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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."
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.
Just Sue It.
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.
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
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's thought provoking reading nonetheless. Check it out...
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.
"The First Amendment's freedom of speech guarantee should apply to individuals, not corporations."
A corporation is legally the same type of entity as an individual (or a married couple) -- it's the context of the speech which is important, not who said it.
If I stand on a soap-box and say that communism sucks, that's 1st amendment (or the equivalent in your country). If I stand on the same soap-box and say "these are genuine gold rings I'm selling", then that's regulated commercial speech (i.e. you face punishment if you can't prove it's true)
Same person, same soap-box, different types of speech. And corporations are the same as individuals, that's why you're allowed to take them to court.
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.
Nike shoes are made in third-world sweatshops, often, by children. New Balance shoes are made in the USA by adults, and fit better too. Maye they'll use that in an advertisement.
How ya like dat?
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.
Ah, the variety on the Internet! There's a site just for you. (Thanks, Google.) More here. And even more here.
... abridging the freedom of speech" is talks of the speech, not the person. The right might be argued to belong to society as well as the individual, and is the right not to have government filter what we are allowed to hear. Also, though corporation are not real persons, neither are they independent automatons. They are collections of human beings who act through the corporation form; just as the corporation has the right to sue and be sued, and in a number of other ways act as a proxy for its constituents, it should "speak."
:) Surely we do not need to apply the same rules to Nike's denying it uses sweatshops as we do to regulating precisely what "low fat" on packaging must mean -- yet that is what California would do.
Many do consider corporate personhood a blunder, though to be picky the law technically sees them as quasi-persons with some, not all, of the rights of citizens, and those that they do have are often reduced in scope and strength.
I don't know of any stirring defenses of corporate personhood. However, when the 1st A. says "Congress shall make no law
I don't have any great love of corporations, but can see some evil in the government manipulating what they can say, perhaps doing so out of selfish self-interest. Oh wait, I'm anthropomorphizing again....
The antidote for misuse of freedom of speech is more freedom of speech.
-- Molly Ivins
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.
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.
STOP . AMERICA . NOW
Read up a bit more.
Sweatshop workers are very typically farmers who were making a poor scale of living slightly above the subsistence level in the areas they were before.
The usual course of events is that a large corporation moves in, convinces (or bribes) the government to call the previously "unowned" land that the farmers were using public, and then use their authority as the government to sell that public land to the corporation. The corporation then evict the farmers, calling on the government to back up their demands with military force if need be.
The corporation then builds a factory on this land and hires the locals to work there - often paying them just enough to maintain subsistence, if not a little lower. These jobs are typically how the government/corporation justify this move of removing the people from their farming to begin with.
Of course, nobody has "forced" the farmers to work there. No, they were forced off the land they were farming, but that doesn't mean they were forced to work at a factory - why, they always have the option to leave and starve if they want.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
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'
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.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Sounds familiar?
The preamble states the intent of the whole U.S.-constitution.
>Oh, and this idea that the founding fathers wanted corporations to serve the prublic good is bullshit-- more liberal lies about the past
"General welfare" is one of the goals of the U.S. constitution. This of course, is totally contraire to the idea of companies serving the public good. Especially, if they serve "We, the people", and not "We, the shareholders".
Besides, what a wonderful reasoning: "Liberal lies", "first ammendment fanatics", "Anti human rights".
Do you have any idea for what liberalism stands?
I suggest using "socialist lies" or "commie lies", this would give your post a more consistent style.
"Between strong and weak, between rich and poor [...], it is freedom which oppresses and the law which sets free"
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.
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. 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.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.
No, Voltaire had it right. It's just sad that I have to get lumped in with people like you.
-Hope
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.
It's very possible that the parent poster believes that NB's are made in the USA because it's very possible that his pair was. However, a larger portion is made in China.
There is no longer anything that can be done with computers that is nontrivial and clearly legal. -- Paul Phillips
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.
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!
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