WASHINGTON — How much free-speech protection companies have when fending off sweatshop allegations or other criticism will be decided by the Supreme Court in a case involving Nike, which the High Court accepted Friday.
This story first appeared in the January 13, 2003 issue of WWD. Subscribe Today.
At issue is the muddy legal area of commercial speech and whether false or misleading information from a company has First Amendment protections. The case stems from Nike being sued by a California environmental activist over the company’s media campaign against accusations of poor treatment and sweatshop wages at contractors in Asia producing sneakers and sportswear.
The activist, Marc Kasky, alleges Nike lied about contractor conditions in 1997 in newspaper opinion articles and in one advertisement that ran nationally. A divided California Supreme Court sided with Kasky in ruling that Nike could be sued under a state consumer-protection law.
The case did not go to trial because Nike, which defends the accuracy of its antisweatshop campaign, appealed to the U.S. Supreme Court, citing a potential chilling effect for commercial speech if the case went to trial.
To defend its position, Nike has hired top legal guns Laurence Tribe of Harvard University and Walter Dellinger, a top Clinton administration constitutional adviser who argued cases before the Supreme Court in 1996-97 as the government’s Solicitor General.
The case, which is being closely watched by a myriad of corporations, is expected to be argued sometime this spring with a decision following this summer.
C. Thomas Dienes, a First Amendment law professor at George Washington University, called the case “extremely important.” He said the court in recent years has been giving more protections to commercial speech, but hasn’t yet ruled in matters involving public relations campaigns.
Dienes said the crux of the issue is whether a p.r. campaign is considered noncommercial speech protected by the First Amendment or simply commercial speech in the realm of advertising.
Advertising speech is closely regulated by federal and state governments, and prohibits false and misleading statements intended to confuse consumers. However, in noncommercial free-speech cases covered by the First Amendment, those who sue have to prove either negligence or actual malice.