BY DAN
KENNEDY
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Wednesday, September 17, 2003
Follow-up: Nike folds on
free-speech case. I think I'll move to California and sue Nike.
Why not? It worked for Marc Kasky.
Last Friday, lawyers for Kasky -- a
San Francisco-based antiglobalization activist -- and Nike
announced
a settlement to Kasky's
five-year-old suit, in which the sneaker-making giant had been
accused of making "false and misleading" statements about its labor
practices in the Third World (see "Don't
Quote Me," News and
Features, May 2).
Nike will give $1.5 million to the
Fair
Labor Association, which
will use the money to monitor workplace conditions around the world.
That's good.
What's bad is that Nike turned its
back on the First Amendment, just as it has been charged with turning
its back on its impoverished foreign workers.
Kasky, taking advantage of a
California law that allows any resident to act as an attorney
general, had accused Nike of what amounted to false advertising by
claiming in press releases, letters to the editor, op-eds, and on its
Web site that its offshore factories were veritable workers'
paradises. Kasky was able to file suit because Nike, though based in
Oregon, does business in California (and everywhere else).
Nike, in its defense, had contended
that those statements amounted to political, not commercial, speech,
and were thus constitutionally protected.
The California Supreme Court sided
with Kasky, and ruled that a lower court could conduct a trial on
Kasky's suit. Nike appealed to the US Supreme Court. But after
agreeing to hear the case, the Court declined to issue a ruling last
June, apparently on the grounds that the case was not yet far enough
along. Friday's settlement prevents the suit from ever going to
trial.
What's got me ready to call an
enterprising lawyer is a quote from one of Nike's lawyers, a guy
named Walter Dellinger, that appeared in
the Los Angeles Times
on Saturday: "As much as Nike cared about First Amendment issues, we
realized there was no way to get the First Amendment issue back to
the US Supreme Court unless Nike were to lose at trial and all the
way up the ladder, which is not a very attractive or likely
prospect."
Okay, here's my case: Nike is
making statements about how much it cares about the First Amendment
in order to persuade me that it's a warm, fuzzy company from which I
should buy running shoes. Dellinger's quote, therefore, amounts to
commercial speech -- and it's "false and misleading," since Nike
wouldn't have settled if it really cared about freedom of speech. See
you in court!
If you think that sounds
ridiculous, you're right. Yet it is exactly what Kasky argued
in terms of Nike's statements about its treatment of Third World
workers. And now the precedent established by the California Supreme
Court stands -- at least in California. But since companies will act
in such a way so as to avoid getting sued in California, the effect
will be felt nationwide.
This case was a mess from the
beginning. The problem was the gag reflex that kicks in at the notion
of giant corporations' being allowed to lie about how they treat
workers at their overseas subsidiaries. Of course, Nike never said it
had lied, but its defense amounted to asserting a right to lie
-- which is, in fact, protected by the First Amendment as long as the
lie doesn't stray into libel.
The ACLU
and a raft of media companies lined up on Nike's side. On Kasky's
were groups such as ReclaimDemocracy.org,
the Sierra
Club, and the Boston-based
National
Voting Rights Institute,
which argued in an amicus brief that corporations, as artificial
entities subject to government regulation, should not enjoy the same
constitutional protections as a person.
Think Nike's surrender won't have
an effect? Think again. According to an account in
Saturday's New York Times,
Nike has already stopped making public its annual "corporate
responsibility report," and is planning to put some limits on its
public statements as well. After all, it wouldn't do to have a bunch
of lawsuit-happy Californians poking around Nike's Web site and
arguing over the definition of "misleading."
But as the ACLU likes to say, "The
best way to counter obnoxious speech is with more speech." Let Nike
have its say, then scrutinize its statements and publicize the
results.
Except that you can't do it that
way. Not anymore.
Get me a lawyer!
posted at 11:21 AM |
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MEDIA LOG ARCHIVES
Dan Kennedy is senior writer and media critic for the Boston Phoenix.
