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
     --------------
     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.

     ------------------------------------------------------------------
     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.

     ------------------------------------------------------------------
     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]