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Supreme Court Takes Nike Free Speech Case
MacAndrew writes "The Supreme Court has granted review in a case previously discussed here that could lead to a landmark decision regarding "commercial speech." The California Supreme Court had ruled that Nike's statements denying the use of sweatshop labor in Asia could be challenged under the state's strict truth in advertising laws, under which truth is not a defense if a statement's context is deemed misleading, First Amendment notwithstanding. The California court essentially rejected Nike's claim to heightened political speech protection -- which would have allowed the company to raise defenses of truth and due care -- reasoning that Nike's statements were calculated to induce product purchases and thus commercial speech. The U.S. Supreme Court's consideration of this case provides a clear opportunity to reconsider the controversial political-commercial speech dichotomy in constitutional law. It is essential to bear in mind the question at this point is not whether Nike did anything wrong, rather to determine the standards by which it will be judged. The commercial speech question relates to many, many topics discussed here, such as telemarketer DNC lists, telecom disclosure of customer calling data, spam, spam, and spam."
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.
...I wonder if I am hypocritical in my reasoning.
I think Nike and any other company that exploits 3rd world labour forces, should be taken to the cleaners. They are as despicable as big tobacco, and just as ugly. I would support any other company that makes a sneaker that is as comfortable and lasts as long.
Nike is no dummy when it comes to marketing. Considering that nearly everyone wears shoes at some point in the day, it is a cut throat market. I'm sure many good companies have gone the way of the dodo, because American law didn't provide them with adaquate protection from companies like Nike who exploit the human race.
Saskboy's blog is good. 9 out of 10 dentists agree.
Commercial speech not the only example of areas where speech is limited. You can't lie in court either.
You are not alone. This is not normal. None of this is normal.
It is, without a doubt, NOT speech. Speech is expression or opinion... Nike made an incorrect statement of fact (ig. they lied). There is no artistic value in that.
Next we'll be able to advertise false prices, and make other false claims and say it was just speech.
If this gets an okay, the US will be the ultimate politican's paradise, as you can make any statement, and there are no criminal or civil penalties.
"Yes, my client confessed to murder, but that was protected speech, so you can't use it... Nah nah!"
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
The First Amendment's freedom of speech guarantee should apply to individuals, not corporations.
Corporations are supposed to server the greater good. But the drive for profit at all costs does not serve society well at all; it serves only a handful of shareholders looking to make a return on an investment. It's absurd to give powerful corporations the right to flagrantly violate laws of human decency in order to improve the bottom line.
<a href="http://www.joblessjimmy.com">Work is dumb and so is Jobless Jimmy.</a>
OTOH, if I sell you a 14K diamond ring, and it turns out that it is pyrite cubic zirconia, you have the right to refund and damages irrelevant of my beliefs. As much as I wish to sell you worthless crap at incredible markups, that would just be wrong,
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
It boils down to this: Activists said misleading (but not legally false) things about Nike. Nike responded to those unkind statements with "misleading" (but not legally false) statements. Nike is in trouble for "misleading" commercial speech.
"Commercial speech" is...what, exactly? Speech designed to tell you how to spend your money. Perhaps the activists' speech is also therefore commercial speech. If it's truly misleading, then the activists in question should be held accountable for it.
Today it's "corporate free speech"... will it be the "corporate right to keep and bear arms" tomorrow? I think another poster had it right, corporations exist to serve the public good. Since they are entities created by law, then all their rights come from the law, not from the constitution. Considering them "persons" under the constitution is ludicrous.
The US Constitution does not grant any rights to companies. It (should) only grant rights to people, not companies.
Well that's the point of this case, to determine just where exactly the line is to be drawn.
Frankly, though, right now it's bullshit. Companies can claim free speach protection, yet organizations such as the EFF and Unions can't. That's a large part of what makes it so messed up. If we WERE going to give corporations free speach protection across the board, we SHOULD give ALL groups of people/organizations the same protections and we don't.
Read the first amendment sometime, why don't you!
IT doesn't make any distinction between opinions or whether someone makes commerical goods or not.
It says "Congress shall make NO LAW restricting..." No qualifications. No quibbles.
Fraud, is a completely different matter- fraud isn't speach, its deception.
There is no allegation that Nike committed fraud here.
Yeah, and you guys panned the ipod too: http://apple.slashdot.org/article.pl?sid=01/10/23
On the other hand, commercial speech is held to a higher standard,. When a corporation makes a statement, it is assumed that the statements will greatly influence purchase decisions. For instance, Pizza Hut and Papa Johns were having quite a tiff a while back. The latter was insulting the formers sauce, and the former was insulting the latters water quality, Law suits ensued over truth in advertising. Clearly, if these statement were made by individuals in the street, there would be little contention. But misrepresenting commercial products is a different things.
As I understand it, the issue is whether a company can make public statement that it believes are true but are in fact false. For such a standard, we must accept the proposition the company officials make statements external to the PR machine. In the contemporary corporate world, this seems quite unlikely as communication is quite controlled (think fuckedcompany.com). It seems quite unlikely that statements made to the media are meant to be anything other than advertising. If it is advertising, then just thinking it is true is not enough.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
Question. If a corporation is responsible for the deaths of others can it be put it to death (and I don't mean being put out of business - there's no correlation between that and human loss of life)? Can a corporation be charged with treason? Can a corporation vote? Does it have feelings? Is it born with inalienable rights? Can a corporation be drafted?
