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Nike Denied First Amendment Defense
Several people have written in about an interesting decision handed down by the California Supreme Court. Nike, which has been repeatedly criticized for sweatshop practices in its contractors' factories, has made a variety of statements to the press contradicting these allegations (although in general, third-party examinations find them to be substantiated). A lawsuit was filed, charging the company with deceptive advertising under California law, and Nike was accused of trying to greenwash its image. Nike claimed that the First Amendment prevented it from being sued for these statements. The first courts to look at the case agreed with Nike; the California Supreme Court agreed with the plaintiffs and allowed the suit to proceed. (See also Nike's press release.) There are all sorts of interesting issues raised concerning corporate and commercial speech, the protection it has/ought to have, etc. There's a law.com article that goes a little more into the legal issues.
The sooner we stop using laws designed for people for corporations the better off we will all be.
What is pirate software? Software for inventory of stolen treasure?
The more lawyers get fed by big corporations, the less will come after me, so I say, lets mod this lawsuit up all the way to the supreme Court!
Is this truly the only Earth I can live on?
Nike shoes suck anyways. Dr. Martins all the way :p
There are certain types of speech specifically exempted from First Amendment protection by the courts. Libel, slander, and corporate fraud are among these.
I can just see it now. Our filings on our third quarter profit, while exagerated 300% is protected by the 1st ammendment.
From law.com
In her separate, 30-page dissent, Justice Brown -- making references to Harry Potter, Lord of the Rings, and King Arthur's Court -- said Nike's statements should have been protected because the commercial and non-commercial aspects were "inextricably intertwined."
I'm so very scared, I mean Harry Potter????
I'd do something interesting, but my server can't handle a slashdotting.
Maybe this heralds the beginning of the end of Constitutional Rights for Legal Fictions -- that whole Santa Clara County v. Southern Pacific Railroad Company / 14th Amendment debacle.
(Historical Information)
Napster-to-go says "Fill and refill your compatible MP3 player", which is a lie. It's not MP3. It's WMA with DRM.
Between this and the SonicBlue court order, it seems pretty clear that if you are a plantiff move your case to California because the judges there don't give a rats a** about the constitution.
So wait, Nike tried to say that lying in advertising was protected by free speech? I don't believe it.
/. post.
Hwell... I suppose in a perfect world it would be protected, and in a perfect world, their opponents would be able to attach a response saying, "the statement you just heard was a lie," the same as as a followup to a
However, deceptive advertising has been against the law for a while. Nike is grasping at straws.
Just do it.
---
Destiny- land.
The happiest blog on earth.
-Is that I shouldn't try to post with a parrot biting my ear, thus the blank post above.....
...
Sorry, the basic fact is that Nike is trying to have it both ways:
1-"we have the rights of an individual"
2-"we do not have the responsibilities of an individual, we have all the shielding of a corporation"
A quote from theire website makes me want to just play a sad violin
"The majority's conclusion that Nike's statements are commercial speech and subject to state court regulation, supported by only four of the seven justices, sets a dangerous precedent by restraining companies, such as Nike, from making public statements about their business practices when challenged in the arena of public debate..."
IOW "gee we cant lie about our use of sweatshops any more".
Yes, and their shoes suck.
In 1993, Michael Jordan alone was paid more money than the 30,000 Indonesian women combined to make his Nike shoes.
Source: (Dr. Kris Heggenhougen, Medical Anthropologist, Harvard Medical School, at the 8th International Congress of the World Federation of Public Health Associations, Arusha, Tanzania, October 12-17, 1997.)
It's a pity how comfortable their Shox R4 series is.
Nicotine free Amish .sig.
So, let's see... when Nike misrepresents itself to the public about how it really abuses human rights according to its own internal audit, they say that that's just them exercising free speech.
:-)
But just try to exercise your constitutional right of free speech by creating a website critical of Nike (or most other megacorporations, these days), and their lawyers will try and in most cases succeed at crushing you, leaving nothing but a smoking crater in their wake.
I guess in addition to yelling "Fire!" in a theater full of people, it's also wrong to yell "Sweatshop!" in a factory in Thailand full of orphans sewing the "Swoosh" on shitty sneakers at midnight.
On the plus side, at least I don't have to change my spending habits-- since I prefer plain, black sneakers and Nike only sells shoes that, if they were cars, would have been driven by pimps in the 70's.
~Philly
Well, apparently we found a company that's more Evil than MS/Sun/AOL combined :)
Unfortunately, I don't believe that it's up to the court to decide. I think, consumers, should boycott Nike products.
"If Nike's position were the law, then a company could make blatantly false statements as long as they included something in there that looks like its part of a public debate," said Alan Caplan.
Damn straight. I do not have a right to make deceptive/false claims like this, neither should a company.
My own thought on having US based corporations manufacture goods outside the country? The United Streets should view those factories as being within the US, and charge applicable fines to corporations that abuse their employees (by United States standards). If the company doesn't like it, fine, they can move their business to the other country. Of course, then they should pay stiff import fees, as in charge enough money to not make it worth it for the company. Problems with this?
Well sure there are some to consider...how do you decide what "minimum wage" is in another country? $5 an hour in some third world country would make you rich enough to create a military rivalling your government's, probably. So that's something I couldn't answer. But the law guys should think about this....
The Right Reverend K. Reid Wightman,
..when Nike gets sued and cuts jobs to cut losses, how are those little kids in China going to be able to afford those 3 bowls of rice a week?!?!
"...one percent of Nike's annual advertising budget would raise the 12,000 young Indonesian women making Nike shoes above the poverty line."
http://www.nikewages.org/issuehistory.html
Maybe I'm misreading something but as far as I could tell from the articles linked, Nike got slapped down for issuing advertising which was untrue. Well, d'oh.
