Resources Available as Nike v. Kasky heads to U.S. Supreme Court
Date: Sun, 12 Jan 2003 22:38:43 -0700
From: <info@reclaimdemocracy.org>
Subject: Resources Available as Nike v. Kasky heads to U.S.
Supreme Court
Special Update From ReclaimDemocracy.org
On Friday, January 10th, the U.S. Supreme Court announced that it
will hear Nike's appeal of the decision by the California Supreme
court to send the Nike v. Kasky case to trial. In May, the
California Supreme Court rejected claims by Nike's lawyers that
public statements about its labor practices were protected as
First Amendment free speech and not subject to false advertising
laws. The U.S. Supreme Court appeal is now called Nike v. Kasky,
Docket 02-575. A resource list about the case appears below.
As many of you know, Nike v. Kasky has become an important test of
corporate claims to First Amendment protections in order to avoid
accountability under state consumer protection laws. We view the
case as a key opportunity to educate people about the power behind
corporate personhood.
ReclaimDemocracy.org has a *new* section of our website dedicated
to the case that presents extensive background information and
arguments from both sides of the issue,
http://ReclaimDemocracy.org/nike/ plus a major section launched
last year on Corporate Personhood.
http://ReclaimDemocracy.org/personhood/
We also have a campaign underway to urge the ACLU to stop
supporting corporations like Nike in First Amendment and Bill of
Rights cases. Individuals and organizations can sign-on to our
letter to the ACLU, available from both the nike and personhood
pages above.
We hope you'll find these resources helpful in writing about this
case. Feel free to contact us for more information. Please
consider linking to our /nike/ page if you publish about this case
as we've worked hard to put it together.
Sincerely,
ReclaimDemocracy.org Board Member
ReclaimDemocracy.org
PO Box 532 Boulder, CO 80306
303-402-0105 info@ReclaimDemocracy.org
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Resources for Nike v. Kasky -
ReclaimDemocracy.org:
Nike v. Kasky - Does Our Constitution Protect "Commercial Free Speech?"
http://ReclaimDemocracy.org/nike/
Thom Hartmann:
Now Corporations Claim The "Right To Lie"
http://www.ratical.org/corporations/humanVcorp.html
Supreme Court:
Docket for 02-575
http://www.supremecourtus.gov/docket/02-575.htm
Nike:
Nikebiz :: The Inside Story
www.nikebiz.com
Regarding the latest news, an AP story and a Washington Post
article announcing the U.S. Supreme Court appeal are attached
below.
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from New York Times online
http://www.nytimes.com/aponline/national/AP-Scotus-Nike-Speech.html
Supreme Court to Hear Arguments in Nike Case
January 10, 2003
by The Associated Press
Filed at 7:34 p.m. ET (second version) WASHINGTON (AP) -- Sneaker
maker Nike Inc. cleared the first hurdle in a Supreme Court battle
over the scope of corporate free-speech protection.
The court said Friday it will consider when company executives can
be sued for how they respond to accusations of things like running
sweatshops or making dangerous products. The case involves what
Nike says are unfounded allegations that workers who make Nike
products in overseas plants were mistreated -- and that the
company lied about it.
In commercial speech cases, there is no First Amendment protection
if it can be proven that information was false or misleading. In
other types of free-speech cases, people who file suit must prove
either negligence or actual malice.
Nike and companies that back it contend they have full free-speech
protection when responding to such allegations. Critics argue that
companies that mislead the public while trying to sell products
should not be shielded.
For more than two decades the Supreme Court has struggled to
define commercial speech, which gets less protection than other
types of speech like political expression. A coalition of
companies, public relations executives and newspapers and
television stations had urged the court to clarify the standard.
Some 30 news organizations, including ABC, CBS, NBC and top
newspaper chains, sided with Nike and argued in court filings that
reporters will not be able to get company executives to talk
freely about the safety of products, racial discrimination or
environmental concerns about their industry, because of the fear
of the lawsuits.
The result will be "inhibiting the media's ability to compare both
viewpoints in order to ferret out the truth," the groups said in
court filings.
New York First Amendment lawyer Floyd Abrams said a lower court
watered down the free-speech protection businesses have in the
Nike case and if the decision is not overturned by the Supreme
Court "corporations will speak less because they will be warned by
lawyers and business people to shut up, lest they be sued."
The case arises from a campaign by Nike to defend wages, treatment
of workers and health and safety conditions at Asian plants, run
by subcontractors, where workers make tennis shoes and athletic
wear with the distinctive Nike swoosh logo.
The company was sued by San Francisco activist Marc Kasky, who
contends the company lied about how much the employees earned and
how they were treated.