Stop anthropomorphizing businesses.
The point is not wether we like Nike or not. It should not even be wether Nike wants to sell stuff or not. The problem is: once "commercial" speech looses its freedom, you get a really big problem deciding what "commercial" means.
If I say that Bush is gay, is that a commercial statement? Maybe I'm selling pink suits in Bush's size. Does that make it commercial? The point is: you don't want a court to decide what is commercial and what is not.
Fleur de Sel
Animals are not citizens, thus are not protected by the constitution. Koko the gorilla, as an example, is not granted free speach rights. The big question is: are corporations citizens? Do they deserve the same rights that are accorded to real people?
Similarly, until slavery was declared illegal, the Constitution did not apply to slaves. Their rights to free speach, trial by jury, etc were not being violated because officially they were not citizens.
Obviously this was not a good thing, and later the Constitution was ammended to outlaw slavery, at which time blacks became legally entitled to the same rights as any other citizen (though this was not enforced everywhere....)
So, no, this is not a simple open and shut case. If corporations are not citizens (and, I for one don't see how they can be counted as such), then they are not entitled to First Ammendment rights.
Also, regarding "communism", I would like to point out that such noted communists as George Washington, Thomas Paine, and Thomas Jefferson fought to have an 11th ammendment added to the original ten that would has specifically required all corporations to serve the public good, as well as specifically barring them from influencing politics in any way, shape, or form.
I'm a First Ammendment fantic, but I don't think it applies to corporations.
"Mission Accomplished" -- George W. Bush May 1, 2003
truth is not a defense if a statement's context is deemed misleading
My strict translation of this phrase: Even if what you said was the strict, factual truth, if anyone thinks you were lying, you've broken the law.
Heaven save us from fools with lawyers.
Good judgment comes from experience.
Experience comes from bad judgment.
Your endless braying has got to stop. Please?
Your points are not helped by name-calling and misleading comments.
It never ceases to amaze me how few liberals respect the Bill of Rights, or basic human rights.
That statement is so utterly false. It's sort of like me saying that conservatives have no respect for the dollar bill.
"sweatshop" is probably a meannigless term to you because you have never been poor. And liberals hating the poor? Okay, let me come back at you and say that conservatives hate the rich. Laughable isn't it?
Oh, and you might be modded down, not because of your views (notice that there *are* civil-acting conservatives on Slashdot quite regularly) but because you are screaming on and on incessantly. Like your neighbors dog that barks all night long while you're attempting to get some much-needed sleep.
Cogent? Apparently conservatives (apologies to the intelligent conservatives out there, I don't mean this directed at you) never took English 101.
The alternative is that companies will be able to say anything outside of "advertisements" without fear of being prosecuted. I don't see this as a problem. If they lie, someone else can tell the truth. Provided that the company isn't paying for coverage (a good definition of advertising) then access for the little guy isn't the problem.
Paul.
You are lost in a twisty maze of little standards, all different.
As a nationally local example of this, consider a people who flip burgers at a McDonald's restaurant. Since minimum wage varies considerably depending on locale, the same income standards that apply to more expensive areas don't apply the poorer ones. By the same token, we can't presume to enforce North American labour standards on foreign work environments.
Since running these things presumably isn't illegal there, Nike wouldn't stand to lose anything commercially if they just admitted the truth. The only thing that Nike stands to lose is how highly the general public thinks of them, but it seems like everyone already knows the truth anyways, so what difference would it make?
None, as far as I can see.
File under 'M' for 'Manic ranting'
Sir, I applaud you on your trollmanship.
You are an inspiration to us all through your ignorant waste of time.
Hizzah!
This is as obvious trolling as I've ever seen:
...liberals hate sweatshops because they hate the poor.
...few liberals respect the Bill of Rights...
Liberals apparently never took economics.
Moderators, please moderate appropriately, not according to negative psychology like:
And when you mod me down, realize you're trying to shut me up, just like liberals always do
Being able to predict bad moderation doesn't cancel out inflammatory comments, and doesn't count as insightful.
Someone reminded me that this issue is not about corporate speech, rather commercial speech. Everyone in any business is affected, not just corporations, so Nike being a corporation is merely a distraction.
I agree with you, just offering a few refinements that I hope are helpful...
Re 1st A., the "malice" standard of regard for truthfulness is for cases of defamatory speech re public figures. For otehr circumstances, mere negligence (carelessness) can yield liability.
An individual can make commercial speech just as much as a corporation. Whether one is a corporatiion is irrelevant.
Didn't know about the sauce and water. Who won?
At issue is something a bit more subtle -- under CA trade law, Nike can get tagged for making truthful statements that through their context are misleading. This is far greater liability that sweeps up many mere mistakes.
Businesses can make pure political statements which may or may not have profit motive. (I also know somne individuals who act only out of profit motive. They have the same rights I do.) Disney spoke up in favor of the Sonny Bono Act, for example (profit motive); an incorporated church group might register its opinions about abortion; NBC might comment on a proposed censorship law; and so on.
