Five years ago, Californian Marc Kasky brought a lawsuit against Nike under a California statute that permits citizens to file unfair trade charges as “private attorney generals.” Kasky charges that Nike repeatedly and intentionally misrepresented the working conditions and pay scales in its third-world facilities.
The question that the U.S. Supreme Court will hear next Wednesday will likely serve to further refine the constitutional doctrine defining commercial speech. The most recent trend in the Court has been to broadly define commercial speech as that which “does no more than propose a commercial transaction.” The interpretation has been that such speech is protected at a lower level than that of utterances of an individual, and only so long as it is not false or misleading.
In an article this morning, the New York Times—itself a party of the case, having, along with 40 other media organizations, filed a legal brief in support of Nike—identifies two questions upon which the Court will focus:
“First, did the California Supreme Court properly characterize Nike’s challenged statements as commercial speech, for which liability could attach without the need to show deliberate or reckless falsehood?
“Second, even if the speech was properly labeled commercial—a characterization Nike disputes—does the First Amendment permit California to impose liability at the behest of a ?private attorney general’ without evidence that he or any other California consumer relied on the statements or was harmed by them?”
Actually, there are two much simpler questions that the Court must decide that are orders of magnitude more important:
First, can any utterance by a director or officer of a corporation, speaking in a capacity as corporate representative, be anything other than commercial speech.
Second, should corporations enjoy the same constitutional rights and protections as individual citizens.
The answer to both, seemingly, is of course not.
Related Links:
- Reclaim Democracy’s briefs in favor of Kasky
- Nike v. Kasky: Nike Corporation claims a constitutional right to lie
- Nike free-speech claim has wide implications
- Reclaim Democracy’s Corporate Personhood overview
Disclaimer: My sister is an employee of Nike Corporation.
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