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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.
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>
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?
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.
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.
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
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.