Organic Consumers Association

January 10, 2003

Supreme Court to Hear Arguments in Nike Case


WASHINGTON (AP) -- Sneaker maker Nike Inc. won the chance Friday to fight for its image at the Supreme Court. The court said it will use an appeal by the popular apparel and tennis shoe company to decide how much constitutional protection company executives have when they fend off allegations that they run sweatshops or make dangerous products.

Although the case addresses a relatively mundane free-speech issue, it provides a revealing look at the public relations machines behind big companies -- and may determine what people can do when they think they've been misled by corporate spin.

For more than two decades the Supreme Court has struggled to define commercial speech, which gets less protection under the First Amendment than other types of speech like political expression. The justices have sent conflicting signals in a series of cases. A huge coalition of companies, public relations executives and newspapers and television stations had urged the court to try again to straighten out the confusion. The justices will hear arguments this spring in the latest case.

The court has already debated a dozen commercial speech cases in the past decade. The case arises from a campaign by Nike to defend its wages, treatment of workers and health and safety conditions at Asian plants where workers make tennis shoes and athletic wear. The company was sued by a San Francisco activist who contends the company lied about how much the employees earned and how they were treated. A sharply split California Supreme Court ruled that the company could be sued under a state consumer protection law because its defense campaign was commercial speech. The case has not gone to trial. The high court will decide if it will, and if others like it can follow.

Some 30 news organizations, including ABC, CBS, NBC and top newspaper chains, 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.

The U.S. Chamber of Commerce, represented by former special prosecutor Kenneth Starr, said the California test is ``breathtakingly broad and deeply menacing to our system of free expression'' He said the court should give companies more protection. ``A contrary conclusion would leave First Amendment freedoms hanging by too slender a thread,'' Starr wrote.

Nonsense, argued lawyer Paul Hoeber, representing the California man who sued. ``Rather than chilling protected speech, the decision will deter false or misleading commercial speech,'' he told justices in filings. Hoeber 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. ``These documents were devoted almost entirely to praising and promoting Nike and its manufacturing practices and were replete with references to the athletic shoes it was trying to sell,'' wrote Hoeber, whose client is Marc Kasky. 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.

They argued that if the court doesn't intervene, more companies will be sued for things said in public debate. ``It is this ongoing threat, this Sword of Damocles, that works a forbidden chill of protected speech as long as this court permits it to hang,'' they wrote. In commercial speech cases, there is no First Amendment protection if it can be proved that information was false or misleading. In other types of free-speech cases, people who file suit must prove either negligence or actual malice. Companies like Microsoft Corp., ExxonMobil Corp., and Pfizer Inc. also filed arguments on behalf of the Oregon-based Nike. The case is Nike Inc. v. Kasky, 02-575. ------

On the Net: Supreme Court: Nike

Home | News | Organics | GE Food | Health | Environment | Food Safety | Fair Trade | Peace | Farm Issues | Politics
Español | Campaigns | Buying Guide | Press | Search | Donate | About Us | Contact Us

Organic Consumers Association - 6771 South Silver Hill Drive, Finland MN 55603
E-mail: Staff · Activist or Media Inquiries: 218-226-4164 · Fax: 218-353-7652
Please support our work. Send a tax-deductible donation to the OCA

Fair Use Notice: The material on this site is provided for educational and informational purposes. It may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. It is being made available in an effort to advance the understanding of scientific, environmental, economic, social justice and human rights issues etc. It is believed that this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have an interest in using the included information for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner. The information on this site does not constitute legal or technical advice.