WASHINGTON — The U.S. Supreme Court today is set to hear arguments in a case involving Nike and whether its anti-sweatshop claims are protected by the First Amendment or violate a California truth-in-advertising law.
This story first appeared in the April 23, 2003 issue of WWD. Subscribe Today.
A decision in the case is expected this summer and the outcome will be closely examined by businesses, Madison Avenue, newspapers and public relations firms. At issue is whether First Amendment protections, which courts have largely said are reserved for citizens, can be extended to corporations.
Anti-Nike activists are planning protests on the steps of the court with a 10-foot Nike sneaker as a backdrop that organizers say “will stomp on the U.S. Constitution to symbolize the Nike Corp.’s attempt to subvert the Bill of Rights for its own profit.” Similar protests are slated to take place in front of Niketown in San Francisco’s Union Square.
Nike, after the justices hear the case, will also move to the court’s steps to show its side of the issue with Harvard professor and lead counsel Laurence Tribe.
The case against Nike actually began as a consumer challenge about the truthfulness of its public relations campaign regarding contractor conditions in Asia.
Marc Kasky, a San Francisco activist, said he decided to sue Nike after reading in The New York Times about a 1997 Ernst & Young audit, commissioned by Nike, that found employees at a large Vietnam sneaker contractor were exposed to cancer-causing toulene and suffered a high rate of respiratory problems. The audit was leaked to reporters.
Under California’s truth-in-advertising law, if one lies or misleads by omission, it constitutes a violation. Nike published an advertorial saying it was committed to strong human rights in Southeast Asia. Then came the E&Y reports, which is the basis for Kasky’s suit.
Both sides in the case readily agree that if Nike, as a corporate entity or its officers, made the same claims as regular citizens, then the First Amendment’s broad speech protections — even for false statements in many cases — would apply and there would be no case.