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."

Comments

Commercial Speech

[kmweber]

One question--why does commercial speech get less protection under the law than other types? Is there something inherently bad about making money?

Speech is speech...as long as it cannot be proven false, all types of speech should receive the same protection.

Re:Commercial Speech

[MacAndrew]

Commercial speech had no protection until a Supreme Court decision 30 years ago. Here is a helpful timeline. The theory is that corporations are not real people, and there is a compelling public interest in regulating commercial speech to protect the health and welfare of the public -- such as the FDA requirement that drug makers as least briefly disclose side effects in those uplifting TV ads for their products. With individuals, you would not be able to compel additional speech like that. (There are doubtlessly better examples. :)

If you look at the cases in the timeline -- esp. Hudson -- it may make better sense.

Re:Commercial Speech

[snarfer]

Saying that corporations can lie to the public without consequence is fighting tyranny?

SOMEone's been listening to a bit too much propaganda, I think!

Fraud under first amendment excuse

[Alomex]

The first ammendment applies to opinions. Companies, on the other hand, offer commercial goods. If Phillip Morris states that cigarrettes do not cause cancer they are not expressing an opinion. They are describing the commercial good which they sell, and they should be held liable if the promise made is false.

Nike made a statement about the nature of the labor that produces their goods that is an integral part of the description of the nature and quality of their goods. If they lie about it they are not just freely expressing an opinion.

Surprisingly, it seems that the legal experts believe they *are* just expressing an opinion. A company can openly lie about the product they sell and that is AOk. If that is not orwellian 1984 I do not know what is.

Re:Fraud under first amendment excuse

[xigxag]

Well that's the point of this case, to determine just where exactly the line is to be drawn.

That's partially true, but this case goes further than that. Those on the side of the defense are arguing that there should be no line at all. They are claiming there should be no special category of "commercial speech," that speech by a company should have the same protection as speech by any individual. However, it would be correct to state that companies could then say anything with impunity, after all, even you and I with the full protection of the first amendment can still be sued for defamatory, slanderous, negligent, fraudulent or other tortuous speech of one kind or another.

The issue is whether or not a special category of less-protected "commercial" speech should exist. Clarence Thomas, in his concurring opinion to 517 U,S, 484 (1996), plainly says that, "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech. Indeed, some historical materials suggest to the contrary. " See also this article by Jonathan W. Emord which argues in favor of abolishing the distinction. (The seminal article espousing this position seems to be A. Kozinski and S. Banner, "Who's Afraid of Com mercial Speech?", but I can't find it online.)

SEC filings...

[Anonymous Coward]

I can just see it now. Our filings on our third quarter profit, while exagerated 300% is protected by the 1st ammendment.

Check this out if you care about the issue

[UpLateDrinkingCoffee]

Check out this web site if you care about the issue. I have no affiliation with them, but they put into words what I have been thinking for a long time about considering corporations "persons" under the U.S. constitution and granting them the rights traditionally associated with individuals such as free speech.

It's thought provoking reading nonetheless. Check it out...

There was no court ruling (urg! 2nd try)

[Broadcatch]

It wasn't until the late 1800s did a court ruling determine that corporations were people and thus were entitled to the same rights as flesh and blood citizens.

Actually, it was more like this:

In the 1886 Santa Clara County vs. Southern Pacific Railroad case, the U.S. Supreme Court ruled that the state tax assessor, not the county assessor, had the right to determine the taxable value of fenceposts along the railroad's right-of-way.

However, in writing up the case's headnote -- a commentary that has no precedential status -- the Court's reporter, a former railroad president named J.C. Bancroft Davis, opened the headnote with the sentence: "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws."

For the complete background, and very interesting reading, see Humans Vs. Corporations or if that's /.ed, try here.

Re:Support the Bill of Rights!

[aussersterne]

And on the sweatshop thing-- the liberals hate sweatshops because they hate the poor.

And conservatives, by comparison, love sweatshops because they love the way forced child labor and slave labor line their pockets in a way that legal labor never could!

If these "sweatshops" are so bad, then why are they preferred by the people who work in them to the alternatives? What, because there are no alternatives?

And why are there no alternatives? Because after hundreds of years of economic colonialism by the west, traditional subsistence structures have bee destroyed and any chance for competition on equal footing precluded!

Of course, liberals think that somehow Nike is responsible for there not being lots of better jobs for them to go to. Because Liberals apparently never took economics.

Right, because everyone agrees that Schumpeter trumps Marx! Oh wait... Economists actually have as many disagreements as researchers in every other field! It's only the conservatives who routinely say things like "ignore the bulk economic research until the liberals who rule the field stop harping on about economic colonialism" or "ignore the bulk of environmental research until the liberals who rule the field stop harping on about global warming" or "ignore the bulk of international policy opinion until the liberals who rule the NGO's stop harping on about the freedom fighters..."

Seems like you conservatives are always being nailed by the "liberals" hiding under every rock, doesn't it...?

And when you mod me down, realize you're trying to shut me up, just like liberals always do...

You have a right to speak nonsense, but not necessarily a right to be agreed with or even heard.

Re:how free is free?

[Anonymous Coward]

Why are you americans always so paranoid about this? Regulations on speech are *good* in many cases.

