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Supreme Court considers Nike commercial speech challenge

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Supreme Court considers Nike commercial speech challenge

  • Questioning on procedural issues detracted from free-speech issue at oral arguments.

April 23, 2003 — The U.S. Supreme Court heard oral arguments today in a case, involving the Nike sports apparel company, that could have important implications for the free-speech rights of businesses.

Attorneys for Nike asked the Court to find that statements made by the company in the mid-1990s about its labor practices deserved full First Amendment protection and could not be the subject of a false advertising lawsuit.

Lawyers representing plaintiff Marc Kasky, a consumer advocate who claims the company misled the public about working conditions abroad, said Nike’s statements fell into a category of lesser-protected “commercial speech.”

The California Supreme Court held in May 2002 that Nike’s statements could constitute business fraud under a state law if the statements were misleading. The court’s decision treated Nike’s statements, made in press releases, pamphlets and on the company’s Web site, as commercial speech, rather than the more widely protected form of political speech.

A number of media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in the case, asking the Court to overrule the California court’s decision. The media parties argued that removing protections from speech by companies engaged in public controversies will inhibit the news media’s ability to cover these topics.

The media amici said characterizing Nike’s statements as “commercial speech” would produce a “chilling effect” that would have dire consequences for the public’s right to know.

Much of today’s debate centered not on the First Amendment issue at the heart of the case, but rather on procedural considerations concerning the Court’s ability to hear a case that has not gone to trial and the plaintiff’s standing to sue for false advertising.

Several of the justices were particularly interested in the validity of a provision in California’s false advertising statute that allows any private individual to bring suit as a “private attorney general” acting on behalf of the general public.

Yet at least a few of the Justices voiced concern that if they reached the merits of the case, they might have to come up with a new definition of what constitutes “commercial speech.”

“I don’t think anyone would say defining commercial speech is easy,” conceded Paul R. Hoeber, Kasky’s attorney.

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

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