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Week of the
Supremes, Day 4. Court Won't Rule on
Corporate Free Speech
By Brian Knowlton, International Herald
Tribune, June 26, 2003 WASHINGTON, June 26 — The Supreme Court declined today to
take up a case involving Nike, the big sportswear maker, that raised questions
on the limits to which corporations enjoy free-speech protections when they
defend themselves against public criticism. The justices voted, 6 to 3,
to dismiss Nike's
appeal of a California Supreme Court decision on technical grounds. The case raised "novel constitutional questions" but was not ready for the high
court's attention, wrote Justice John Paul Stevens. That will free a San
Francisco consumer activist to go ahead with a suit against the Oregon-based
company. The California court found last year that Nike, in
responding through an extensive public campaign to charges that its shoes were
made by underpaid and occasionally abused workers in Southeast Asia, was
engaged in commercial
speech — meant to sell its products — which enjoys minimal protections under the United States
Constitution. The dismissal allows Marc Kasky, the consumer activist, to
sue Nike on grounds that it engaged in false advertising when it denied the
worker-exploitation allegations via press releases, a letter to a newspaper
editor, and a 30-page pamphlet about Nike's labor practices. Nike held that its campaign amounted to noncommercial speech — not simple
advertising but part of an "intense debate on the pros and cons of
globalization,"
in the words of Laurence
H. Tribe,
Nike's lawyer and a law professor at Harvard. Such debate of pressing social
issues should be protected, Professor Tribe argued. Multinational corporations, facing rising public challenges
over their business and employment practices around the world, have followed
the Nike case closely.
Forty large media companies
joined the United
States Chamber of Commerce, the American Civil Liberties Union and other
organizations to support Nike. They argued, in amicus briefs, that a
curbing of their speech rights would prevent corporate executives from
addressing important public concerns about product safety, racial
discrimination or environmental matters, for example. Mr. Kasky's lawyers told the court in oral arguments in
April that their intent was not to prevent companies from speaking freely, but
simply to ensure
that they spoke accurately or were held responsible for failing to do so. The Bush administration also entered the case on Nike's
side, saying the California law wrongly gave plaintiffs like Mr. Kasky an
opening "to advance their own agendas" while interfering with what
should be the
government's work
in fighting deceptive advertising. By dismissing the case, the high court put off any further
examination of the sometimes blurry line between commercial and noncommercial
speech. This might be difficult to define, justices had hinted during the April
hearing. None of the Nike statements challenged by Mr. Kasky "were
advertising in the true sense," Justice Sandra Day O'Connor said then. Mr. Kasky had sued Nike in 1998 under a California law
against false advertising and unfair competition. He held that Nike had misled
the public about the conditions in which Chinese, Indonesian and Vietnamese
employees worked for company subcontractors. The case, once finally decided by a lower court, could later
be brought back to the high court to resolve the free-speech issues. The
California Supreme Court itself had noted that the suit was "still at a
preliminary stage." The United States Supreme Court dismissed Nike's appeal
through an
unsigned order,
but Justice Stevens explained some of the reasons in a separate opinion. It was difficult for the high court
"to serve the goal of judicial efficiency" by joining now in what
amounted to a review of "mere unproven allegations" about Nike, he
wrote. Justices O'Connor, Anthony Kennedy and Stephen Breyer
dissented. Justice Breyer, joined
by Justice O'Connor, wrote that the issue did appear legally mature for a
decision, saying, "The questions presented directly concern the freedom of
Americans to speak about public matters in public debate." The threat of
civil action such as Mr. Kasky took against Nike, he said, "can chill
speech." |