Alan M. Caplan, one of the lawyers for Kasky, said Friday that
companies need to be held accountable for what they say when
trying to sell products. If they aren't, he said they could
falsely claim that their products were made in the United States
or that workers were treated well.
Caplan said Nike put false statements about its labor practices in
a pamphlet distributed to reporters, in press releases, on the
Internet, in letters to organizations, and in a letter to the
editor -- all efforts to sell products. "The public wants to be
told the truth," he said.
A sharply split California Supreme Court ruled Nike could be sued
under a state consumer protection law and that the defense
campaign was commercial speech.
The case has not gone to trial. The high court will decide before
July if it will, and if others like it can follow.
Oregon-based Nike hired a high-powered team of lawyers in its
Supreme Court appeal, including Harvard professor Laurence H.
Tribe and former U.S. Solicitor General Walter Dellinger.
Tribe said that under the California decision, companies cannot
respond to critics.
"There is a Draconian scheme in which one side is virtually
unfettered in what it can say that is critical of the business,
and the other side is shackled," Tribe said. "The ultimate loser
is the public."
The case is Nike Inc. v. Kasky, 02-575.
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http://www.washingtonpost.com/wp-dyn/articles/A40833-2003Jan10.html
Nike Speech Case Goes to High Court
Justices to Rule on Artistic Vs. `Commercial' Expression
By Charles Lane, Washington Post Staff Writer
Saturday, January 11, 2003; Page E01
The Supreme Court announced yesterday that it will hear an appeal
by athletic apparel maker Nike Inc. of a California court decision
that Nike says forces corporate America to disarm in its war of
words with anti-globalization activists.
At issue is a May ruling by the California Supreme Court upholding
the right of corporate critic Marc Kasky to sue Nike for false
advertising, asserting that the company misled the public when it
denied that its subcontractors mistreated workers in Southeast
Asian shoe factories.
The court ruled 4 to 3 that Nike's statements were "commercial
speech" intended to help it sell merchandise and therefore not
entitled to the same First Amendment protection that other forms
of expression enjoy.
Almost from the day it was issued, however, the ruling -- which
has national impact because so many companies seek to do business
in California -- has been under attack not only from Nike, but
also from several corporations, public relations executives and
media companies.
Nike and its supporters say the ruling could apply to almost any
public statement a company might issue regarding its corporate
practices, including a remark to the media, thus deterring
corporations from communicating even on matters of genuine public
interest.
"No company should feel impeded from engaging in the marketplace
of ideas just because they operate in the marketplace of goods,"
Nike attorney Walter Dellinger said in a prepared statement
yesterday.
A brief signed by 32 media firms and professional organizations
told the court, "The California Supreme Court's decision poses a
serious and immediate threat to the media's ability to report on
important issues regarding corporate America." The Washington Post
Co. was among the signatories.
The Web site of Reclaim Democracy, a Colorado-based anti-corporate
group, said that the California ruling merely recognized that
there is no constitutional "corporate right to lie." [Ed Note:
comments on the inaccurate "anti-corporate" label can be found on
our website at
http://reclaimdemocracy.org/nike/washpost_court_certiorari.html ]
"The lawsuit specifically describes numerous factual
misrepresentations Nike made to the public about the labor
practices in the factories that manufacture its shoes," Kasky's
attorney, Alan Caplan, said in a statement. "These
misrepresentations were not part of any political debate, but were
made by Nike to encourage customers to buy a pair of its shoes."
Kasky's brief also noted that the California Supreme Court merely
permitted the case to go to trial, where Nike would have a chance
to defend its claims.
The case sets the stage for one of the court's most important
rulings on commercial speech in recent years. In past rulings, the
court has tried to distinguish between company claims aimed at
potential buyers, which may be tightly regulated or in some cases
banned, and political or artistic expression, which is entitled to
constitutional protection.
But as the boundaries separating advertising, art and politics
have blurred, scholars and judges, including members of the court,
have come to question that dichotomy.
Supreme Court Justice Clarence Thomas wrote in a 1996 case that he
does "not see a philosophical or historical basis for asserting
that 'commercial' speech is of `lower value' than `noncommercial'
speech."
And a dissenting justice on the California Supreme Court, Janice
Brown, wrote in the Nike case, "I believe the high court must
reassess the commercial speech doctrine and develop a more nuanced
inquiry that accounts for the realities of today's commercial
world."
The case is Nike v. Kasky, No. 02-575. Oral arguments are
scheduled for April, and a decision is due by the end of June.
[cut discussion of other new court cases]