Free Speech for Nike

Criticize a person's conduct, and he or she has a free speech right to respond aggressively. Does that right extend to a corporation? Not according to the California Supreme Court. Late last month, that court declined to reconsider an earlier ruling permitting Nike to be sued over statements the company made during a public relations campaign. The state high court had held that statements by Nike in response to criticism of its overseas business practices were commercial speech that, if false, could subject the company to liability under state law. If allowed to stand, the California court's ruling would have profoundly negative consequences for open debate. That fact alone underscores the importance of Nike's appeal to the U.S. Supreme Court and the major showdown that is likely to occur there this coming term.

 

The case arose out of the torrent of criticism Nike suffered over labor conditions at the Asian factories where contractors make its famed sneakers. Nike officials responded to the negative publicity by writing a series of letters to newspaper editors, issuing press releases, corresponding with university presidents and sports directors in defense of its record, and buying newspaper advertising. All of this seems like exactly the sort of speech that the First Amendment was meant to protect. Yet California law allows anyone to sue a company engaged in false advertising and unfair business practices. A man named Marc Kasky did just that, contending that Nike's claims during its campaign were not political speech but false and deceptive commercial speech intended to sell its product. The California court, without deciding whether Nike's statements were false, agreed by a 4 to 3 vote that the state's consumer laws covered the company's media campaign.

This standard is dangerous. Factual errors are part of any robust back-and-forth and do not generally nullify the constitutional protection afforded to speech. That must be as true of Nike as it is of its critics. As one of the dissenting justices put it, "While Nike's critics have taken full advantage of their right to 'uninhibited, robust, and wide-open' debate, the same cannot be said of Nike, the object of their ire. . . . Full speech protection for one side and strict liability for the other will hardly promote vigorous and meaningful debate."

Nor does the fact that product advertising may be regulated mean that all corporate speech is different from other speech. Nike's efforts to sell shoes simply aren't in the same category as its efforts to deny publicly that it is violating the basic rights of workers. Drawing the precise line between a sales effort and actions to improve the climate for sales by talking to the public may be a vexing problem. But Nike's campaign was not close to any reasonable line. The purpose of its communications was not merely to sell shoes but to change minds. And the protection of efforts to change minds is the very essence of free speech.

Under the California court's standard, many of the letters this page receives every day would be grist for lawsuits -- not against The Post, but against the companies whose representatives sent the letters. That cannot be right. The Supreme Court should clarify that it isn't.

© 2002 The Washington Post Company

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