In Britain, at least, the Advertising Standards Authority exists to ensure, among other things, that advertisments are truthful: surely this is a basic requirement - otherwise we end up with "Smoke Ciggies - They're Good For You". I fail to see how the First Amendment should guarantee a corporation's right to lie to the public in its advertising - this seems to be even more of a perversion of First Amendment rights than most.
So, is there something I'm missing, or was Nike's case really "We can say what we like with no respect to truth because the First guarantees our right to lie to Joe Public"? If so, then they should have been slapped down, and hard.
Cheers
Jon
So, does this mean that we can now sue Microsoft for all the FUD they plaster all over their website about what's legal and what's not?
I really hope that this one gets appealed all the way to the U.S. Supreme Court so that this gets sets as a nationwide ruling.
Of course, it would be nice if the SEC would make rulings ahead of time to prevent crap like this and Enron and so on. I think any publicly-traded company should be required to be honest. Lying to the public that trades your company is not a freedom of speech. It's failure to disclose.
The power of accurate observation is commonly called cynicism by those who have not got it. - G.B. Shaw
Here is what Nike should do.
1) Make no bones about who makes the shoes and continue doing the samething. It's flat out apparent that they are better off with nike as opposed to without Nike. You can't argue that.
2) NIke should make other shoes in other places meeting all the demands as the tree hugging peace loving anti-sweatshop commy bastards and charge the difference on those shoes. Simple effect, if they don't buy enough of them to make significant profit they the decision has been made. People really don't care that much.
People want this and want that and when you tell them they cost $25 more they say well that's not fair. Screw them if you want something pay for it otherwise find the cheapest bidder to do you work. It's better than letting them rot in a tent somewhere doing nothing.
The First Amendment allows Nike to make announcements such as the ones in questions. No problem. That is not in the question.
Nike's defense that the First Amendment would in any way shield them from charges of deceptive advertising is a bizarre defense. How the lower courts could have possibly affirmed is even more bizarre.
Think about it.
Drug manfacturers could make any claim
Automobile makers: "Our cars get 1000 mp/g"
Enron/Anderson: We're not responsible for anything
Etc...
How much will these 'sweatshop allegations' really hurt Nike? Consider the mentality of someone who will pay $150 for a pair of shoes because Michael Jordon endorses them. Do you think this kid is really going to care what CorpWatch has to say?
Shutting down free speech with violence isn't fighting fascism. It IS fascism!
"What this decision means," she added, "is that one side of the debate gets full free speech protection, but a corporation trying to defend itself is subject to strict liability."
Well, good. That's an "inbalance" I can live with. Remember, the topic here is whether or not people are being subjected to sweatshop conditions at Nike factories (or contracted facilities) overseas. Whether you think this is wrong or "it's better than whatever else they'd be doing," I think you're at least entitled to hear the truth about how frequent and how severe it is. Making a corporation responsible to tell the truth in that situation seems like a great idea.
To me, the whole problem starts with "Santa Clara vs. Southern Pacific Railroad," in which the (US) Supreme Court ruled that a corporation is a natural person for the purposes of constitutional rights protections. Which I think is a crock. A corporation shouldn't be entitled to free speech under Article I because it's not a person. It's a legal abstraction.
That said, I don't necessarily think that there should be severe limits on "corporate speech," but to protect them with the same constitutional power as a person creating an artwork or making a politcal protest... please. All corporate speech should be considered commercial speech and should be required, if nothing else, to be true.
There is often a big difference between an individual's right to free speech and a corporation's (which I would argue doesn't have one, as stated by the Constitution at least). Enron could say that its company had a right to say whatever it wanted to pump up stock prices. At the same time could the company get off free from one charge or another if the executives say that they were using their individual rights and not corporate ones.
sig
IMHO, since the case was so widely publicized and Nike made so many announcements, it is commercial speech. There is no bright line definition here. Not every press release is commercial.
This will come down to the interpretation of Nike's words, unforutnatly in this world everything you say or maybe even allude to, is/will be used against you in a court of law.
dam(that sucks)
Useless sig.
Never mind that this Nike case is not even remotely news for nerds, how many geeks come here to read about Nike's free speech?
No, this is just another case where an editor rails against corporations, etc, etc. etc.
Just sickening.
SIG:Slashdot: indymedia for nerds.
This has interestong implications since it means that if a company blatantly lies - one can sue it for that!
Have you heard of FUD ?
I wonder how much I can make by surfing to the Microsoft webpage and sue them for lies about
Linux and GPL.
Just saying it like it are.
I don't always agree with the ACLU's choice of clients or their politics, but I understand their absolute need to be there to defend people and personages that the general public wouldn't defend, but since WHEN do corporations have the right to free speech, especially deceptive speech?
The ACLU is absolutely, unflinchingly wrong in this case.
"Enough of this wretched, whining monkey life." -- Marcus Aurelius, _Meditations_, Book 9, 37
Exactly. When Nike said those things, they weren't directly describing a product they were selling. It was more of a debate.
One could argue that such things may be black and white, so no debate is needed. But such issues never are. Sometimes issues can't be reduced to a simple one sentance soundbite. We've all seen news articles where a quote is taken out of context, allowing it mean sometime more sinister than the situation actually is, even though the brief statement may be literally true. In these cases, the accused should be able to elaborate on some of the details.
However, if this ruling stands, special interest groups will be able to express any complaint they wish, and corporations will be more likely to just say "we can't confirm or deny that accusation" no matter how truthful or baseless the accusation is. This will make corporate secrecy even worse.
