Kasky v nike

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merri ok

see nike

see rehnquist, see belloti

see CoC

see commercial speech, right NOT to speak

good background on the Nike v. Kasky case: http://reclaimdemocracy.org/nike/

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https://truthout.org/articles/unequal-protection-protecting-corporate-liars/

the first direct shot across the bow of the doctrine of a corporation’s “right to lie” by using its “personhood” to claim First Amendment “free speech” rights came in April 1998, when Mark Kasky, a California political activist, noticed that Nike was engaged in what he considered to be a deceptive greenwashing campaign. Kasky had long been a runner and wore Nike shoes, so he was particularly distressed when he saw Nike’s communications director, Lee Weinstein, publish a letter in the San Francisco Examiner in December 1997 that said, in part, “Consider that Nike established the sporting goods industry’s first code of conduct to ensure our workers know and can exercise their rights.”2

This letter was just a small part, it turned out, of a national campaign by Nike to convince the American public that it was making sure that its contractors and subcontractors were treating their employees in Asia well. The year before, Steve Miller, Nike’s sports marketing director, pledged in a letter to athletic program directors and presidents of U.S. universities that Nike’s manufac turers complied with “government regulations regarding minimum wage and overtime as well as occupational health and safety, environmental regulations, workers’ insurance, and equal opportunity provisions.”3

What Nike wasn’t mentioning, but which was leaked to the press in 1997, was a 1996 audit of one of the company’s overseas factories (this one in Vietnam) by Ernst & Young. The audit, which Nike had commissioned but then tried to keep secret, documented how workers in the Vietnamese factory were exposed to cancer-causing solvents like acetone and toluene in ways that would have been flatly illegal in the United States and were not protected from deafening levels of noise; it also raised a series of questions on other workplace issues. As Mother Jones documented in a February 2001 article (“Greenwashing on Trial” by Josh Richman), “another Nike-funded study found evidence of physical and verbal abuse and sexual harassment at nine of its contract factories in Indonesia.”4

kasky was outraged that Nike held itself out as the model corporate citizen. He told filmmaker Lori Cheatle (for her movie This Land Is Your Land, which also features Naomi Klein, Thomas Frank, Jim Hightower, and me, along with seven others):“The Nike code of conduct stated that they maintained the highest standards of health, worker safety, and compensation, and they used that to market their products. So I felt very upset when I realized that a lot of the representations they were making might not be true.”

He and a lot of people in California were buying Nike products under false assumptions or misrepresentations, so he called an attorney and decided to take the company to court.

Kasky went to attorney Alan Caplan (of the “Joe Camel” cigarette lawsuit fame), and together they invoked a rather unique California law that allowed individuals to behave as if they were the state’s attorney general and sue companies for fraudulent or other illegal practices, producing what would ultimately become the Supreme Court case Kasky v. Nike.

[vid 404 The Daily Take: Why Fox News has the Right to Lie to Us]

in 1999 the case was dismissed by San Francisco Superior Court Judge David Garcia, who suggested that Nike’s right to lie—to “free speech”—was protected by the First Amendment of the U.S. Constitution. Kasky and Caplan appealed to the U.S. Court of Appeals, where, in March 2000, that court ruled against Kasky again, with Justice Douglas Swager arguing that Nike was only promoting its products, as any company would, could, and should be able to do in a world of corporate “persons” endowed with free-speech rights.

His comment specifically noted that Nike’s use of inaccurate letters to the editors in newspapers across America, letters telling untruths to university presidents, and other false statements to the press were “within the core area of expression protected by the First Amendment.”

Undeterred, Kasky carried his suit to the California Supreme Court, which ruled in May 2002 (by one vote, 4 to 3) that Nike had violated the California laws against unfair competition and false advertising. The Supreme Court justices didn’t, however, challenge the notion that First Amendment protections didn’t extend to commercial “speech” by corporations; instead they suggested that such rights should be limited to the commercial interests of the corporation and that the action of Nike in this case “bears only a tangential relation to commercial transactions.”

At that point Nike decided that, rather than pay the fine and change its business practices, it would take the case all the way to the U.S. Supreme Court, where a very curious thing happened.

The Supreme Court typically gets more than ten thousand requests every year to hear cases. It has a small army of clerks and lawyers (usually including clerks for the justices—Samuel Alito chooses not to have his clerks participate—known as the “cert pool”)who filter through them to find the ones that have reasonable merit and which the justices may be interested in hearing. The Court as a whole then considers the thousand or so that survive the culling process, further reducing the caseload for the year to a number typically around one hundred total cases (it takes the votes of four justices to grant certiorari, allowing the case to be argued before the Court).

After the Court has gone through all this work to whittle down its case-load, each case comes before the justices in two ways. First, both parties to the case file their own legal briefs or arguments in writing.Second, interested parties—“friends” of either side (by virtue of association or concern for the issue behind the case)—file Friend of the Court, or amicus curiae, briefs, adding their voices to the arguments. Then the justices hear oral arguments, which these days are limited to thirty minutes for each side, after which each justice and his or her staff retire to their offices to consider the arguments, more carefully look over the amicus briefs, and correspond with other justices about each case.

Eventually—typically over a period of a few months—a consensus emerges or a vote is taken, and on each case the Court decides who wins or loses. The justices then write agreements or dissents with or from the majority opinion, and when all is ready for the public they announce their decision.

