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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.
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.
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.
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.
"...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
Its the $100 million dollar sponsorship deals that drive up the price of a pair of shoes and drive down the wages of those paid to assemble the shoes.
If you think Nikes are really good shoes (style, function, construction) you need to head somewhere other than FootLocker for shoes. There are dozens of sports shoe makers, try one. You'll find that nikes are designed for looks first, function second.
How many times have you had a beloved old pair of Nikes that eventually wore down to sharp plastic bits digging into your heel? Nikes are poorly made shoes, with poorly paid workers, whith fantastic marketing.
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
"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.
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.
Try to imagine a free society without corporations at all, would be one solution. Granted that's a drastic step from where we are now, but it's part of the reason the US fought for independence in the first place -- the boston tea party was a revolutionary response against monopolistic practices by the UK-based East India Tea Company.
First of all, in early America, a corporation wasn't a thing recognized by the federal government at all - they were state-based. And no, they didn't have any rights. They were legal entities to pool the financial interests of a several people for a specific transaction, or series of transactions. If someone acted illegally on behalf of the corporation, poof! It was dissolved.
Basically, yeah, it sounds like an okay system to me - corporations have their charter (right to exist) yanked if they act illegally. I understand your due process concerns, and yes, the alleged illegal behavior should be proven before a charter is revoked.
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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
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.
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 have unknowingly touched on where I have a problem with tobacco from a capitalistic standpoint. Capitalism is based upon the consumer's ability to make informed decisions about where to spend their money. This in turn is based upon the principle that free will reigns supreme in the market: consumers and producers are free to decide how to best spend their money. Now, when addictive chemicals are introduced into the equation the model is no longer so pure, and the capitalist system is affected thereby. In the case of tobacco (and other substances with addictive chemicals as a key constituent) you are, to my mind, cheating insofar as capitalism is concerned.
Now, I understand that a certain degree of addiction can be said to take place when almost any substance is consumed. But I think you would agree that nicotine is in a class above other similar chemicals, due to its well known characteristic of being extrordinarily addictive. As such, the continued sale of tobacco causes me a degree of concern as a small-l libertarian. I believe in free market principles, but those principles must occasionally be protected from those who abuse the system. I am increasingly of the opinion that the tobacco companies, instead of merely being another successful player in the free market, are instead the incorporated version of the Cali cartel.
I understand that it is currently fasionable to believe that free will reigns supreme, and that in the case of smoking the initial decision to "spark up" is untainted by any addiction. But please keep in mind two things: First, that the initial decision is usually made in youth, when wisdom is not generally a core part of our character. Second, that the (wise) decision to cease smoking is made more difficult by the addictive nature of nicotine, and that this in and of itself is out of bounds for a successful and fair free market.