Consider the alternative... Suppose there were no truth in advertizing laws. You could be buying so-called 'low-fat' yoghurt that actually contains 20% more fat than 'regular' yoghurt. You can be buying an 'extremely safe' car that kills 20% of its drivers. You could be smoking an extra-heavy cigarette advertized as "good for your lungs". And you could be taking peppermint advertized as HIV-medication.

Standards in advertizing are good, even though they restrict speech. I wouldn't want to live in a country that doesn't have them.

Similarly, when I am working on a business deal, I expect my business partner not to lie. If they do (for instance, they promise a service but do not deliver), I do not want them to be able to claim "artistic freedom" - I want them prosecuted for breaking a contract.

A nation without regulations on speech can only exist in total anarchy.

Many kinds of speech must (of course!) be protected, but at least as many kinds of speech must be regulated.

Finally, a little poser (since I know I'll never convince you anyway). You sit in a restaurant. At the table next to you are two arab-looking guys. On their table are plans to a certain building, a DIY book on making bombs, and the daily schedule of a certain government official. They are openly discussing the best way to assassinate the government official. Free speech or not?

Corporate personhood a goof?

[MacAndrew]

The Santa Clara story is interesting, but I can find no support for it anti-corporation sites that are more or less quoting each other. In legal sources I see nothing. Also, not only does the decision itself not address personhood, it quotes the Chief Justice as saying, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."

It would be error to cite the decision for the proposition of "personhood" -- editorial headnotes indeed carry no weight -- but sloppy citation doesn't mean corporations are believed "persons" thanks to some long-forgotten error. The courts are not that goofy, and believe me every litigant who might benefit would have been raising it in their arguments ever since. All that's left is conspiracy theory.

I don't recall the actual origin or corporate rights, though I assume they for example have been able to sue and be sued from day 1. As for personhood, it may be just a bad metaphor. I am interested in learning its origin.

Re:Support the Bill of Rights!

[HopeOS]

Being conservative myself, I will be first person to say that this guy is either a troll or an idiot.

It never ceases to amaze me how few liberals respect the Bill of Rights, or basic human rights.

I find it amazing how many people, both conservative and liberal, have no appreciable grasp of the Bill of Rights. As for human rights though, the "liberals" clearly care more about it than you, or we wouldn't be hearing from them all the time. Whether their proposed ideas on the matter would be effective in remedying the situation is a different matter entirely.

Since "sweatshop" is a completely meaningless, derogatory term, Nike is being honest when they say they don't have any-- even if liberals say they do.

This is crap. You know, I know it, Nike knows it, and obviously the "liberals" know it. The term "sweatshop" is defined in Websters as "a shop or factory in which workers are employed for long hours at low wages and under unhealthy conditions." Date: 1892. If you prefer a friendlier sounding word then fine, but you are only deluding yourself.

And on the sweatshop thing-- the liberals hate sweatshops because they hate the poor.

Now this is just silly. Clearly the "liberals" would prefer that the workers made a reasonable wage, under reasonable conditions, on a reasonable schedule. They aren't talking about firing these people. They are talking about improving the conditions under which they work.

Of course, liberals think that somehow Nike is responsible for there not being lots of better jobs for them to go to. Because Liberals apparently never took economics.

Neither did you apparently. Nor civics, ethics, or philosophy. They are calling for Nike to improve the situation rather than profit off the backs of the unfortunate. Economically, that is very reasonable. We are not talking about the margins on tennis shoes. We are talking about the economic viability of these people. Their health is an integral part of that. Even conservatives like myself can see the difference. Where have you been?

I've been involved in theoretical and applied economics for nearly ten years. This is not a healthy free market. The supply-demand curve is skewed completely in favor of the wage providers. It is skewed so much so, that people are exchanging their health for wages. The "liberals" would say that price is too high, and I would tend to agree. I believe that it is unethical for Nike to perpetuate this situation when they have the opportunity to improve it. The historical fact that companies do not do this of their own accord is one of the many reasons why we have labor laws in the first place. From a conservative point of view, maintaining markets translates into long-term growth. And without that, we can expect nothing but tennis shoes from these people now or in the future.

And when you mod me down, realize you're trying to shut me up, just like liberals always do, because you disagree with what I say. I've brought up cogent points here- but I suspect you guys would rather I be denied that speech.

No, Voltaire had it right. It's just sad that I have to get lumped in with people like you.

-Hope

Re:Corporations should not have free speech

[Chagrin]

• I'm an honest businessman is no longer protected as political speech according to the court's new standard.

I'll nitpick your point in order to present mine: "I'm an honest businessman" is protected political speech; "We do our business honestly" is not. If the CEO of Nike wishes to make claims that he would personally not allow the use of sweatshops, he's allowed to. However, if the company wishes to go on the media (including letters to the editor), this is not going to be protected under the 1st amendment.

Has Nike historically been trying to change public opinion regarding their use of sweatshops? Yes. Just because this single piece of that media blitz was a letter to the editor does not give it protection of speech equated to that of an individual. If they (as a company) were lying, they need to be able to be held accountable.

You can probably see that I'm demonstrating an obvious loophole here in that a company can change the perspective of the speaker in order to retain free speech rights, but this is going to be unavoidable. However, I'd prefer to see that type of loophole used rather than force heightened protection of all speech made by a corporation.