Except in the Kasky case.

The Court did agree to hear the case, in the 2003 session. The justices heard the oral arguments on June 26. They accepted the amicus briefs—including filings from companies that included ABC, Inc.; the American Society of Newspaper Editors; the Associated Press; Forbes, Inc.; Fox Entertainment Group; Gannett Company; the Hearst Corporation; the McClatchy Company; the National Association of Broadcasters; the National Broadcasting Company (NBC); National Public Radio, Inc.; the New York Times Company; Newsweek, Inc.; PR Newswire; the Seattle Times Company; Time, Inc.; Tribune Company; U.S. News & World Report; and the Washington Post Company—all agreeing with Nike.

ExxonMobil, Bank of America, and Microsoft filed their own three-company brief on behalf of Nike, and similar separate filings came from the National Association of Manufacturers, Pfizer, and the U.S. Chamber of Commerce, among others.

Even the American Civil Liberties Union (ACLU) filed a brief defending Nike’s right to “free speech” as a “person” in America.The legal department of the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) filed a brief defending Nike’s “right to lie” (it is true that as persons we have a “right to lie” except in particular cases such as when under oath). Even the very liberal New York Times columnist Bob Herbert wrote an impassioned op-ed supporting Nike’s right to deceive the public. All three mistakenly believed that corporations had had First Amendment rights since 1886, and all three were strong advocates of the First Amendment. And the AFL-CIO, of course, was a corporation itself, albeit a unique nonprofit form of incorporation.

There was also a loud public debate on the issue. Citizen activist groups picketed the Supreme Court, decrying corporate personhood and the entire idea that constitutional protections like free speech should be granted to corporations instead of being the exclusive province of humans, while the New York Times, the Wall Street Journal, and the Washington Post (among others) ran shrill editorials warning of dire consequences for the future of capitalism and democracy if corporations weren’t finally and fully granted the constitutional right of free speech.

The Court then heard the oral arguments, in which Kasky’s lawyers, Alan Caplan and Philip Neumark, revisited the series of very specific lies that they asserted Nike had told the American public in their original lawsuit. They said that Nike:

In order to maintain and/or increase its sales, made misrepresentations by the use of false statements and/or material omissions of fact, including but not limited to the following:

(a) claims that workers who make NIKE products are protected from and not subjected to corporal punishment and/or sexual abuse;

(b) claims that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;

(c) claims that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;

(d) claims that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;

(e) claims that workers who produce NIKE products receive free meals and health care;

(f) claims that the GoodWorks International (Andrew Young) report proves that NIKE is doing a good job and “operating morally”; and

(g) claims that NIKE guarantees a “living wage” for all workers who make NIKE products.5

Nike, for its part, argued that when it hired former UN ambassador and Atlanta mayor Andrew Young to check them out, he found that everything was hunky dory: “Although some news organizations concluded that some allegations against Nike had merit, former United Nations Ambassador Andrew Young concluded in an independent review commissioned by Nike that the charges were largely false.”6

Further, Nike’s lawyers said that when the California Supreme Court concluded that it was okay for Marc Kasky to use the consumer protection laws to hold Nike accountable for what it said to the public, it was way too broad a use of the laws against fraud or deception in commerce. Nike’s lawyers wrote: “The California court’s conclusion that government may regulate all statements of fact by commercial entities that could influence consumers sweeps far too broadly…”

Nike’s lawyers also didn’t like the law in California that let an individual act as if he were the attorney general: “The private attorney general provisions of the UCL and FAL thus violate the First Amendment because they omit not only any requirement that the plaintiff have suffered harm, but also any other meaningful constraint on the ability of private plaintiffs to bring lawsuits…” which could impose a “crushing burden” on a multibillion-dollar corporation like Nike.

And, finally, calling implicitly on the doctrine that a corporation is a person protected by the Bill of Rights, Nike argued: “Even if petitioner’s [Nike’s] statements could be characterized as ‘commercial speech,’ the legal regime approved by the California Supreme Court violates the First Amendment.” In other words, “We’re a company, which is the same as a person, and so we have the First Amendment right to say whatever we want, just like anybody else. To say that we have to only say things that are accurate violates our First Amendment right of free speech.”

All of this was laid before the Court. There were multiple dimensions to the case, but at its heart was the issue of whether a corporate “person” had the same “right to lie,” guaranteed by the First Amendment to the U.S. Constitution, as you and me. If I can tell my wife that she looks great in a dress that I really think is ugly (but know she loves), Nike had the right to tell Americans that it was treating its workers well (even though it wasn’t and knew it).

But something caught in the Court’s throat. Chief Justice William Rehnquist, with six of his colleagues, decided that the Court had made a big mistake when it granted a writ of certiorari, the declaration that the case was legitimate and appropriate for the Court to hear.

Remember that it was Rehnquist who, in the earlier First National Bank of Boston v. Bellotti case (mentioned in chapter 1), had said that he disagreed with what he believed was the decision of the Supreme Court in 1886, that corporations were persons. And, interestingly, the attorneys who crafted the amicus brief on behalf of Marc Kasky took special pains to point out—with the hope that Rhenquist would read it and have a “EUREKA!” moment—that the Court had actually never created corporate personhood in 1886.