Any remember Jonah Peretti? He was the guy who tried to get Nike to print "sweatshop" on his new Nike ID sneakers. When they said no he tried to get: Sweat Shop, Child Labor, ChildLabor, Exploit and Swetshop.
s alon.com/people/cheapshots/2001/02/08/ artsfund/index2.html/ issues/0107/jockbeat.p hp
Nike respects the first amendment like Enron respects their employees.
pherris
Check out:
http://www.shey.net/niked.html
http://www.
http://www.villagevoice.com
"And a voice was screaming: 'Holy Jesus! What are these goddamn animals?'" - HST
Come on folks. Don't buy Nike! The maximum profit machine that is Nike will steal jobs from the USA steal the lives of workers in indo china and turn around and sell a crappy product at 4000-5000 profit margins! So don't be like Mike don't wear shoes made by slaves.
when they ban enctryption only criminals wi$21*J *#JF$%!@#$':
Your statement to the effect that you are a "Right Reverend", for example, could be ruled to be deceptive, given the nature of your "church".
However, you have the right to make that statement, unless you attempt to use that statement to specifically defraud some specific person or persons.
Certainly some (amazingly rare) statements can be determined to be false. But it's not always as easy as you might like. What about a corporation that stated "our products can reach speeds greater the speed of light". According to current scientific understanding, this is impossible. I believe such a statement to be false, personally. Prove it.
That's the whole point of the First Amendment in the U.S. It's not up the government to decide what is true.
Sweatshop practices is nothing worse than child Labor. I think no Amendment could save their arse out of this.
/. editors ever read newspaper at all, otherwise they'd not make this story a big deal, compare with other alleged crimes Nike was accused to have committed.
I wonder if
Corporate citizens are nothing more than a legal fiction, and as such do not deserve the rights and privledges of an individual citizen.
Any sufficiently advanced technology is indistinguishable from a rigged demo.
Blackstone, the revered legal authority at the time of the writing of the First Amendment, made what I think is the definitive statement on the limits of free speech.
"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."
(Blackstone's Commentaries on the Laws of England)
Under the California ruling, Nike has lost neither its right to free speech nor its responsibility for the consequences. This is as it should be.
Sometimes they fool you by walking upright.
Not allowing someone to buy a certain shoe is not a violation of the First Amendment. He could have bought the shoe and taped his own message over it if he wished.
The goatse guy for president. Win one for the gaper!
Obviously, Nike is not the only corp. being accused of sweatshop practices. I couldn't imagine if First Admendment could save their arse.
...How, exactly?
All they have to do is reverse Santa Clara County v. Southern Pacific Railroad and all free speech problems such as this are solved! As long as corporations are counted as people and make lies about various things in public (sweatshops for example), free speech rights will always be in jeopardy. 1st amendment rights aren't something that should be used as a convenient defence against lying in public.
Why yes I am paranoid! Thanks for asking!
I wrote a paper on Nike's supply chain a few weeks ago for Sociology class. Nike doesn't employ sweatshop workers directly because they don't own the sweatshops. Instead they contract out manufacturing work to the owners who are usually wealthy Asian folks. So you could argue that Nike isn't responsible for the exploitation. But then again, Nike knows what goes on and they still give sweatshop owners their business.
Nike claims that it is doing sweatshop workers a service because the workers get paid a higher salary than they would get otherwise if they were working in farming. For the most part this is true. The $100/month that Indonesian workers get paid is more than the median national income. But they are producing thousands of pairs of shoes that each sell for about $100...
Any "speech" by a corporation ends up being made by individuals. Ever hear of the 1st Amendment? Where in the 1st Amendment does it say that people do not have free speech rights if they are speaking for someone you happen to not like?
All "corporate speech" is made by the actions of "invididual citizens". Free speech: protected.
The commission doesn't have to determine truth. The advertiser does. If I say, "Swallow our cyanide capsules for continued long life", and there is a complaint from (presumably someone's partner, in this case :-), it is the ASA who ask the advertiser to prove their statement.
After the "proof", the agency simply decides whether the "proof" was compelling. If it was truly a proof, the advert is let to stand. If it is decided that the advert is wrong, it is removed, and there may be a punishment for breaking the standards....
The ASA are government-funded, but have removed party-political posters from in-power governments before now. They're maybe not perfect, but they're not the shady "them", as government bodies are typically depicted.
Simon
Physicists get Hadrons!
Then I suppose you think corporations (including non-profit corporations, of course) should be denied:
It's easy to bash corporations (and good for a few karma points), but try to imagine a free society where the above situations are possible. Imagine what would happen not just to our economy, but to our society -- many charities and universities are non-profit corporations -- if these rights didn't exist.
Remember, the Bill of Rights doesn't "give" rights to anyone -- it only prevents the government from taking them away.
Cheers,
IT
Power corrupts. PowerPoint corrupts absolutely.
Are all of these so-called sweatshops real sweatshops; that is places with a prison like atmosphere? The left has a bad habit of calling a sweatshop any place where the worth of the labor is low, regardless of the workers being quite willing to earn this low wage.
Hell, the democratic party greenwashes on a daily basis.
Actually, they do have to enslave people.
That's part of this whole notion of "fiduciary duty". Nike is literally doing the best it can for its stockholders. In a way, any company that *doesn't* do this isn't living up to its full fiduciary duty. (Sure, we can hope that Nike's actions will eventually generate enough consumer backlash that it won't be the most profitable course of action for them, but we've been hoping that for a long time now.)
Which is why I think fiduciary duty being the end-all and be-all of a corporation's existance is a crock. Too many people have forgotten that the original reason for allowing corporations was not to maximize profits, but rather to maximize production. As a society, we chose to allow corporations to form because we thought this would allow more people to reap more benefits - in a sense, a better world for all. And in a lot of ways, it's worked.
