ABFFE and Media Groups Support Nike's First Amendment Rights

On Monday, December 16, the U.S. Supreme Court will announce whether it will hear a case that a group of prominent media and free expression organizations, including the American Booksellers Foundation for Free Expression (ABFFE), believe has serious First Amendment implications.

This past October, sports apparel giant Nike filed a petition asking the U.S. Supreme Court to review a California Supreme Court decision holding that Nike engaged in false advertising by launching a public relations campaign to debate charges levied against it regarding its labor practices in Asia. In mid-November, media groups, fearing the California ruling could have a chilling effect on public debate on corporate conduct, filed an amicus brief in support of Nike's petition to the U.S. Supreme Court.

"The threat to the First Amendment is clear," said Chris Finan, president of ABFFE. "If businesses cannot respond to charges that have been made against them without worrying about being punished by the government for false statements, they will make only the most cursory replies to public criticism. Our position is that the public interest is best served by robust debate."

In 1996, Nike was accused of allegedly violating fair labor practices in Southeast Asia. Nike rebutted the charges by writing opinion pieces, which denied the news reports about its foreign working conditions and discussed the average wage of Nike's workers and health and safety issues in Southeast Asia, as reported by ESPN.com.

Marc Kasky, a California-based environmental activist, charged the sports apparel giant with violating the Business and Professions Code of California Law. He argued that the company's public relations campaign regarding working conditions in its Asian factories was the same thing as false advertising under the state law. Kasky said that, in the course of its campaign, Nike made at least six statements that it knew to be false and asked the court to order the corporation to undertake a court-approved public information campaign.

Two lower courts ruled in Nike's favor. However, in May 2002, the California Supreme Court overturned the rulings by a vote of 4-3 and cited U.S. Supreme Court decisions that approved broader limits on "commercial" speech. In its ruling, the court defined speech as commercial if it is made by someone engaged in commerce, is likely to reach potential buyers or customers, and involves descriptions of "business operations," employment or manufacturing policies, or other attempts to enhance the image of a company's product.

The court also ruled that Nike could be sued for consumer protection violations based on answers given to reporters' questions, press releases, op-ed pieces, or "editorial advertisements."

In October, Nike petitioned the U.S. Supreme Court to review the California court ruling and a month later media and free expression groups filed an amicus brief. At the time, Alan Caplan, Marc Kasky's attorney, told ESPN.com, "The fact that Nike thinks that this is about the national debate of free speech is not only wrong, but it's arrogant. This is only about what Nike was stating about their products and the misrepresentations they made about their shoes."

However, Theresa Chmara, counsel for ABFFE, told BTW in a recent interview that, if the California Supreme Court's decision is held, it would deprive the public of important information. "Corporations will be afraid to speak, given how broadly defined [the ruling] is," she said. "When one side is reluctant to speak it stems the flow of debate."

Additionally, such a situation would hinder the media's ability to report on important issues regarding corporate America, the groups argue in their amicus brief. "If the decision … is not reversed, business representatives will be deterred from speaking to the press about these and other public issues…. When a business practice becomes a matter of public concern, the media scrutinize corporate speech and typically place potentially misleading statements into context."

The U.S. Supreme Court will meet Friday, December 13, to decide whether it will hear the case. Four of the nine judges must agree to hear the case. The court will announce its decision the following Monday.

The groups that filed the amicus brief are: ABC, Inc.; ABFFE; the Association of American Publishers; Belo Corporation; Bloomberg L.P.; California First Amendment Coalition; California Newspaper Publishers Association; CBS Broadcasting, Inc.; Cable News Network; Copley Press, Inc.; Forbes, Inc.; Fox Entertainment Group, Inc.; Hearst Corporation; Magazine Publishers of America, Inc.; McClatchy Company; National Association of Broadcasters; National Broadcasting Company, Inc.; New York Times Company; Newspaper Association of America; Newsweek, Inc.; PR Newswire Association; Reed Elsevier, Inc.; Reporters Committee for Freedom of the Press; Silha Center for the Study of Media Ethics and Law at the University of Minnesota; Society of Professional Journalists; SRIMedia; TIME Inc.; Tribune Company; and Washington Post Company. -- Dave Grogan