Quoting from the first edition of this very book, Kasky’s attorneys wrote directly to Rehnquist in their brief:

Indeed, the initial grant of “personhood” under the Fourteenth Amendment to corporations was, to a certain extent, a judicial mistake. Corporate person-hood is generally attributed to the Court’s decision in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), although the Court in that case specifically declined to address the issue. In Santa Clara County, Santa Clara County sued the Southern Pacific Railroad Company for failure to pay taxes, and the railroad presented the Court with six defenses, including the argument that corporations were persons under the Equal Protection Clause of the Fourteenth Amendment. Because one of the other five defenses was successful, the Court had no occasion to decide the question of corporate personhood and specifically declined to do so:

If these [other] positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined below; for, in that event, the judgment can be affirmed upon the ground that the assessment cannot properly be the basis of a judgment against the defendant.

As the judgment can be sustained upon this [other] ground, it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.

Id. at 411, 416. Indeed, in a companion case, Justice Field in a concurring opinion lamented that the “tax cases from California” did not “decide the important constitutional questions involved.” County of San Bernardino v. Southern Pac. R. Co., 118 U.S. 417, 422 (1886) (Field, J., concurring).

Nevertheless, it appears that the court reporter, J.C. Bancroft Davis, included a headnote stating, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.” See Thom Hartmann, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights 107 (2002) (quoting J.C. Bancroft Davis, 118 United States Reports: Cases Adjudged in the Supreme Court at October Term 1885 and October Term 1886 394 (Banks & Brothers Publishers).7

In other places in the brief, its authors took special pains to point out how Santa Clara had been misinterpreted over the years. (One sentence, for example, begins, “Notwithstanding the mistaken ‘personification’ of corporations in Santa Clara, the Court’s subsequent rulings reveal that this Court has not consistently applied the implications…”)

Every step along the way helped telegraph to Rehnquist that his dislike of what he thought had been decided in 1886 in Santa Clara was a good gut instinct because he was right. Corporations aren’t persons, and the Court had not said they were in 1886!

Nobody knows what happened when this bombshell hit Rehnquist’s desk, as the Court is notoriously secretive. But something big happened because Rehnquist leapt into action—and that action was to decide not to decide the Kasky case. Inexplicably, astoundingly, and virtually without precedent, Rehnquist and most of his colleagues issued a very, very terse statement.

The single sentence the Court issued said only: “The writ of certiorari is dismissed as improvidently granted.”

In other words, “When we decided to listen to these arguments and look over this case, granting it legal certification before us, we screwed up. Therefore we’re tossing out the certification and going to pretend we never even heard this case or read its briefs.”

While this dismissal represented the thinking of the majority of the Court, Justices Sandra Day O’Connor and Stephen Breyer were incensed. Breyer wrote: “In my view…the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on.”

But regardless of Breyer’s or O’Connor’s concern that the Court was kicking the can down the road, the case came to a halt, and Kasky and Nike settled out of court almost immediately when the California courts granted Kasky the legal right to access Nike’s internal files(known as a grant of discovery). The amount of money Nike paid Kasky’s lawyers to stop at that point and not pursue discovery, rather than legally riffle through Nike’s internal papers, was never disclosed, and Kasky, for his part, agreed with the decision to stop discovery when Nike made a seven-figure gift to an organization that worked to help sweatshop workers around the world.

The world was safe for corporate liars (although California’s citizens were still free to go after them in a limited fashion). Corporate personhood hadn’t been challenged. And the weird coalition of liberals (Bob Herbert and the ACLU) and conservatives (NBC, ABC, the Chamber of Commerce, and others) who worried that ending a corporation’s right to call on the First Amendment would be a disaster for America all breathed a sigh of relief.

Until 2010.

Notes:...

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https://www.**salon**.com/2019/07/14/corporations-can-legally-put-carcinogens-in-our-food-without-warning-labels-heres-why/

Corporations can legally put carcinogens in our food without warning labels. Here's why

Cheerios has so much glyphosate in it, it should be labeled as toxic. Corporate free speech precedents prevent that

MATTHEW ROZSA

JULY 14, 2019

A recent study by the Environmental Working Group revealed something horrifying: Glyphosate, the active ingredient in the popular weedkiller Roundup, was present in 17 of the 21 oat-based cereal and snack products at levels considered unsafe for children. That includes six different brands of Cheerios, one of the most popular American cereals.

I've written before about the limits of corporate free speech when it comes to public safety, but on that occasion I discussed this insofar as it involved corporate-sponsored climate change denialism. Yet here we have something more tangible, more direct: The safe glyphosate limit for children is 160 parts per billion (ppb), yet Honey Nut Cheerios Medley Crunch has 833 parts per billion and regular Cheerios has 729 ppb. While the potential risks of glyphosate are fiercely debated, many scientists believe that it is linked to cancer.

So if there are unsafe levels of glyphosate in a cereal popular with children, why isn't this disclosed on the cereal boxes? The complicated answer has to do with a legal case that defined free speech as something that non-human persons, like corporations, have a "right" to, in a sense. That sounds absurd, perhaps, and probably not something the framers of the constitution intended. Indeed, the idea of "corporate constitutional rights" is a relatively new one, yet one that corporations' legal arms fight tooth and nail to preserve.

There are several activist groups working to amend the constitution to undo the notion of corporate personhood and make it so that this mind-bending and harmful interpretation of corporate free speech is no longer enshrined in law. Move to Amend — as in, the constitution — is one such group. Salon interviewed ...What does glyphosate do to weeds?