But we've let it go too far now. We need to start reigning the corporations in,and reminding them of their original purpose - to benefit society as a whole, not as a portion. It's time we reinstated partial legal responsibility for corporation ownership. You buy a share of a company, you better be prepared to use that share to make sure the company is doing right, not just maximizing profits, otherwise, you could lose more than just your investment.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
Nike can speak all they want, they just can't sell those items which they have falsely promoted.
Maybe that's semantics, but it makes sense to me.
Blockquoth the poster's
In counterpoint, the Philosopher also said:
I guess in a book called "Politics", it makes sense that Aristotle plays both sides of the fence.
The Mongrel Dogs Who Teach
Yes, I'm aware that advertising isn't fully protected as free speech under the First Amendment. I do think Nike's statements to the press shouldn't count as advertising. Even if what Nike said was false, this ruling could have a chilling effect on any corporation making any sort of statement, in case something they said would later turn out to be erroneous. When asked about anything by a reporter, a corporate officer would have to say "no comment", no matter the subject, and we'd never hear from them except in front of investigative panels.
Sue the god and win the case by forfeit when he (the defendant) fails to show up.
The owls are not what they seem
The World Trade Organization (WTO) is the international organization dealing with the global rules of trade between countries. Its main function is to lower trade barriers and ensure that trade flows as smoothly, predictably and freely (speech and beer) as possible.
Member countries have to avoid tolls and encourage free trade. They can only disadvantage foreing products in certain cases, e.g. mad cow disease. The US and Indonesia are both members.
Anyway, let's imagine the US decided to tax clothing companies who make shoes in Asian sweatshops or outside the US. Basically, this would be an embargo, or a toll if you like; you can imagine the other WTO member countries wouldn't be very pleased about it.
You'd harm the global economy; because of that, first of all, you'd get a huge fine and sanctions from the WTO. Expect other countries to tax imports on US clothes to subventionize their clothing industry. People would have to pay more for their clothes and eventually, a few companies would take their production back to the states.
But you'd also harm the kids in the sweatshops! They would have to work harder and produce more to survive. Their country's economy would suffer quite badly from that tax, long term development will slow down etc. Just look at what happened with Cuba.
Trollem mirabilem hanc subnotationis exigiutas non caperet
...to ask for an tag on those links?
but this ruling seems to be taking that right away. From the law.com article:
The court's ruling did not decide whether Nike's ads were false or misleading, instead leaving that for the trial court
This means the the court is NOT determining that Nike's statements constitute fraud, but shutting them up from making unpopular statements. I believe that Nike uses sweatshops, but I also think that they should be allowed to say that they don't, because I haven't gone to Indonesia or Guatemala and taken photographs of huge sweatshops that say 'Nike' on them. When someone has proof that they do use sweatshops (which many groups say that they do), and a court agrees with their proof, then Nike will have to say that they were big, fat, greedy liars (and then the American public will probably go on buying their products anyway, unfortunately).
"Now gluttony and exploitation serves eight!" - TV's Frank
If I were engaged in a "public debate" and deliberately spread lies about Nike (or any other major corp), saying they operated sweatshops, dumped toxic chemicals, or any number of other accusations that I knew were false (or that I had just made up and didn't actually have any evidence), and I managed to find someone who'd actually publish the message far and wide...
Nike would sue me for libel or slander in no time at all.
But if the dissenting judges get their way, Nike et all will remain above the law when it comes to making deliberately false statements about themselves!
Individuals and activist orgs (plaintifs) have got to tell the truth, but major corps (defendants) are allowed to lie when speaking to the public. Yeah, right, that'll "promote vigorous and meaningful debate". I'm glad only a minor of the judges bought (or maybe they were "bought" $$$) into this bullshit!
PJRC: Electronic Projects, 8051 Microcontroller Tools
as Nike *has already done,* is not the same thing as saying you aren't responsible for what you say.
KFG
I hope this goes through, then won't MS have to state its corporate policy of fucking over the large OEM's and stuffing there products down our throats.
The European Solution, of course, as encapsulated in the European Human Rights Act, is that we have freedom of /expression/, not freedom of speech. I'm unclear why there isn't more discussion of this. The point is that you're not protected whenever you say anything, you're protected whenever you express something. Sure there'll be time when courts decide this, but basically it means that if you say 'I think you should be allowed to burn black people', that's protected - they can't arrest you for expressing your opinion - but if you say 'Smoking is good for you', that's making a factual statement, and must be backed up.
California has a slew of good consumer advocacy lawyers. What is shocking is that Nike is able to get this far with what is "misrepresentation". If I am selling a piece of land that is a hole in the ground and represent that it is a rolling hill, I am liable to being sued for misrepresenting the facts. just like selling something by saying it is made in America, when it is in fact made in Kerplekistan. INAL, but isn't this akin to fraud?
Vital Idea
I guess in a book called "Politics", it makes sense that Aristotle plays both sides of the fence
Aristotle's stance is consistent; it merely doesn't hug one of the extremes.
One problem today in American politics is that a politician is expected to take an extreme stance, and stick to it, like "Abortions for all!" or "No abortions for anyone!" In my mind, the very fact that both extreme stances exist and conflict is essentially proof that neither one in and of itself is correct.
Aristotle is right on both counts; 1) there needs to be a way for laws to adapt when conditions render them obselete; and 2) there needs to be a system set up so that laws can't be changed based on the whims of the moment.
I think the U.S. actually follows these guidelines pretty well; it takes so many votes to amend the constitution that we've really only done it a handful of times. Amendments like the "flag-burning amendment" or "abortion amendment" or "health insurance admendment" have been thought too frivolous to really have to go that deeply into our legal system. Really, with the exception of prohibition, most of the amendments have been absolutely necessary as times changed. Women's sufferage isn't something that should come and go as the national mood changes, but it is certainly something that needed to be implemented when various technologies drastically changed the role of the woman in society.
