NCPA - National Center for Policy Analysis

Will High Court Take Up Nike's Free Speech Case?

January 10, 2003

The U.S. Supreme Court could announce today whether it will take up a case involving Nike Inc.'s First Amendment rights. At issue is whether certain statements made by the athletic footwear company constitute "commercial speech" or warrant protection under the Freedom of Speech clause.

  • The case was launched by a California activist who charged that certain company assertions -- including one that Nike paid, "on average, double the minimum wage as defined in countries where its products are produced" and another that its workers "are protected from physical and sexual abuse" -- amounted to "false advertising."
  • Nike's argument that its statements are protected by the First Amendment was first upheld by a California trial court, and later a state appellate court -- before being reversed by a split California Supreme Court.
  • That court ruled the company's efforts to defend itself amounted to "commercial speech" -- which applies when a company seeks "to promote and defend its sales and profits and makes factual representations about its own products or its own operations," in which case it must "speak truthfully."
  • Many parties view the California ruling as tough to enforce and argue it would have "a chilling effect" on all statements by corporate executives.

First Amendment lawyers expect the Supreme Court to take up the case for two reasons. Over the past few years, the Court generally moved to give commercial speech First Amendment protections. Plus, the case is seen as a critical opportunity to clarify the doctrine of commercial speech, which some critics call "chaotic."

Source: Maureen Tkacik, "Just How Far Does First Amendment Protection Go? High Court May Decide to Hear Whether Nike's PR Statements to Media, Others Are Protected," Wall Street Journal, January 10, 2003.

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