There are several activist groups working to amend the constitution to undo the notion of corporate personhood and make it so that this mind-bending and harmful interpretation of corporate free speech is no longer enshrined in law. Move to Amend — as in, the constitution — is one such group. Salon interviewed Kaitlin Sopoci-Belknap, the National Director of Move to Amend, to understand how this weird legal situation came to exist.

Glyphosate is a non-selective herbicide, meaning it will kill most plants, not just weeds. It prevents plants from making certain proteins that are needed for plant growth.

What do peer-reviewed studies indicate it does to human beings and animals if they ingest it?

The International Agency for Research on Cancer (IARC) has labeled glyphosate as “probably carcinogenic” and the California Office of Environmental Health Hazard Assessment categorized it as a “chemical known to the state to cause cancer.”

How did glyphosate wind up in foods like breakfast cereals?

According to the U.S. Geological Survey, 250 million pounds of glyphosate are sprayed on American crops each year. Glyphosate is primarily used on Roundup Ready corn and soybeans that are genetically modified to withstand the toxin. Glyphosate is also sprayed on other non-GMO crops, like wheat, oats, barley and beans, right before harvest.

What have Monsanto and other companies done to suppress knowledge of its effects (lobbying, suppressing science, etc.)?

Monsanto has waged a sophisticated PR campaign to bully scientists and undermine findings that glyphosate is cancerous. In addition Monsanto and agribusiness leaders protecting the company's interests have a revolving door relationship with many agencies that are supposed to be overseeing and regulating the corporation. Monsanto and agribusiness associations have also made significant political contributions to Congressmembers like former Rep Lamar Smith from Texas who chaired the House Science, Space, and Technology Committee where he used his platform to undermine the [International Agency for Research on Cancer] when their cancer findings came out, accusing the agency of using "cherry-picked" science when determining that glyphosate is “probably carcinogenic.” ...Monsanto has argued that California's Prop 65 labeling law is a violation of the company's First Amendment right not to speak.

What is the boundary separating corporate free speech between their responsibility to the public health? Have those boundaries shifted over the years?

The courts have expanded the ability of corporations to overturn labeling requirements on a number of occasions over the last 35 years. In 1986 the Supreme Court decided that the Pacific Gas and Electric Company in California was not required to allow a consumer advocacy group to use the extra space in their billing envelope, upholding the corporation's right not to speak and protecting the corporation's “freedom of mind.”

In 1996 the U.S. Second Circuit Court of Appeals overturned a Vermont law requiring the labeling of all products containing bovine growth hormone and ruled that the right not to speak inheres in political and commercial speech alike and extends to statements of fact as well as statements of opinion.

In Nike v. Kasky in 2003the Supreme Court heard arguments on whether purposeful untruths in advertising are protected political speech before sending the case back to a California courtwhere it was settled in Kasky’s favor, finding that the state laws requiring truth in advertising had been violated. The question of whether the First Amendment gives a corporation the right to speak lies remains unsettled.

Legally speaking, why are companies allowed to have poisons in our foods without warning the public of that fact?

The Supreme Court never had the authority to determine that corporations have any Constitutional rights, including First Amendment rights. By granting corporations these powers, meant to be the ultimate protections for people from government overreach, it in effect means that in many ways regulatory agencies have no authority over corporate actions — even when those actions are determined to cause public harm. In cases involving the First Amendment right not to speak it is even more insidious because it means that their so-called right not to warn the public about their toxic products trumps our right to know what's in our food.

The only solution to this problem is to pass an amendment to the US Constitution to make clear that only human beings have Constitutional rights, and that government absolutely has the right to regulate corporations like Monsanto, so that they can no longer use the Constitution as a shield against public oversight and protection. The We the People Amendment will do just that.

MATTHEW ROZSA

Matthew Rozsa is a breaking news writer for Salon. He holds an MA in History from Rutgers University-Newark and is ABD in his PhD program in History at Lehigh University. His work has appeared in Mic, Quartz and MSNBC.

3 pp

https://money.howstuffworks.com/corporation-person2.htm

:{What's strange, Hartmann points out, is that the justices hadn't ruled that way at all. Even fishier, the court reporter was a former railroad president source: :(style="background-color:#ffffffff"):}:[Hartmann:{]. Ultimately, since it was a headnote (a commentary prefix to the court record) written by the reporter, it didn't constitute law. But it did set precedent. Two years later, this idea was upheld in another case: Pembina Consolidated Mining and Milling Co. v. Pennsylvania source: :(style="background-color:#ffffffff"):}:[Aljalian:{]....404 waybck}:

https://web.archive.org/web/20070319225921/http://findarticles.com/p/articles/mi_qa3735/is_199904/ai_n8836370/

The remarkably odd stipulation that, as artificial persons, corporations should enjoy the same Constitutional protections as humans has given rise to some equally odd arguments. Time and again, the strength of this assumption has been tested in court. As a result, this American tradition has been upheld and challenged.

In the 1990s, the athletic company Nike was accused of running sweatshops -- factories that employ labor at substandard conditions and low wages -- in developing Asian countries. The story came to the fore even more in 2001. That year, Nike launched a shoe line that allowed customers to have whatever they pleased embroidered on the company's shoes. One MIT graduate student lodged his order: He wanted the word "sweatshop" embroidered on his pair.