"Beware he who would deny you access to information, for in his heart he deems himself your master."
It's been pretty clear for a while now. The consensus on Slashdot is that freedom is something to be protected for us and our friends, and something to be taken away from our enemies. Because we hate them, I guess.
This goes for free speech too now. At least it's consistent.
Someone mod Chiasmus up. Too bad you cant us your moderator points after you post.
Are all of those Windows XP advertisements showing users flying through the air also subject to review as false advertising?
The LA Times article says that if Nike loses in the end they would have to forfeit some of their profits from sales in California. The money would go to either charities or Nike's customers. If Microsoft was to lose, I'ld think that the Free Software Foundation would be an appropriate charity...
-
Nike forbids child labor (...) meeting or in some cases, exceeding certain U.S. and international labor standards.
Look! We're meeting certain international standards!-
Nike pushed the envelope of corporate transparency by placing user-friendly information on it's Web site, www.nikebiz.com
Look! We can't spell, either!-
Nike belongs to the Fair Labor Association, a White House inspired organization to monitor and set policies for companies manufacturing in developing countries.
Look! Our inspiration comes from the place that would never put commercial interests before social, human or environmental rights: the White House !!! Hmmm... Maybe the majority would rather influence this "modern" world, than just describe it?Timeo idiotikOS et dona ferentes
What I find endless amusement in reading /. is statements like the above.
Lawyers have done an amazing job of compartmentalizing the applicability of ANY decision. That's why you need lawyers to decipher the law!
For example, a case hits the California district court, where a case is one that sets a precedent.
So, there you are, in Oregon, 10 miles from the California border. Think that District court decision applies?
NOT!
Take a look at the case. The only thing decided here is that Nike cannot use "Freedom of speech" to defend their case.
Nowhere does this decision say anything about incurring liability, thus this sets no precedent for a suit.
Talk to a lawyer some time. Spend a few hours at it. If you can get a lawyer friend or something to tell you all about it, you'll realize that they are just as knowledge about "Bills of attainder" and "writs of something-or-rather" as an experienced programmer must be in APIs, algorithms, and protocols.
Just as there is a S--tload of sloppy, crappy software developed by wannabes in their spare time, there is a similar sized load of legal advice by wannabe paralegals.
It'd be nice if this DID set a precendent in that regard. The idea of corporations having "constitutional rights" I find to be a sick perversion of society.
And, both Nike and Walmart certainly have my distaste.
I have no problem with your religion until you decide it's reason to deprive others of the truth.
There's such a great misunderstanding about the first amendment here (and all over /. really). Nike is not violating the first amendment by denying this man a certain message on his shoes. The first amendment does not say "every corporation must print whatever it is any random person wants."
/. should start including links to the relevent portions of the constitutional text whenever it posts one of these stories. Sheesh.
The title of the law.com article is "PR Campaigns Loose Speech Protection". Now, I've heared alot about the differences between PR and out right advertising. But frankly, I've also heared people say that PR (creating "buzz") is a very good form of advertising. Thus, the whole premise that PR is not advertising is kinda funny to me. It seems that anything a company does in the political world be to be a "good citizen" and thus enhance their trademark's value, aka advertising. For example, press release put out on newswire is "PR" but a radio spot or a banner ad is "advertising". Escuse me, they are both places where the company gets out its message, and most of the time they both cost money. A newswire press release is about $300.00. Am I missing anything?
.. Lets not be too harsh on Nike, I mean they just want to spread happy thoughts right? But If you're really concerned about footwear guilt, why not try Bliss Shoes?.. Because Ignorance is Bliss.
Quote: Just like many low cost 'no-brand' shoes, Bliss Shoes are made by brown people in strange dirty countries. But unlike low cost shoes, ours go through a de-guilting process during the label affixing and packing stages.
Starsucks
We in Europe and also the USA make life hard for them by keeping their food and their textiles out of our markets. So they have to turn to other work, such as making trainers for Nike. The real villains are the Protectionists, who wage economic warfare against the poor of the world with trade barriers.
Am I a shill for Nike? Read my declaration of interest
this quote says a lot:
"Two years ago, San Francisco's First District Court of Appeal agreed with the trial court and tossed the case, saying that Nike's public relations campaign was protected because it was non-commercial speech that dealt with a topic of great public interest."
What crap. Public Relations Campaigns are intrinsically commercial. The only reason companies have PR budgets is to increase revenue through propaganda. The court did the right thing in moving this forward again. Another comment by one of the dissenting judges, that this stifles one side while giving free rein to the other is also wrongheaded. A judgement against Nike would only prevent them lying in order to further financial gain, i.e. committing fraud. They are not stifled; only their lies are.
Aristotle's stance is consistent; it merely doesn't hug one of the extremes.
Elsewhere (don't remember exactly as it's been 40 years since I looked at it), he said that every virtue lies somewhere between opposing vices. e.g. the virtue of being thrifty lies between being a miser and being a spendthrift. The recommendation for the individual to find the right balance was to steer away from the one which comes most easily to you. Perhaps the earliest recorded statement of YMMV.
> No, the big tobacco companies have had all of them beat for a long time now. Their products directly kill people.
If I was in the tobacco business (which I'm not) I wouldn't give a rip about who *chooses* to use my product knowing full well that it is deadly. I'm not in the business to protect the public (that's what the government and organizations like Thomas T. Melvin and The Truth are for). Cigarettes are not illegal, so if I can get you hooked at a young age I have a customer that will give me money on a weekly basis for the rest of his/her life. Makes sense to me.
If I spent my life building a hugely successful business, I think I deserve to be rewarded for my hard work. If there's one thing I learned from college, it's that hard work isn't enough. You have to step on people and back stab just to stay afloat.
