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Justices to review Nike commercial speech decision

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Justices to review Nike commercial speech decision

  • The Court has agreed to consider a case in which Nike is being sued under a California unfair trade practice law because its discussions of labor practices were deemed “commercial speech.”

Jan. 14, 2003 — The U.S. Supreme Court will decide whether a corporation’s discussion of issues is “commercial speech” with severely limited First Amendment protections after it accepted review on Jan. 10 of a case involving the Nike sports apparel company’s discussions of its labor practices.

The California Supreme Court held in May that Nike’s statements in defense of the working conditions in its overseas factories could constitute business fraud under a state law if the statements were misleading. Such laws rarely survive constitutional scrutiny when they apply to political speech, but commercial speech has been given lesser protection by courts.

The case was brought by a private individual who sued the company over what he felt were false and misleading statements in its press releases, op-ed articles and Web site. He argued before the state Supreme Court that the speech was purely commercial because the statements were made simply “for the commercial purpose of selling shoes.” Nike argued that its statements were part of an ongoing worldwide debate on international labor practices, and thus deserved the protections of political speech.

A number of media organizations, including the Reporters Committee for Freedom of the Press, filed a brief encouraging the U.S. Supreme Court to accept review, arguing that removing any protections from speech by companies engaged in public controversies will inhibit the news media’s ability to cover these topics. The media parties argued that the state court’s expansion of the definition of what constitutes commercial speech is “staggering,” pointing out that the definition would specifically include statements made in response to reporters’ questions.

The court did not announce when it would hear arguments.

(Nike Inc. v. Kasky; Media amici counsel: Bruce E.H. Johnson, Davis Wright Tremaine LLP, Seattle, Wash.) GL

© 2003 The Reporters Committee for Freedom of the Press

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