The company refused his order, and the student circulated the e-mail Nike had sent him. The media took notice. In short order, stories of Nike's overseas labor practices made it into the pages of news outlets like the Wall Street Journal source: [The Industry Standard].

In an ongoing public relations campaign, Nike said it did not use exploitative labor practices, and it actually protected workers' rights abroad. Based on proof that contradicted the PR blitz, a California man sued the company in 1998 for false advertising source: [BBC]. The company challenged the issue, saying that as an artificial person, it was allowed to lie. Lying, after all, is protected by the freedom of speech granted in the First Amendment.

Nike lost in the California Supreme Court, but appealed. After accepting the case, the Supreme Court deferred it back to the lower courts source: [New York Times]. Ultimately, the company settled the suit for $1.5 million, which went to a labor rights group source: [BBC]. In 2005, Nike published a report of the working conditions in its overseas factories, which included admissions of employee mistreatment source: [The Guardian].

Nike's not alone in seeking Constitutional protection against bad publicity. In 1986, Dow Chemical sued the federal government. The company argued that the use of aerial photography by the Environmental Protection Agency (EPA) was a violation of the corporation's Fourth Amendment rights. Dow asserted that the EPA shouldn't be able to snap photos in search of federal violations. The Fourth Amendment protects Americans from unreasonable search and seizure, and Dow alleged its rights were violated by EPA flyovers source: [Connecticut General Assembly]. The Supreme Court ultimately decided 5 to 4 to uphold the lost case, opining that Dow couldn't reasonably expect privacy in its chemical plant source: [New York Times].

But corporations have been successful in court as well. In the 1978 case Marshall v. Barlow's, Inc., the Supreme Court established freedom from search for businesses under the Fourth Amendment. Prior to the ruling, agents from the federal Occupational Safety and Health Administration (OSHA) could inspect any business for safety violations without alerting the owner or asking his or her permission source: [USSC Plus]. Following the Marshall case, incorporated businesses were granted the same protection human citizens have from police searches. OSHA now must either receive permission from the owner or show evidence that a violation has occurred and obtain a search warrant source: [CBIA].

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monsanto fox akre & wilson fired for insubordination by licensee of public air waves b/c refused to lie, then mgr tried to pay them off (3 bill just paid for station)

gmo bgh

thom hartman http://www.youtube.com/watch?feature=player_embedded&v=jDKLFn0pty4#at=20

Ever wonder why it is that Fox News can lie over and over again - yet continue to call itself "News"? It's because Fox News is a corporation - and ever since that 1886 Supreme Court case of Southern Pacific Railroad versus Santa Clara County when a rogue court reporter named JC Bancroft Davis slipped corporate personhood into the legal record - the courts have ruled time and time again that corporations - since they have all the rights that actual people have - could also lie just like people can.

Except for one time. Back in 1998 - a political activist named Mark Kasky sued Nike alleging that Nike was lying to its customers by publishing in the San Francisco Examiner a letter assuring everyone that the corporation's workers around the world enjoy basic labor rights like a minimum wage - health and safety regulations - and equal opportunity employment. Kasky knew this claim wasn't true. A 1996 audit of the Nike revealed that workers in Vietnam were routinely exposed to cancer-causing chemicals that were illegal in the United States. And a Mothers Jones article later cited a Nike-funded study that found, "evidence of physical and verbal abuse and sexual harassment at nine of its contract factories in Indonesia." After realizing he and thousands of other Nike customers were lied to and were buying Nike products under false assumptions - Kasky took the corporation to court. And in 2002 - Kasky won his case before the California Supreme Court which ruled that Nike did indeed break laws against unfair competition and false advertising.

but appeal scotus 2003 freedom of sp = lie; rhenquist suddently dismissed case, nike settled w. kasky, fox corp about to defend right to lie (akre) 6 jurors all agreed; falsified news; appeals reversed, fox has right to lie, and force reporters to; control vocab, gw; fairness doctr 1987; const amend to bal budget, but we need mta cali t GOPTV as ailes imagined in 70's

rbst gmo fox killed akre and wilson investigation on milk monsanto hired lawyer who sent letter

http://www.youtube.com/watch?feature=player_embedded&v=JL1pKlnhvg0 invest rept

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shadows of lib;

AMY GOODMAN: Jean-Philippe, the examples in your film are extremely powerful. And that’s what we’re going to turn to right now. We’re going to turn to a clip of the film, and this is a clip that involves Roberta Baskin. She is a reporter for CBS. The first story in the film is about this reporter, CBS chief correspondent, who traveled to Vietnam in 1996 to report on labor abuses at Nike factories. This is a clip of Roberta Baskin describing some of what she found.

ROBERTA BASKIN: One of the things that really shocked me was to discover that the word "Nike" had become a verb. The word "Nike" meant to abuse your employees. There were incidences of physical abuse, women who had their mouths taped shut for talking on the line, 15 women who were systematically hit with the top part of a Nike shoe around the face and the neck. It was this disparity between seeing the corporate image that the company sells and the reality in these factories: "Just do it, or else."

AMY GOODMAN: The report sparked protests and boycotts across the country, as Nike rushed to deny the allegations. CBS asked Roberta Baskin to do a follow-up report. The film explains what happened next.

