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

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: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

[squiggleslash]

"Commercial Speech" is short-hand for words used in the sphere of trading. If we had no restrictions upon it, then there wouldn't be such a thing as "fraud", for example. Indeed, that's exactly what the Nike case is about.

Commercial speech not the only example of areas where speech is limited. You can't lie in court either.

Corporations should not have free speech

[release7]

The constitution did not grant the right of free speech to corporations. 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.

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.

Re:Corporations should not have free speech

[MillionthMonkey]

This is insightful? Jesus, read the fucking constitution sometime.

"Congress shall make no law..." Does NOT Distinguish between corporations and people.

People here are confusing the two issues (corporations/persons vs. commercial/protected speech). This really has nothing to do with the fact that Nike is a corporation. The same rules apply to an individual selling shoes at a street corner.

The confusion here partially results from the fact that Nike is the most evil of evil corporations, run by penny pinching demons from the underworld that take delight in human misery and suffering. (See? I just made a statement of fact that is most likely incorrect in certain details, but I can do so because it is an example of political speech.) Nike might respond with an assertion that no, Nike was founded by angels descended from heaven who dreamed of bringing exciting new careers to the Third World while putting quality footwear on the tired feet of American consumers everywhere. This would also be a misleading statement, containing factual errors. But would its response be political speech or commercial speech? It's a retort to a political attack I made earlier, so you'd say it's political speech. If anything Nike says could be considered political speech, it is this. However, Nike also has an obvious interest in selling its shoes, and its response will further that interest. So maybe this is commercial speech, right? The court actually bought into that argument. However, the nature of the speech is the real issue, not the nature of the speaker. If you agree with the court that this is commercial speech, you are implicitly saying that Nike is only capable of commercial speech because it makes a profit. The same rules will then apply to the guy selling shoes on the street corner. I'm an honest businessman is no longer protected as political speech according to the court's new standard. (Remember, the distinction between corporations and individuals that keeps coming up here isn't legally relevant.) So this is why you see groups like the ACLU jumping up and down and howling about this.

Typical, a bunch of slashdot posters oppose free speech.

You're painting with a broad brush. None of this is an argument against the restrictions on commercial speech itself. Free speech absolutism is foolish if applied blindly without judgement to all situations involving speech (e.g. spam, etc.). A statement by Nike that wearing Nike shoes has been proven by scientists to lengthen your penis is commercial speech. Nike has a protected right to say this, but they have to include a disclaimer like (results not typical) or something like that. Restrictions on commercial speech are old, older than you are, and you disparage them only because you aren't old enough to remember what life was like without them. Rolling back the restrictions on commercial speech would mean kissing "Results Not Typical" goodbye. The same goes for those fake newspaper ads about wonder diets that say "ADVERTISEMENT" at the top. Freedom of speech doesn't give you the right to lie to people and rip them off. Unless of course, you're in politics.

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...

Re:Commercial Speech

[UpLateDrinkingCoffee]

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.

Re:As I sit here with Nike's on my feet...

[macdaddy357]

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.

Re:Commercial Speech

[Photon Ghoul]

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.

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.

Le sigh

[Dannon]

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.

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:Support the Bill of Rights!

[Chops]

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 exactly the same situation as Nike saying "We make fine quality shoes" and liberals suing them because they insist their shoes are not fine quality and that Nike was deceptive in claiming they were.

Simply incorrect -- Kasky pointed to what he claimed were factual inaccuracies in Nike's statements. To wit:

The complaint alleges that, in the course of this public relations campaign, Nike made a series of six misrepresentations regarding its labor practices: (1) "that workers who make NIKE products are . . . not subjected to corporal punishment and/or sexual abuse;" (2) "that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;" (3) "that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;" (4) "that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;" (5) "that workers who produce NIKE products receive free meals and health care;" and (6) "that NIKE guarantees a ' living wage' for all workers who make NIKE products." In addition, the complaint alleges that NIKE made the false claim that the Young report proves that it "is doing a good job and ' operating morally.' "

And on the sweatshop thing-- the liberals hate sweatshops because they hate the poor. They'd ratehr that someone who makes $5 a day sewing shoes for Nike be reduced to making $1 a day scavaging rusted cans, or whatever. ...

Because Liberals apparently never took economics.

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.

you're trying to shut me up, just like liberals always do

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?