You don't like that? Don't buy my product.
How many people do you know that are not aware that cigarettes are unhealthy? Not only that, but Philip Moris is now running anti-smoking ads on TV. What more could you ask from them? Since when has business been about being honest anyway?
If I spent my whole life crying and worrying about other people instead of myself, I would end up broke and probably insane.
This Flamebait was brought to you by the letters F and U, and the $ symbol.
funny, i thought the first ammendement was about freedom of speech, not about the sale of sneakers with personalised captions
If the findlaw article goes further into the legal issues, I'd be surprised to read one that didn't.. one good quote from the findlaw one is
Alan Caplan, one of the plaintiff's lead attorneys, saw a different message in Thursday's ruling. "Every company is going to have to meet the standard now," the Bushnell, Caplan & Fielding partner said. "If you're going to put statements out about [corporate policies], you're going to have to tell the truth."
In that case, I'm all for this decision, regardless of what the aclu wants to complain about.
There has been no finding whatsoever regarding the truth behind Nike's press releases. In fact, the truth has nothing to do with this at all.
The question posed to the CA Court was simple: Are "misleading" releases from a copororation actionably in the same sense that false advertising is?
Somehow, the Court came to a "yes" decision. This is one of the worst decisions in recent history:
1) False advertising is already disallowed. So, no, Nike can't say that "We pay all our workers more than $1/hr" if it isn't true, nor could they before the decision. Similarly, even before this decision, Phillip Morris couldn't legally claim that cigarrettes would make you bulletproof.
2) Lying about your oppontents is libel and/or slander, and is actionable. It has been for a long, long time. But this ruling expands actionably causes to truths that are, according to some judge or jury, vaguely and subjectively "misleading." Even if it the truth.
3) The anti-sweatshop individuals can exaggerate and mislead all they want. And they still can.
So, yes, you are misreading it. And I think most of Slashdot is.
The corporations have the huge, unfair advantage of having a large staff of lawyers ready to sue our butts off, suits that most of the citizenry are incapable (financially) of fighting. Maybe we should have some offsetting advantages as well.
If you think about it, corporations have to be treated like persons for some purposes. For example, they have to be able to enter into contracts. They have to be able to sue and be sued. They need to hold copyrights for a limited period to works they create (pay their employees to create).
Precedent does not in actuality confer full personhood. Corporations cannot withold evidence on grounds of self incrimination. On the other hand, as far as I know they can't be criminally prosecuted. Corporations need and should have the legal status of persons insofar as itis necessary to carry out their legitimate functions, but no further. I think this standard is reasonable, but it has not been applied in a reasonable way in the past.
For example, some right of free expression is necessary that they can sell their goods. They should even be able to speak out on public issues which affect their businesses. However, I think this privilege has been drawn overbroadly in the past to include outright engagement in politics. This gives them the kind of power that is beyond the reach of almost any individual, which is not good.
The ruling in the article appears narrowly drawn so that the first amendment privilege given to corporations is contracted, but only slightly as befits a well crafted legal ruling. Corporations have no right to misrepresent their business practices. This makes sense. I as a person have a right to misrepresnet much of my life, because it doesn't really concern you. However consumers are increasingly considering business practices as part of their puchasing decisions. Because we live in a world where brands are one of the most important properties, it is not unreasonable for consumers to have a right to a true image of what a company stands for. If you are selling a brand as well as sneakers, then you are responsible to represent that brand truthfully.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Violation \Vi`o*la"tion\, n. Nonobservance; as the violation of a law or positive command.
Did Nike legally violate the first amendment: no. Has Nike [in the past] shown a total lack of respect for it: yes.
IMO it is hypocritical of Nike to knowingly make false statements and claim "commercial free speech" while contantly blocking the media from investigating their labor practices.
You can either support free speech or suppress it. Nike's choice is clear.
pherris
"And a voice was screaming: 'Holy Jesus! What are these goddamn animals?'" - HST
If anyone is interested in purchasing clothes that weren't made in sweatshops, you have to check out SweatX.net. Right now they're only selling bulk orders (i.e. 144 or more T-shirts with your logo on them) but they hope to sell to the general public soon.
They make all of their garments in Los Angeles, and their workers get paid a living wage, work in comfortable conditions, and have a say in how their company is run.
As far as sweatshop-free athletic shoes, the least of many evils appears to be New Balance - most of their labor is American, they don't spend any money on product endorsements, and they're committed to product quality. Note that they're privately held, not a publicly traded company, which helps to explain why they don't feel pressured to compromise their ideals in exchange for higher profits.
I'd love to hear about other examples of alternatives to sweatshops if anyone knows of them.
For using 10-year old indonesians as legal counsel!
For your security, this post has been encrypted with ROT-13, twice.
In 1993, Michael Jordan alone was paid more money than the 30,000 Indonesian women combined to make his Nike shoes.
So? You're comparing an American professional athlete to a worker in a third-world country. The average American pays 20 times more than the average Indonesian for everything.
Stop complaining about people making too much money.
For more information, click here.
Nike respects the first amendment like Enron respects their employees.
Last I checked, Nike is not a gov't agent, so they don't have to respect or even care about your first admendment.. the first admendment protects people from government censorship, not from everyone they want.
For the most part, I agree, but I think Israel's Knesset is better. *gasp* Israel? Well aside from the Palestinians, internally, I think their coalition government system does a better job at gaining consensus from ALL perspectives since it is so freaking easy to start your own political party. In the US system, it's like pulling teeth to get anyone to support a non-dominant party since the system is set up for 2 parties. Consequently, the US government has much less diversity of opinion than it could have.