NARRATOR: As Baskin was putting together the updated news report on Nike’s labor practices, she received unexpected news from inside CBS.

ROBERTA BASKIN: I got a call from my executive producer, who said, "The story is not going to air. It’s been taken off schedule. There’s some sort of deal being made between Nike and CBS Newsfor the upcoming Winter Olympics." And the air went out of my soul.

BRIAN HEALY: CBS News was paying an enormous amount of money for the rights. And so, by definition, they would be seeking out commercial sponsors who would pour lots of money into it so that they could recoup the millions that they were paying for the rights of the Olympics.

CBS ANNOUNCER: The 18th Olympic Winter Games on CBS.

NARRATOR: As CBS revealed their Olympic coverage, the deal between Nike and CBS was plain to see.

ROBERTA BASKIN: Correspondent after correspondent are wearing these Nike jackets on the air, with a little CBS something or other—you really couldn’t read it—and a big swoosh on the shoulder. That was the deal. Nike had convinced CBS News to turn its correspondents into billboards. It was heartbreaking.

BRIAN HEALY: The CBS News correspondents were furious. They had to wear the Nike parkas whenever they appeared on air. It’s just not done.

NARRATOR: Baskin wrote a memo requesting CBS management to take the Nike logo off the correspondents.

ROBERTA BASKIN: CBS had crossed this incredible line. How do you trust serious stories when you’re seeing the reporter wearing a bunch of logos? Immediately, the president of CBS News responded, saying, "This was a breach of professional etiquette." It meant that I should shut up. How dare I raise a question about the integrity of CBS News?

AMY GOODMAN: That was Roberta Baskin from the film Shadows of Liberty. You also heard former CBS News producer Brain Healy in that clip. Jean-Philippe Tremblay, why did you choose to open the film with this story?

JEAN-PHILIPPE TREMBLAY: Well, Roberta Baskin is just an example of an amazing journalist. She’s one of the most awarded female journalists here in the United States. She’s won something like over 75 journalistic awards. And the report—the reporting that she does is always trying to tell us what’s happening with power. Here we see an example with the Nike corporation. And because she’s reporting on the Nike corporation, she’s stopped by the very power that she’s working for, CBS News, because they have made a deal with Nike corporation.

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srcwatch:

Kasky vs Nike was the title of a landmark legal case in which Marc Kasky, a resident of San Francisco, launched a legal action in April 1998 against Nike in which he claimed that public statements by the company had misrepresented factory working conditions. At the heart of the case was that the statements made by the company were "commercial speech" and thereby subject to regulatory restrictions relating to false and misleading advertising an not protected by the U.S. Constitution's First Amendment. The case was settled out of court in September 2003.

[hide]

Case Timetable

April 20th, 1998: Statement of Claim Filed by Kasky's lawyers in the Superior Court of the State of California;
Trial court supported Nike's claim that its CSR statements were protected speech and dismissed Kasky's complaint;
Kasky appeal against this decision was rejected;
May 2002: Kasky appealed against the lower court's decision to the California Supreme Court. They found 4-3 in favour of Kasky that Nike violated sections of the Business and Professions Code;
June 26, 2003: the U.S. Supreme Court declined to rule on Nike's appeal;
September 2003: The case was settled out of court.

The Case

The case began as a "private attorney general" action, using California's "business fraud" statute. ^[1]

In the initial statement of claim, Kasky argued that Nike:

"...in order to maintain and/or increase its sales, made misrepresentations by the use of false statements and/or material omissions of fact, including but not limited to the following:

(a) claims that workers who make NIKE products are protected from and not subjected to corporal punishment and/or sexual abuse;
(b) claims that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;
(c) claims that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;
(d) claims that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;
(e) claims that workers who produce NIKE products receive free meals and health care;
(f) claims that the GoodWorks International (Andrew Young) report proves that NIKE is doing a good job and "operating morally"; and
(g) claims that NIKE guarantees a "living wage" for all workers who make NIKE products." ^[2]

Kasky's lawyers, Alan Caplan and Philip Neumark argued that Nike should lose a significant share of profits on sales in California for a period of several years. More important than the"disgorgement" threat, however, was the prospect of turning over memos and files proving a decade of dissembling and outright lies about workers' wages and conditions. ^[3]

(This was the legal team when the case was argued at the Supreme Court: Paul R. Hoeber argued the cause for respondent. With him on the brief were Alan M. Caplan, Roderick P. Bushnell, Patrick J. Coughlin, Randi Dawn Bandman, Albert H. Meyerhoff, and Sylvia Sum) ^[4]

Somewhat surprisingly, the AFL-CIO legal department filed a brief to support Nike's "right to lie." In addition, Bob Herbert, the New York Times columnist and fierce critic of the company's sweatshop practices, wrote a column supporting the Nike position. ^[5]

As is usual in such settlements, the terms are confidential; Nike does not have to say how much was paid to Kasky's lawyers to end the threat of discovery.

Owing to the settlement, the line between commercial and political speech remains indistinct. The advertising industry avers that this situation will force corporations to be restrained in entering the public arena on issues such as the environment or social issues, such as the treatment of workers. ^[6] The prodigious output from"corporate social responsibility" practitioners in the years since Kasky was settled, however, makes it appear these fears are unfounded.

