Arguments Against Nike or Against Corporations Enjoying Bill of Rights Protections
Arguments for Nike or for Corporations to Enjoy Bill of Rights Protections
Legal Briefs on Marc Kasky’s Side
Legal Briefs on Nike, Inc.’s Side
Kasky v Nike Court Decisions and Court Documents
Some Major Court Cases Involving “Commercial Speech”
The ACLU and Corporate “Rights”
Background on the Underlying “Sweatshop” Dispute

Introduction

Kasky v. Nike (Nike v. Kasky at the U.S. Supreme Court) involved the Nike Corporation’s appeal of an April 2002 California Supreme Court ruling. The California court rejected claims by Nike’s lawyers that the First Amendment immunized the company from being sued for an allegedly deceptive public relations campaign. A trial on the merits was precluded by the parties’ settlement following the U.S. Supreme Court’s decision to send the case back to a lower court.

This page presents all sides of the Nike case and the larger issues of corporate or commercial speech. We created this page to examine the judicial creation of constitutional rights for corporations and to raise awareness of the far-reaching negative effects that precedent has for democracy and our lives.

We reject the claim that the authors of our Bill of Rights intended to define persons as including corporations (see Corporate Personhood page for more on this). In addition to provoking public debate, we are working to persuade the American Civil Liberties Union to halt or reverse its practice of advocating for corporate personhood (the ACLU board backed Nike in court, though they offer no evidence of member support). We believe such advocacy ultimately undermines the critical human rights work for which the ACLU was founded (more below).

Facts, Reporting and Items Offering Competing Views

Just the Facts – Background on the events that led to the lawsuit (as stated by California appeals court)
Statement by the Northern California ACLU (with our responses to points raised within) – This is a good introduction to opposing arguments on treating corporations as persons. Our FAQ’s also presents direct point/counterpoint on the case.
A detailed New York Times report preceding oral argument at the U.S. Supreme Court.
On June 26, 2003, the Supreme Court dismissed Nike’s challenge of California law that allows citizens to sue for deceptive advertising. News coverage of the Court’s Decision

Arguments Against Nike’s Claimed “Right to Lie”

First Amendment Follies: Expanding Corporate Speech Rights by Robert Weismann
Our sign-on letter to the ACLU, urging its directors to stop advocating corporate personhood. This letter offers detailed argument and links to our endorsement form to urge the ACLU to change its position.

Arguments for Nike or for Corporations to enjoy Bill of Rights Protections

Within days of Ohio Representative Dennis Kucinich circulating a “dear colleague” letter, urging them to sign on to the Congressional brief in support of Kasky, all five Oregon representatives–Nike’s headquarters–circulated a letter arguing for Nike and asking colleagues not to sign on.

Commentaries Not Explicitly Advocating for Either Party

A critical response to media corporations’ advocacy by Cynthia Cotts (Village Voice)
On the Wings of Nike: A streamlined approach to the commercial speech doctrine by Anne Cunningham and Craig Greeman. Published by Communications and the Law (35 pp analysis-pdf)

Legal Briefs for Marc Kasky

Note: all briefs linked on this page are PDFs.

Respondent’s (Kasky) Brief in Opposition filed with U.S. Supreme Court (prior to Court granting certiorari)
Marc Kasky’s Original Complaint
ReclaimDemocracy.org amicus brief to U.S. Supreme Court (submitted by the National Voting Rights Institute).
Amicus Brief from California AFL/CIO to California Court of Appeals
California Attorney General’s brief to state supreme court

Legal Briefs for Nike

Nike Inc.’s Briefs to the U.S. Supreme Court

Nike Inc. Final Brief (62 pp,)
Nike Inc. Petition for Certiorari (asking Court to review CA court decision) (128pp)
Nike Inc. Reply to Marc Kasky’s Brief to the Court (prior to Court’s granting certiorari) (not available)

Amici Briefs

Kasky vs. Nike Inc: Court Decisions and Documents

The US Supreme Court decision, with dissent and concurrence
U.S. Supreme Court oral argument transcript
The California Supreme Court decision in favor of Kasky (72pp)
The California statutes under which Nike was sued are printed in the last six pages of Respondent’s (Kasky) Brief in Opposition to U.S. Supreme Court

A Few Significant Court Cases in the Evolution of “Commercial Speech”

First National Bank of Boston v. Bellotti (1978) cleared the way for massive increases in corporate corruption of politics. Spending money to influence politics is now a corporate “right.” Justice Rehnquist’s dissent here is a recommended read.
Central Hudson Gas v. Public Service Comm. of NY * (1980) This oft-cited case concerns a state ban on ads promoting electricity consumption
FEC v. Massachusetts Citizens for Life, Inc. (1986)
Austin v. Michigan Chamber of Commerce (1990) Upheld limits on corporate spending in elections
International Dairy v. Amnestoy (1996) Vermont law requiring labeling of dairy products using BGH is overturned
44 Liquormart v. Rhode Island (1996) State ban on advertising of alcohol prices is struck down

The ACLU’s Support for Corporate Claims to Bill of Rights Protections and Our Campaign to Change It

The ACLU sided with Nike Inc. throughout this case. Its national board cites the position of the No. California ACLU as representing their rationale. That statement is followed by a copy with our responses interwoven: Statement by the Northern California ACLU on Kasky v. Nike.

The ACLU has a controversial history of defending “smokers rights” and “free speech” for tobacco corporations with earmarked funds from those same companies. We consider this to be important information for understanding the background of ACLU policy in this realm. We have no knowledge of the ACLU taking money from Nike Inc.

Former Washington Post reporter Morton Mintz published several in-depth investigations on the issue, like: The ACLU & the Tobacco Companies from Nieman Reports ( 366k pdf file)

Sending hard copy to ACLU is best, but please e-mail us a copy of your letters to any ACLU representative (and send copies of any substantive responses). We also urge you to speak with your state ACLU chapter (see ACLU.org for a listing) and share your communications with us.

On November 20, 2002, the ACLU of Southern California passed a policy on commercial speech that directly contradicts the ACLU of Northern California’s defense of Nike’s alleged right to lie. While this is not a strongly worded policy and it sticks narrowly to the commercial vs. non-commercial speech framing, it is a great first step in provoking needed debate within the ACLU.

Background on the “Sweatshop” Dispute

While we addressed the Constitutional issues in this case and not Nike’s practices, we offer these links for those seeking background on the underlying issue.

Nike CEO Retracts Donation to U. of Oregon in Retaliation

See our Corporate Personhood Page for much more related material

Kasky v. Nike — Do Corporations Have a Right to Lie?

Contents