Now, some people hate the Knesset cause it's so damn slow to get anything done. This, again, is because of the coalition system and you have to get enough votes from a lot of varied interests to support your bill. Personally, I think this is a virtue in government -- less opportunity for capture by entrenched interests, more opportunity for diversity of support and consensus.
-l
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The reason corporations were invented was to shield corporate officers from personal liability. I'm not sure even that justification makes sense. But even if the reasonableness of liability shielding is granted, why should corporations enjoy privileges like the First Amendment? Those rights should be for people, not for legally contrived abstractions.
WWJD for a Klondike Bar?
At the risk of being taken to court.... bullshit!
What this decisionn means is that if I knowingly lie about Nike's policies and procedures, they can take me to court (and often will).
On the other hand, if Nike knowingly lies about Nike's policies and procedures, I can take them to court.
Pretty much an even playing field, in my mind (except for the fact that they have 12,000 times the legal budget that I do.)
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
the right to be free of religious persecution
People have religions. Corporations, not being people, can't have religions. You might as well talk about corporations wearing blue jeans. The people who own corporations, on the other hand, as well as the employees of those people, may have religions, and discriminating on the basis of the religions of any of those people would remain illegal.
the right to be free from unreasonable search and seizure
The people who own the corporations have those rights, so the corporations don't need psuedo-human status to gain those rights. My car doesn't need its own status as a "people" to be free from search and seizure.
the right to due process (5th) and speedy and public jury trials for criminal offenses (6th)
People have due process. The officers of the corporation are people, and are responsible for the actions of the corporation that they own and control (just as I'm responsible for the actions of the car that I drive). I mean, it might be nice if my car (not me) got sued after an accident, but it doesn't make any sense, and it doesn't make any sense in the case of corporations either.
Giving corporations the legal status of property makes far more sense than calling them "people", and doesn't take any rights away from any real person anywhere.
Although PM may lie and whatnot, I am under no illusions about the safty of their product because for 5 mins every morning I cough up interesting things out of my lungs.
Hollow words will burn and hollow men will burn.
Since when did corporations, legal fictions, enjoy equal protection under the first amendment?!
-Kasreyn
Kasreyn: Cheerfully playing the part of Devil's Advocate to hairtrigger
I won't stop complaining.
If we have global economy, we must have global human rights.
Nike to Cease Manufacturing Products
"From now on, we'll focus on just making ads," says CEO.
If i may put forth my radical opinion on this topic. Basically what it boils down to is that corporations have no rights whatsoever.
This conclusion is based upon this premise : the constitution was laid down to create/protect/eludicdate the right of actual persons/citizens/voters. Living breathing people.
We as mebers of governed through our representatives we grant artifical entites like businesses privlidges that have many of the same peoperties as free speech. With those privlidges come responsibilities. We as citizens have the right and responsibility to (in a responsible and organized manner) restrict or allow the exent of those privlidges and responsibilites we gives to these artifical entities.
Your one of those people who can speak for hours and say nothing of value.
Here's a hint, in order to be taken seriously you need need more than slogans; the 'new left' seems to have many slogans, but so little to say.
You see your parent post makes a perfectly reasonable point, the cost of living is very different, and you respond not with an argument, but with a slogan, you lose, your point is dead.
First you say the truth has nothing to do with this at all.
Then you say But this ruling expands actionably causes to truths that are, according to some judge or jury, vaguely and subjectively "misleading." Even if it the truth.
Which part am I misreading?
Infuriate left and right
This case is about commercial speech, not corporations. If there were no such legal concept as a corporation, and the case was Kasky v. Phil Knight, et al. instead of Kasky v. Nike Inc, this issue would not go away. If this were a case about a small business owned by its only employee, this issue would not go away.
The only way to resolve this issue by looking at corporations is by saying that when a business becomes a corporation, it and all its employees lose all their rights; even this would not solve the issue since if that were the case, individuals would most likely not form formal corporations in the interest of protecting their rights, and just use byzantine, enron-style secrecy and accounting weirdness as a method of protecting their shareholders.
The real issue here is commercial (!= corporate) speech law vs. free speech rights. Assuming what Nike said is provably false (no case to decide otherwise), the basic question is:
Do free speech rights extend so far as to allow a businessman to lie about their product to the public in order to sell more?
This reminds me of the case where McDonald's claimed its fries were cooked with "100% vegetable oil" and neglected to mention that they were "flavored" with beef as well. Does anyone know what became of that lawsuit?
--
Benjamin Coates
Big Tobacco doesn't kill people. Idiots kill themselves.
To quote Dennis Miller: "If you didn't know smoking was bad for you you're lying through the hole in your trachea."
I don't see a gun to anyone's head telling them to buy that next cig. It's idiots that put those companies into power and it's the idiots that are dying. I don't have any qualms about it, even though since my parent's are big smokers, they're also idiots.
I don't think the ciggie companies should be held liable, no matter how much they lied about cig's not being addictive. I think people dying from some ciggy related disease got what they deserved and shouldn't be trying to take it out on someone else for "bad business practices."
To quote D. Miller again, "Of COURSE it causes lung cancer, of COURSE it causes emphazema(sp?). It's FUCKING SMOKE! Do you stand outside by a camp fire every half hour and inhale big breaths?"
Sure they lied and cheated, but it's not their fault millions of idiots still buy cigarrettes.
No sig for you!!
First, may people are hung up on the fact that Nike is a coperation, and, in their opinion should not have a first amendment right to free speech. Read the article again! The ruling wasn't about the right of corperations. It was about commercial speech. That includes partnerships, privately owned companies, and one man shops.
This effectively hampers one side of a policy debate as long as they arrive some economic benifit from the policy. Substitute an abortion clinic for Nike. Both are corperations. Both received economic benifit from the activity. Both strong positions on the debate. However, they can get sued under this law because they receive an economic benifit from the policy; while, their oppenents are immune under this ruling because they receive no economic benifit.
