Nike Taking Free Speech Case to U.S. Supreme Court
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Nike Taking Free Speech Case to U.S. Supreme Court

Nike will ask the United States Supreme Court to review a California court’s decision that the company’s attempts to defend itself against charges relating to its use of low-paid workers in Asia were not protected by the First Amendment.

Paul Holmes

BEAVERTON, August 5—Nike will ask the United States Supreme Court to review a California court’s decision that the company’s attempts to defend itself against charges relating to its use of low-paid workers in Asia were not protected by the First Amendment. The decision came after the California Supreme Court rejected a petition asking it to reconsider the ruling, handed down in May.
 
The ruling dismayed not only Nike but also the public relations community, which is concerned that press releases dealing with controversial environmental and political issues could now be regarded as commercial speech, which is not covered by the First Amendment. It also surprised civil libertarians, and the American Civil Liberties Union has been a strong supporter of Nike’s case.
 
The company has retained Harvard University’s noted Constitutional scholar and noted Supreme Court advocate, Laurence Tribe, and former acting solicitor general Walter Dellinger, head of the Supreme Court practice at O'Melveny & Myers to lead its appeal effort.
 
“This decision will have far reaching implications not just in California, but across the country and around the world," said Tribe. “This decision is a chilling conversation-stopper for any business or other organization whose public communications might reach the California market—and that covers virtually every entity that sells any product or service.  The decision deputizes any California citizen to drag a business into court and bring it to its knees unless it persuades a jury that everything it said was error-free and omitted nothing.”
 
On May 2, the California Supreme Court, without addressing the truth or falsity of any of Nike’s statements, overturned two lower court rulings and held that statements made by Nike in the course of public debate are to be treated just like ordinary product advertising and therefore could be penalized and even suppressed altogether if a jury decides those statements might mislead some of those likely to read or see them.
 
“The net effect of this novel ruling,” according to Tribe,is to make it extremely dangerous for virtually any business or other organization to utter anything beyond the most innocuous and vaporous generalities about its practices, whether in this country or abroad.  Especially at a time when the watchword is corporate transparency, we’re fortunate that the First Amendment forbids legal schemes like California’s, under which any savvy company would inform the public of next to nothing.”
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