ReclaimDemocracy.org, Other Public Interest Groups Line Up Against Corporate Giants in Supreme Court

April 9, 2003--Several public interest groups and other parties filed amicus curiae (friend of the court) briefs last week on the side of Marc Kasky in the pending case of Nike v. Kasky, including ourselves. We are joined by non-profit organizations such as Public Citizen, Global Exchange and the Sierra Club; Domini Social Investments, a group promoting business responsibility; four members of U.S. Congress (initiated by Ohio Representative Dennis Kucinich); and the State of California, among others, in filing.

These briefs argue against Nike Inc.'s claim that it should be immune from California consumer protection laws that bar false marketing claims. Nike's lawyers claim this immunity based on the corporation possessing constitutionally protected "free speech." They also deny that the Nike public relations campaign accused of deliberate deception in the case even should be considered "commercial speech" (the Court never has protected false commercial speech).

Our brief, written by the The National Voting Rights Institute on our behalf, directly challenges the assumption of corporations enjoying constitutional rights in any form. We suggest that the court overturn the judicial creation of corporate political rights last promoted by the Court's 1978 First National Bank of Boston v. Bellotti decision.

The alliance of public interest groups is opposed by a plethora of transnational corporations and corporate front groups filing briefs on behalf of the Nike Corporation (see right hand column at ReclaimDemocracy.org/nike for a full listing). Disturbingly, the American Civil Liberties Union joins the corporate interests in arguing for corporations to enjoy political equality with human beings (read the ACLU's explanation, with our response).

In addition to presenting the Supreme Court with multi-pronged legal attacks on the usurpation of human rights by corporations, ReclaimDemocracy.org will be using the Supreme Court oral arguments (April 23) as an opportunity to spark public awareness of this critical issue--stay tuned for more.

Here is a rundown of several amicus briefs filed on behalf of Marc Kasky, with links to the briefs where available. Click on headers to read briefs. These briefs are large pdf files that may take a minute to load for dial-up users.

Marc Kasky's brief
Written by Philip Neumark for the law firm of Bushnell, Caplan and Fielding.

National Voting Rights Institute / ReclaimDemocracy.org
Brief written by Lisa Danetz of NVRI, with assistance from Carl Mayer, Doug Hammerstrom, and the staff of NVRI and ReclaimDemocracy.org.

Summary: The claim that corporations possess a right to intentionally deceive the public has no basis in the U.S. Constitution. Incorporation is a privilege granted by the people's representatives in state governments, and corporations must remain subordinate to our democratic institutions. The discredited judicial creations of "corporate personhood" and corporate "political rights" should be unequivocally rejected by the Court.

Domini Social Investments
The brief is written by Cynthia Williams of the University of Illinois College of Law, Adam Kanzer of Domini Social Investments and Michael R. Siebecker of Hunter College.

Summary: Nike v. Kasky is a critical case for all investment firms that practice socially responsible investing. Granting full First Amendment protection to corporate "speech" would undercut the SEC's disclosure and reporting requirements and would make it easier for companies to evade antifraud regulations. Such a precedent would be especially damaging at a time when restoring investor confidence in the markets is crucial.

U.S. Representatives Dennis Kucinich, Corrine Brown, Bob Filner and Bernard Sanders
Brief written by University of Southern California Law School professor Erwin Chemerinsky and Loyola Law School professor Catherine Fisk

Summary: False factual statements intended to sell products are commercial speech and not protected by the First Amendment. Nike was speaking not to influence a political debate, but to sell its products. If accepted, Nike's claims would endanger a vast array of consumer protection laws: cosmetics companies could lie about whether they do animal testing; tuna companies could lie about whether they catch tuna in a dolphin safe way; manufacturers could lie about whether their products were made by union labor or in the USA.

The Sierra Club
Brief written by Kristen Henry, Denise Hoffner-Brodsky, Thomas O. McGarity and Tamara R. Piety

Summary: Details the consequences of granting corporations the right to lie with impunity to the environmental protection community. If Nike's argumernt were to be accepted, corporations could then claim a constitutionally protected "right" to make false or deceptive environmental claims. This would make "Green Washing" campaigns legal and would injure consumers, honest business people and the health of citizens and our environment. Truthful information on corporate behavior is essential to ensuring corporate accountability and environmental justice as well as to ensure the integrity of the marketplace.

Public Citizen
Brief written by Alan Morrison, Allison Zieve, Scott Nelson, Marka Peterson, and David Vladeck.

Summary: When corporations seek to use false or misleading statements about social issues to sell their products, they are just as subject to regulation or consumer lawsuits as when they misrepresent more conventional features of their products such as price or quality. Nike's argument to the contrary is particularly ironic, for Nike's advertising and promotion have for years focused on image, not product characteristics. Also, the Court's jurisdiction over this case is limited at this stage of litigation and many of the issues discussed in Nike's brief are not properly before the Court.

Not filed with the Supreme Court, but partially incorporated into our brief is this provocative argument by Carl Mayer, which also is recommended to those seriously researching this case/issue. As in our brief, Mayer vigorously opposes the judicial personification of corporations, but he goes further to argue that the Court merely needs to clarify its rejection of corporate personhood, inherent in the 1990 Austin v. Michigan Chamber of Commerce decision.

Mayer is the author of Personalizing the Impersonal: Corporations and the Bill of Rights, perhaps the most exhaustive legal exploration of corporate personhood (Hastings Law Journal, March, 1990).

Additional briefs: The Campaign Legal Center, Consumer Attorneys of California, the National Association of Consumer Advocates, Global Exchange and the State of California (endorsed by 17 state attorney generals) also filed amicus briefs on Marc Kasky's behalf. The Supreme Court docket contains a complete listing of all briefs filed for either party or neither party.

For more much more information on Nike v. Kasky, including a large collection of the amicus briefs filed on Nike Inc.'s behalf, see ReclaimDemocracy.org/nike.