High Court Hears Arguments in Case that Tests Limits on Free Speech for Companies

April 23, 2003 12:00 am

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NEW YORK - In a closely watched free speech case being argued before the Supreme Court today, the American Civil Liberties Union is urging the Justices to hold that statements by the Nike Corporation responding to accusations of unfair labor practices should not be treated as commercial speech.

"There is an important debate that needs to take place about globalization and the treatment of overseas workers, but that debate should take place in the public arena and not in a courtroom," said Steven R. Shapiro, national Legal Director of the ACLU.

The ACLU's "friend of the court" brief took no position on the accuracy of Nike's statements concerning its overseas labor practices. But the ACLU argued that any dispute over Nike's statements should be resolved through public debate rather than through a lawsuit.

At issue is a lawsuit filed by California resident Marc Kasky, who charged Nike with violating state laws barring false advertising and unfair competition. Kasky claimed that when Nike responded to allegations of sweatshop conditions in its overseas factories, the company did not tell the truth in statements made in press releases, correspondence and a letter to the editor responding to articles by New York Times columnist Bob Herbert.

The California Supreme Court upheld Kasky's claim that the statements are commercial speech and can be challenged under the state's false advertising statutes.

"The First Amendment anticipates that the public will filter information about public issues from unscrupulous salesmen, politicians and pundits, and decide which 'truths' to accept. When government reduces a debate to one side only, the public is the loser," said Ann Brick, a staff attorney with the ACLU of Northern California, which filed a brief before the California Supreme Court. The Northern California ACLU joined in today's "friend of the court" brief submitted to the U.S. Supreme Court.

If Kasky wins, Brick said, Nike will be discouraged from discussing sweatshop labor on PBS or in the newspaper for fear of legal action. And the speech of corporations involved in other public controversies, from labor disputes to abortion technologies to affirmative action, may similarly be chilled.

The government's interest in regulating product advertising "does not extend to the broader goal of suppressing all corporate speech or all speech having some commercial aspect," the ACLU said in its legal brief, noting that the Supreme Court has struck down several broad bans on commercial speech, each of which served ends unrelated to consumer protection.

An array of First Amendment advocates, including American Booksellers Foundation for Freedom of Expression, California First Amendment Coalition, The New York Times Company, Newspaper Association of America, Reporters Committee for Freedom of the Press, Society of Professional Journalists and The Washington Post Company have spoken up in defense of the position that Nike's statements should not be treated as commercial speech.

Even New York Times columnist Bob Herbert of the has weighed in. "As much as it pains me to say it," Herbert wrote in a column, "I am not in favor of stifling the speech of the loud and obnoxious and terminally exploitative Nike Corporation. The very same First Amendment that allows me to make these assertions must also allow Nike to defend itself."

The ACLU's brief was authored by national ACLU attorney Mark Lopez, Shapiro, and Brick of the ACLU of Northern California. It is online at /node/36217

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