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.

Comments

Can you say "double standard"?

[phillymjs]

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

Out of touch judges

[DNS-and-BIND]

One of the judges that wanted Nike to win said,

"Nike's speech, in an attempt to influence public opinion on economic globalization and international labor rights and working conditions, gave the public insight and perspective into the debate. This speech should be fully protected as 'essential to free government.'"

Let me get this straight, Nike issues statements denying it runs sweatshops because it wants to contribute to some kind of public debate!? Nike's one and only consideration is maximizing profits, nothing more. The judges were right, it's commercial speech.

Good quote

[interiot]

• "Full free speech protection for one side and strict liability for the other will hardly promote vigorous and meaningful debate."

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.

Other corporate rights

[IntelliTubbie]

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.

Then I suppose you think corporations (including non-profit corporations, of course) should be denied:

• the right to be free of religious persecution -- the government can freely discriminate against Jewish, or Muslim, or atheist corporations (1st amendment).
  
• the right to be free from unreasonable search and seizure -- Uncle Sam can just walk into your small business without a warrant and take your stuff. (4th amendment)
  
• the right to due process (5th) and speedy and public jury trials for criminal offenses (6th) -- the government can shut your business down without reason and without telling you what you've been charged with, and give you a secret trial or delay the trial indefinitely.

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