It seems to me copanies should held to their word what they write on a product label, and more leniently when commenting on the state of the Union. The line between ad and political statement is getting blurry, esp. with large companies wielding so much economic and political influence today. This is not necessarily a bad thingh; frankly I'm interested in hearing what an employer of 500,000 people thinks of the economy.
Simply incorrect -- Kasky pointed to what he claimed were factual inaccuracies in Nike's statements. To wit:
This is kind of tangential to the central question -- whether Nike should be allowed to baldly lie in press releases -- but what the hell. I took econ. Here's how I see the situation: World labor is a buyer's market. The world has a copious supply of misery, poverty, starvation, and need. That means that when corporations go shopping for labor, it doesn't take much searching to find a land so destitute that people will beg to work for twelve hours a day in a toxic cess. There are so many poor countries, in fact, that only the really wretched ones get blessed with factories, and even they have to lower their expectations significantly (this is referred to as "racing to the bottom.")
Now the demand for labor is roughly inelastic -- Nike isn't just going to fold up and stop making shoes if it suddenly has to pay its workers a living wage; it'll just make less of a profit, and the rusted can scavenger you're so concerned about will make more money, which was what you wanted, right?
Recognition of the imbalance in the labor market (there are many more workers than companies seeking employees, and so competition on the worker's side is fiercer) guides American labor laws, which prevent workers from working for slave wages or in toxic factories even if they "want to" (i.e. are being forced to by market conditions) -- these policies don't ignore economics; in fact, they recognize and correct economic realities which you're ignoring.
I honestly have no idea what to make of this business about "liberals." Can you please give me an example of a liberal viewpoint that is correct, i.e. one that you agree with?
If you can't, which do you think is more likely: (a) That the liberals have managed to arrive reliably at the wrong answer to every problem they have ever been presented with, or (b) that something else is going on?
If (b), what?
This is one of the central problems with capitalism.
Corporations should ONLY have rights when those rights don't conflict with the rights of any other person, animal or plant on the planet. We are alive. They are constructions supposedely build to better our environment.
Note the word 'capitalism'. The capital has all the rights. This must change if we are to survive.
After having read many of your posts on this topic, I have come to the conclusion that you are a rich bastard trying to protect the masses from reclaiming what is rightfully theirs.
You probably also work for Nike.
And what exactly is wrong with the ideals of socialism, anyway. Socialism asserts the rights of individuals over corporations, as opposed to capitalism, which asserts the rights of corporations over individuals.
Now there have been more than one instance of oppressive regimes operating under the guise of socialism that the world would probably have been better off without. North Korea, for example. But then there are a lot of instances of oppressive regimes operating under the guise of capitalism that the world would probably have been better off without. The US, for example. Ignoring these real-world examples, and focusing on ideals, socialism wins hands-down to capitalism, except if you are a corporation, or a rich bastard who has clawed his way to the top of the corporate world.
"The big question is: are corporations citizens? Do they deserve the same rights that are accorded to real people?"
Perhaps when corporations grow mouths (with which to speak), this will become an important question. Until that time however, perhaps the question is: are indiviual people who happen to be paid employees of a corporation allowed free speech on issues of public importance without the speech (ideas/opinions) they provide being applied as official commercial speech to the corporation itself?
So, if I work for Nike, and I say that some particular factory (or group of factories) is NOT a "sweat shop", or is not slave labor, when is the corporation liable for that speech (assuming the statement is even false, which seems a difficult proof itself).
Further, since there is such a division on the definition of the term "sweat shop" (even as far as whether or not a sweat shop can exist if the individuals working in said shop do so voluntarily), then how can such prohibition (against such opionative speech by corporations) be applied? If we can't agree on what the term means, how can we possibly (rationally) agree on wether someone has lied about stating that a thing is (or is not) a sweat shop?
A modern day witchhunt.
The question of exploitation and sweatshops is more about one of an attitude of charity and justice by those in power.
If there is charity and justice, then sweatshops are a good thing -- they are a step towards improving the life of everyone. And sometimes there are costs associated with that.
But if there isn't charity and justice, then sweatshops are a means to enslave, and are a step backwards.
That being the case, more often than not sweatshops that are locally owned and managed will eventually improve, because people cannot often see the person they are hurting every day, without starting to have some charity.
An example of this was CASSCO ICE (now owned by others), the producer of the 7-11's ice in the DC area. CASSCO means "Central Atlantic States Service Corporation", and it was originally a mafia holding company. Anyhow, the mafia bought out a Shenandoah Valley company, and started to milk it and destroy the industry. The people who worked there went to the CASSCO lawyer and complained. The lawyer saw this, turned around, purchased the company from the Mafia, and made it float. What had not been charity, turned to charity.
But when the factory is owned or directed by people in another country... well, it is hard to grow charity for someone you never see.
So I'd say sweatshops aren't all good or all bad. But when a wealthy American corporation regularly uses sweatshops to help their bottom line, then they have an interest in keeping the sweatshop situation going -- and it is more likely going to result in abuses.
Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's