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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.
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.
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, 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,
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
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.
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
Like other human rights, free speech is for people. There is no point in extending this right to corporations in general.
In particular, companies should not be allowed to lie.
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.
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.
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
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
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."
-
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.
.. 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
No, it's not shutting them up at all. The ruling merely says that the suit attempting to prove that Nike's ads are false and misleading can go forward.
Nike was trying to preemptively strike down the suit before the substantial issues in the case could be heard.
They're free to continue running the ads.
Let me guess - YANAL, right?
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
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.
If Nike had won this case, it would meant that corporations would be able to lie through their teeth with impunity.
The court made a distinction:
This is not an onerous or unreasonable demand: Nike has a unique ability to know definitively what their own policy and aproaches are, and -- for the most part -- the public generally has to accept what they say as the truth because it's usually rather difficult to do the work it takes to independently investigate the truth of such statements.If what a company is doing is nasty, underhanded and disgusting, they may also be uniquely motivated to lie about what they're doing.
This also doesn't specially bind the company in the debate:
If I knowingly lie about what the company is doing, then I'm subject to a Libel suit (even if I'm not lieing, I could be subject to a SLAPP suit). Similarly, if the company knowingly lies about what they're doing, then they should be subject to a libel suit (or something equivalent to it). This rulling essentially says that they are.
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.
Well, this article has a couple of hundred responses, so apparently the nerds themselves believe this is relevant.
If regular people were immortal, had incredible wealth and power, and had the same privileges corporations have now in addition to the ones granted to them as people, I'd agree with you. As it stands, without some incredible medical, financial, and sociological breakthroughs, I think corporations will have the upper hand for some time in regards to the degree they can use and abuse their powers as "people".
It's been a long time.
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.
I can't speak directly on the specifics of Nike's facilities and those of its contractors. In general, however, these statistics can be extremely misleading. Yes, the sweatshops tend to pay much more in cash than their workers might make on the farm or in their old villages. But their workers may have to move to a larger (more expensive) town to work there, or they might be required to buy uniforms or tools at prices set by the company, that sort of thing.
More importantly, it's sometimes the case--again speaking very vaguely because I don't know much about this particular company--that the big business interests in poorer countries use illegal (or legal but unethical) means to remove farmers and craftspeople from their farms and villages, where they had lived in a barter or subsistence economy with very little cash.
For example, a young woman in Country X might be earning in the factory ten times the cash she used to make selling eggs from her family's half-dozen chickens; but back home she had nearly free rent, was able to make her own clothes, and had Grandmother nearby to watch the kids. She might have been poor by our standards on the farm but would have had a reasonably stable life, some control, a family network, and the ability to fall back on neighbors and friends when things went wrong.
In the factory, her schedule is dictated, the bosses don't know her or care to, even talking to your fellow workers is punished, and everything costs money. She might not have come there in a truly voluntary way. Perhaps the contractor bought all the local farms from the previous landlord and jacked up the rent just to get cheap labor in the factories. Maybe the government radically increased taxes on small farmers to get the same result. Or, in some countries, she may have been just ordered off the farm by corrupt police or government officials.
I believe that comparing dollars-per-day is dangerously misleading if it's done by the standards of the modern western middle class. Of course you and I know that making ten times as much money per hour is "better." But we're used to paying money for everything, and we don't mind it because of the nice effects of the division of labor that allows. Our job mobility, communication resources, and general ability to control our own lives mean we can hold employers accountable, even in a slow economy. It's not always like that for overseas sweatshop workers--they're far more likely to be evicted from their old villages, and left to work in the factories or starve, than to have freely made a choice to come to the big city for a factory job.
Sure, it may not be as grim all of the time as I'm making it sound. I'm mainly just objecting to the facile proposition that the higher cash wages from the sweatshop system are incompatible with exploitation.