BY DAN
KENNEDY
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Wednesday, July 09, 2003
The dog that didn't bark.
I'd missed this until I saw Robert
Samuelson's column in
today's Washington Post. But the US Supreme Court declined to
rule on a free-speech case involving Nike and an anti-corporate
activist from San Francisco named Marc Kasky.
Kasky had sued Nike, charging that
the company lied in press releases, letters to the editor, and on its
website about the working conditions of Nike employees in the Third
World. More to the point, Kasky asserted that Nike's statements
constituted commercial speech under California law, as subject to
regulation for truthfulness as ads about the performance of its
running shoes. While not conceding having made any false statements,
Nike tried to get the case thrown out on First Amendment
grounds.
I wrote about the case recently
("Don't
Quote Me," May 2), mainly
because I was intrigued by the involvement of the Boston-based
National Voting Rights Institute, which took the position that the
First Amendment should protect individuals, not corporations. It's an
interesting argument, though I think speech restrictions are never
worth whatever gain its proponents believe there is to be had in
terms of leveling the playing field.
One tidbit I picked up that I
didn't use now looks prescient. Stephen Barnett, a professor
at the Boalt Hall School of Law, at the University of California at
Berkeley, told me that though he was hoping the Court would rule
decisively in Nike's favor, his expectation was that it would punt
because the case had not yet gone to trial.
"My sense is that in the end it
will not be a great case, and the Court will decide very little,"
Barnett told me. "The way things work now, the Court has this rule
requiring final decisions, meaning that the case only comes up after
a final judgment, rather than an interlocutory decision like this
one."
Barnett called it exactly
right.
posted at 12:27 PM |
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Dan Kennedy is senior writer and media critic for the Boston Phoenix.