Second, there are two meaning of the word "advertisement". The first is copy ment to sell a product. The second is buying space in a newspaper, or other media, to express your opinion. The Nike ad fails into the second category; not the first. The "false advertising" laws only apply to the first category. In order to reach their conclusion, the court had to do some contortions to make the Nike ad be covered by the "false adversting laws. Note that Nike's critics can not be sued under this law, even if they blantely use false statistics.
This gives free reigh to one side of the debate; but, hampers the other side. Nike, or abortion clinics, can be hauled into court by their oppenents and be forced to "prove" every statement made in their "ads" were factually correct. Nike, or the abortion clinics, can not do the same to their critics.
Third, a lot of posters made comparisions to slander and libel laws; but, failed to realize that the lawsuit is not about either. Slander or libel are when you knowingly make false statements about someone else. The high burden of proof in these cases is on the plaintiff. They must prove that the statements are false and that the defendant knew they were false.
This case flips the burden of proof onto the defendant who has to prove that the statements are 100% correct. Believing the statement to be true is not a defense, unlike the libel and slander laws.
I feel like picking a fight with everyone who thinks they are right. - Rainmakers
Danny.
I have written over 900 book reviews
There needs to be a way to differentiate beteween advertising and what is not advertising.
Is every statement by every executive of a company advertising?
I get the sense you'd say "yes" which is easy to do, but not an answer that can really be argued with. Obviously, not every utterance by a company is advertising.
I do not agree with Nike's argument,though.
I can assure you, we're doing pretty well thanks to Nike!
- A.P.
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
I find it amusing that Nike's choice of advertisement wording is an issue for the Supreme Court. I would have thought their court debut would have consisted of them getting slapped for their business practises. You know, where they use manufacturers who employ children and make them work 72 hour weeks for $1USD per day. Ad wording is so moot when you are staring at a child who's hands were crushed in a piece of machinery and it was cheaper for him employer to have them removed rather than repaired.
...aside from the Palestinians
That's a pretty big 'aside' isn't it? Actually I've heard that the Knesset's structure is part of the problem, power is so tenuous that no stays in power long enough to solve the 'problem', neither the left nor right can do what they really want.
autopr0n is like, down and stuff.
multi-nationals like Enron
large multi-nationals like Nike
Monsanto
It is our governments, the EU and the USA, that do the most harm, with the Common Agricultural Policy and farm subsidies, and Multi-fibre Agreements.
If our own governments would stop shafting the poor of the world, and let them trade freely, their countries could develop a merchant middle class, and be better able to stand up to the lesser bullies who you cite.
Did you choose or have any influence on where you were born?
Did the 5 year old boy who is starving to death choose or have any influence on where he was born?
If not, then why should anyone be made to suffer for what happened before they were born?
You see your parent post makes a perfectly reasonable point, the cost of living is very different, and you respond not with an argument, but with a slogan, you lose, your point is dead.
"Cost of living" is nothing but what people pay to others for products and services necessary for their life. Obviously, in a country that mostly consists of people enslaved by foreign businesses "cost of living" will be low because everything is produced cheaply by people who are paid poorly.
Problems start when people need something not produced/sufficiently widely available locally -- then they would have to pay at the price level that foreign company expects from its consumers, and the difference between wages in "producers" and "consumers" countries prevents "producers" from achieving quality of life available to "consumers". Since in "global economy" this situation is widespread, the poster you are answering to, makes perfectly valid point -- "global economy" with corporations operating globally, yet people confined to their poor countries, breeds poverty and abuse.
Contrary to the popular belief, there indeed is no God.
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
(Yes, I'm posting anonymously, certain scary people would not like you to know that. And fuck you Taco for calling me a "coward" because of that. I'm too close to certain people/things to get identified)
See here for more info.
And and here
Palestinians aren't citizens. They don't want to be citizens of Israel
The only thing I know about what "they" want is that it isn't consistant. I'm sure there are lots of Palestinieans who would like to be Israli citizens, and there are lots who would like to kill every Israli. That's not the point. The point is that they are a problem and the Israli government hasn't been able to implement a resonable plan to solve it in 50 years. Some people have claimed that their particular form of government is part of the problem.
autopr0n is like, down and stuff.
If those people were allowed to return, then they would be Israli citizens, no?
There are millions of Palistinians, I'm sure that some of them would like to be Isralis. but who knows.
autopr0n is like, down and stuff.
Except if Nike doesn't respect the First Amendment then they can't use it as a defense, can they?
--
E_NOSIG
whether or not nike likes or approves or respects the first admendment has nothing to do with whether or not they are entitled to that right
Or is it because Jordan, the average American he is, needs to pay his chauffeur and his bodyguards and the Indonesians only need some chow?
"Only the small secrets need to be protected. The big ones are kept secret by public incredulity." - Marshall McLuhan
So is the comparison invalid because Jordan is a pro, and they are unskilled workers?
Yes, it is.
Or because he's an athlete, and they won't be doing sports anytime soon?
That also invalidates the comparison. You can compare unskilled workers in Indonesia to unskilled workers in the United States, making adjustments for different costs of living.
Or because he's an American and they're, well, gooks?
I did not bring race into this argument, and I am disappointed in you for doing so.
Or is it because Jordan, the average American he is, needs to pay his chauffeur and his bodyguards and the Indonesians only need some chow?
Michael Jordan is not an average American. If you wanted to help the Indonesians, you'd stop whining about Nike, fly to Indonesia, and give them some food.
In fact, I'm sure you have more money than most Indonesian people.
Shame on you.
For more information, click here.
Too true. I keep forgetting that it's all about what you can get, not whether you're entitled to it.
--
E_NOSIG