NCPA - National Center for Policy Analysis

California Court Turns First Amendment on Its Head

May 14, 2002

Legal specialists are aghast at a decision by the California Supreme Court that they say denied the Nike sports shoe company its free speech rights under the First Amendment.

Here's what happened:

  • In a 1996 CBS "48 Hours" special, Nike was denounced for working conditions at its factories in Southeast Asia -- which was followed by newspaper reports also attacking Nike.
  • Nike changed some of its practices and defended itself by taking out ads, writing letters to the editor and issuing press releases.
  • An environmental activist sued Nike under California's Unfair Competition and False Advertising Law -- claiming that in defending itself, Nike employed an "unfair business practice."
  • The California Supreme Court ruled that Nike's statements were "commercial speech" subject to California's unfair competition law, and that the suit can proceed.

Free-speech supporters worry that the decision will shut businesses out of public debate on issues that directly affect them. Ann Brick of the American Civil Liberties Union of Northern California comments that "it's up to the people, not the government, to decide who's right or wrong in a public debate on an important issue like this."

Nike plans to appeal all the way to the U.S. Supreme Court -- which has shown more respect for commercial speech, experts report.

Source: Editorial, "Swoosh Goes the First Amendment," Wall Street Journal, May 1, 2002.


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