First Amendment Protection of Corporate Speech
Nike issued press releases, advertisements, and other publications defending its treatment of foreign workers. Some of Nike’s statements reached California consumers, including plaintiff Mark Kasky. Kasky sued under California’s unfair advertising and unfair competition laws, alleging that Nike’s statements were false and misleading. Nike moved to dismiss the lawsuit on First Amendment grounds. The trial court and the court of appeal allowed the dismissal, but the California Supreme Court reversed, holding that the statements were commercial speech because they served the purpose of promoting sales of Nike’s products. Nike argued that corporate statements on matters of public interest are not commercial speech, even if they could also influence consumers’ purchasing decisions, and therefore that its statements should be protected by the strict scrutiny standard applicable to content-based regulation of non-commercial speech under the First Amendment. Nevertheless, the California Supreme Court concluded that Nike’s statements were entitled to less constitutional protection, and that California could regulate or prohibit the speech if it were false or misleading.
The United States Supreme Court granted certiorari, and NELF joined the amicus brief of Pacific Legal Foundation. NELF and PLF argued that corporate speech, such as Nike’s statements in this case, frequently addresses issues of public concern beyond the mere selling of a product or service. The commercial speech doctrine has yielded highly confusing and unpredictable results that can chill protected speech. This doctrinal confusion is likely to continue, the brief suggested, as corporations develop increasingly innovated and nontraditional means of communicating positions on a wide range of public and business issues.
On June 26, 2003 the Court dismissed the writ of certiorari as “improvidently granted.” That dismissal left standing the California Supreme Court decision, with the likely result that Nike would face trial in California without First Amendment protection for its speech. A concurring opinion from Justice Stevens explained that it was inappropriate for the Court to take the case because the state court decision was not a final judgment; because neither party had Article III standing to invoke the jurisdiction of the federal courts; and because the First Amendment issues would benefit from a full, factual trial record rather than a review of mere unproven allegations. Justices Kennedy, Breyer, and O’Connor dissented from the dismissal. Earlier this month Nike agreed to settle the case by paying $1.5 million to a workers’ rights group.
Nike issued press releases, advertisements, and other publications defending its treatment of foreign workers. Some of Nike’s statements reached California consumers, including plaintiff Mark Kasky. Kasky sued under California’s unfair advertising and unfair competition laws, alleging that Nike’s statements were false and misleading. Nike moved to dismiss the lawsuit on First Amendment grounds. The trial court and the court of appeal allowed the dismissal, but the California Supreme Court reversed, holding that the statements were commercial speech because they served the purpose of promoting sales of Nike’s products. Nike argued that corporate statements on matters of public interest are not commercial speech, even if they could also influence consumers’ purchasing decisions, and therefore that its statements should be protected by the strict scrutiny standard applicable to content-based regulation of non-commercial speech under the First Amendment. Nevertheless, the California Supreme Court concluded that Nike’s statements were entitled to less constitutional protection, and that California could regulate or prohibit the speech if it were false or misleading.
The United States Supreme Court granted certiorari, and NELF joined the amicus brief of Pacific Legal Foundation. NELF and PLF argued that corporate speech, such as Nike’s statements in this case, frequently addresses issues of public concern beyond the mere selling of a product or service. The commercial speech doctrine has yielded highly confusing and unpredictable results that can chill protected speech. This doctrinal confusion is likely to continue, the brief suggested, as corporations develop increasingly innovated and nontraditional means of communicating positions on a wide range of public and business issues.
On June 26, 2003 the Court dismissed the writ of certiorari as “improvidently granted.” That dismissal left standing the California Supreme Court decision, with the likely result that Nike would face trial in California without First Amendment protection for its speech. A concurring opinion from Justice Stevens explained that it was inappropriate for the Court to take the case because the state court decision was not a final judgment; because neither party had Article III standing to invoke the jurisdiction of the federal courts; and because the First Amendment issues would benefit from a full, factual trial record rather than a review of mere unproven allegations. Justices Kennedy, Breyer, and O’Connor dissented from the dismissal. Earlier this month Nike agreed to settle the case by paying $1.5 million to a workers’ rights group.
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