The case was settled in Sept. 2003, just as "discovery" was granted, thereby ending a golden opportunity to examine Nike documents which would likely have proven extensive knowledge of continuing "sweatshop" practices while Nike promotional material was proclaiming "leadership" in protecting the rights of contract employees in far-off factories.

Resources On The Kasky vs Nike Case

ReclaimDemocracy.org: http://reclaimdemocracy.org/nike/
Council of Public Relations Firms: http://www.prfirms.org/resources/nike/default.asp

Other SourceWatch Resources

Corporate Social Responsibility

References

Jump up↑ Wendy Tannenbaum, "Nike brings commercial speech to Supreme Court", The News Media & The Law, Volume 27, Number 2, Spring 2003, p. 25.
Jump up↑ "Kasky v. Nike, Inc. Superior Court of the State of California April 20th, 1998", Corpwatch, accessed June 2007.
Jump up↑ Russell Mokhiber and Robert Weissman, "Nike Gets a Pass", Focus On The Corporation, Volume 8, Number 3 , October 8, 2003.
Jump up↑ U.S. Supreme Court Center, "Nike, Inc., Et Al. v. Kasky 539 U.S. 654", October 2002.
Jump up↑ Bob Herbert, "Let Nike Stay in the Game", New York Times, May 6, 2002.
Jump up↑ Marc Rachman and Joseph Lewczak, "Supreme Court's "Non-Decision" and Nike's Settlement Likely To Have Negative Impact on Corporate Speech For Forseeable Future", Davis & Gilbert LLP, undated, accessed June 2007.

External links

Douglas K. Spong, "Business forum: Golden State silence: High court non-decision puts chill on corporate speech", Minneapolis Star Tribune, July 21, 2003.
Adam M. Kanzer and Cynthia A. William, '[http://www.business-ethics.com/nike_vs__kasky.htm The Future of Social Reporting Is on the Line: Nike v. Kasky could undermine the ability to require accurate reporting, Business Ethics, Summer 2003 at (accessed November 2006).
Matthew Creamer, "Nike talks to PRWeek after Kasky settlement, PR Week, September 12,2003. (Sub req'd).
Andrew Gordon, "Nike settlement leaves key speech issues unresolved", PR Week, September 22 2003. (Sub req'd).
Andrew Gordon,"Nike reins in California PR following £1m settlement", PR Week, September 30, 2003.(Sub req'd).
"Nike's reputation in spotlight again", PR Week, April 1, 2005.(Sub req'd).
Hamilton Nolan, "Nike boosts CSR program by issuing factory report", PR Week, April 22, 2005. (Sub req'd.)
Steve Duin, "Nike back in responsibility rehab," The Oregonian, June 3, 2007.

Categories:

wiki

Kasky v. Nike, Inc.[edit]

Kasky filed a lawsuit in California regarding newspaper advertisements and several letters Nike distributed in response to criticisms of labor conditions in its factories. Kasky claimed that the company made representations that constituted false advertising. Nike responded that the false advertising laws did not cover the company's expression of its views on a public issue, and that these were entitled to First Amendment protection. The local court agreed with Nike's lawyers, but the California Supreme Court overturned this ruling, claiming that the corporation's communications were commercial speech and therefore subject to false advertising laws.

The United States Supreme Court agreed to review the case (Nike v. Kasky) but sent the case back to trial court without issuing a substantive ruling on the constitutional issues. The parties subsequently settled out of court before any finding on the accuracy of Nike's statements, leaving the California Supreme Court's denial of Nike's immunity claim as precedent.The case drew a great deal of attention from groups concerned with civil liberties, as well as anti-sweatshop activists.

A more high-profile challenge to corporate personhood involves a lawsuit against Nike and its claims on third-world labor practices. In 1998, Nike CEO Phil Knight wrote a New York Times op-ed piece responding to criticisms of Nike’s Asian labor practices. As was widely reported in the mainstream press in mid-April of this year, San Francisco consumer advocate Marc Kasky filed a lawsuit against Nike believing the company misled the public about its labor practices.Nike, however, claims that the First Amendment protects Nike’s statements, making it irrelevant whether the statements are true or false.

In May 2002, the California Supreme Court ruled against Nike saying its statements were commercial speech, and can therefore be regulated by the Federal Trade Commission. This ruling, writes Justice Joyce L. Kennard, “means only that when a business enterprise, to promote and defend its sales and profits, makes factual representations about its own product or its own operations, it must speak truthfully.”

On April 26, 2003, the Ottawa Citizen provided some pro-Nike coverage of the current case against Nike saying, “The case began some years ago when anti-globalizers accused Nike of exploiting workers at its factories abroad. The Nike-bashing was unrelenting, and the company fought back.” Hartmann’s article also notes The New York Times’ editorial support for Nike saying, “In a real democracy, even the people you disagree with get to have their say.” That’s true says Hartmann, but Nike is not a person-it’s a corporation.

By the release of Censored 2004, the Nike case will probably be a settled issue. It is likely that Porter Township’s ordinance will be challenged in higher courts in the near future. However, Hartmann’s research and writings show that the legality on which corporate claims to personhood and free speech rights rests is dubious.

