Just sue it: Nike's case at the Supreme Court

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May 2003

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Just sue it:
Nike makes a case for "commercial speech" at the Supreme Court
To the victor goes the spoils? The trouble with Iraqi oil reserves

Just sue it:
Nike makes a case for "commercial speech" at the Supreme Court
"The structure of public discourse is at stake," Professor Robert Post of the University of California at Berkeley told the New York Times before the Supreme Court of the United States heard arguments on April 23rd in the case of Nike Inc. v. Kasky. The debate centers on the First Amendment as it applies to commercial speech.

Marc Kasky, of San Francisco, filed suit against Nike under a unique California law that allows a citizen, acting as a "private attorney general," to sue a corporation for unfair trade practices. Kasky's suit claims that Nike made false and misleading statements in its communications with consumers about Nike's global trade and employment practices, adding up to false advertising.

Nike says that its statements are protected by the First Amendment because they came in the context of a political debate about the pro's and con's of globalization, a debate it says it has every right to participate in. Lawyers for Kasky submitted that while the Nike statements were not in "advertising format"—but rather letters to the editor, op-ed columns, and press releases—they still constitute commercial speech because consumers rely on such data to make purchasing decisions.

Essentially, the issues boil down to the definition of commercial speech, which is not protected by the First Amendment to the extent that noncommercial speech is. In the past, the Supreme Court has defined commercial speech as communication that "does no more than propose a commercial transaction." But the California Supreme Court affirmed that Nike's statements constitute "commercial speech," because it said that Nike's statements were "likely to influence consumers in their commercial decisions."

Currently at issue is whether a trial will take place at all. California's court upheld Kasky's right to sue based on its definition of commercial speech. The U.S. Supreme Court will make the ultimate decision. Eighteen states filed amicus briefs on behalf of Kasky, along with many anti-globalization groups. Filers on Nike's side included some strange bedfellows, such as the Bush administration, A.F.L.-C.I.O., the American Civil Liberties Union, and the New York Times along with 40 other news media organizations.—Tara Dix

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