UPDATE BY JIM HIGHTOWER: Anyone seeking to preserve America’s fragile democracy must first understand the scope and magnitude of the powers aligned against it. We live in an age in which corporations have been enthroned and corruption in high places has enabled power and wealth to be aggregated into an increasingly smaller number of hands. As citizens concerned with the future of human rights in a democratic republic, it’s vital that we now speak up and spread the word about “Corporate Personhood,” which lies at the heart of the challenge facing us today.

On April 23, 2003, the U.S. Supreme Court heard oral arguments in Nike v. Kasky, the Nike Corporation’s appeal of an April 2002 California Supreme Court ruling. In Kasky v. Nike, the California court rejected claims by Nike’s lawyers that the First Amendment immunized Nike from being sued under state consumer protection laws (for allegedly misrepresenting facts in a public relations campaign). The U.S. Supreme Court (where the case is Nike Inc, et al. v. Marc Kasky since Nike is the party appealing) likely will issue a ruling by late June on the Constitutional issue of whether Nike can claim exemption from the California law under the First Amendment. The Court will not consider the merits of the original lawsuit, in which Mr. Kasky sued Nike for deceptive practices.

The story in the Hightower Lowdown received no additional coverage by mainstream media sources. However, the Nike v. Kasky case has generated a substantial amount of interest, although the opinions are predictable. As of May 25, 2003, four of the five largest U.S. newspapers had editorialized on behalf of the Nike Corporation. Though all five had received submissions from nationally published writers, none had published dissenting commentaries. The Rocky Mountain News (#27-Denver) was alone among the top-50 papers in allowing space for a dissent to their pro-Nike editorial. The Sacramento Bee (ranked #31) thus far is the only paper to critique Nike’s “free speech” claims in an editorial (while arguing that the Supreme Court should dismiss Kasky’s suit on other grounds).

For more information go to:

ReclaimDemocracy.org (P.O. Box 532, Boulder, CO 80306; 303-402-0105;

http://www.reclaimdemocracy.org)

scholalrly

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1269&context=facpub

howstuff:

In the 1990s, the athletic companyNike was accused of running sweatshops -- factories that employ labor at substandard conditions and low wages -- in developing Asian countries. The story came to the fore even more in 2001. That year, Nike launched a shoe line that allowed customers to have whatever they pleased embroidered on the company's shoes. One MIT graduate student lodged his order: He wanted the word "sweatshop" embroidered on his pair.

In an ongoing public relations campaign, Nike said it did not use exploitative labor practices, and it actually protected workers' rights abroad. Based on proof that contradicted the PR blitz, a California man sued the company in 1998 for false advertising [source: BBC]. The company challenged the issue, saying that as an artificial person, it was allowed to lie. Lying, after all, is protected by the freedom of speech granted in the First Amendment.

Nike lost in the California Supreme Court, but appealed. After accepting the case, the Supreme Court deferred it back to the lower courts [source: New York Times]. Ultimately, the company settled the suit for $1.5 million, which went to a labor rights group [source: BBC]. In 2005, Nike published a report of the working conditions in its overseas factories, which included admissions of employee mistreatment [source: The Guardian].

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A Court Divided: The Rehnquist Court and the Future of Constitutional Law

By Mark Tushnet says tossed b/c too messy, pol and comm'l speech mixed?

:{:{}:

corps went ballistic at CA scotus decision

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biz law uc davis:

This paper analyzes the Nike commercial speech case. The first section discusses the progression of commercial speech protection in the United States and the related cases. The second section discusses the facts and the procedural history of the Nike case as it proceeded through the California court system, ultimately reaching the United States Supreme Court. The third section argues that the California Supreme Court used the correct test and ultimately reached the correct decision by limiting the protection of the expression at issue. Finally, the paper concludes by asserting that the distinction between commercial and noncommercial speech must be maintained to check corporate malfeasance. If the addition of a political statement to commercial speech justifies full constitutional protection the applicable tests would become meaningless.

:{:{}:

http://blj.ucdavis.edu/archives/vol-5-no-2/Commercial-Speech-and-the-First-Amendment.html

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Lisa Danetz is a staff attorney at the National Voting Rights Institute in Boston. NVRI does both litigation and public education related to campaign finance reform, trying to redefine campaign finance reform as a civil rights issue. Lisa first became aware of the corporate personhood issue through the recent Supreme Court case, Nike v. Kasky, and authored the amicus brief filed in that case on behalf of ReclaimDemocracy.org. NVRI became involved in the Nike v. Kasky case because the issues involved in the Nike case are the same as those at the heart of corporate participation in the political process: namely, to what degree may the government regulate corporate "speech" that does not fit the Supreme Court's definition of "commercial speech"?

From: Lisa Danetz

Mailing-List: list natural_persons@yahoogroups.com; contact natural_persons-owner@yahoogroups.com

Date: Thu, 26 Jun 2003 16:58:39 -0400

Subject: RE: [natural_persons] Nike case

I thought the list would be interested in knowing that the Supreme Court dismissed the appeal with one sentence in the Nike v. Kasky case. This means that they did not rule on the First Amendment issue and, at least for the time being, there is no Supreme Court law explicitly according the same level of First Amendment protection to corporations and to individuals. . . .

Now that I have read the opinions, Adam [Sacks -- list moderator] asked me to share a few more thoughts about the Nike case. As I mentioned earlier, the Court dismissed the appeal in a one-sentence order. As you may or may not be aware, the Supreme Court only accepts a small number of appeals for review each term. Essentially, the Court's one-sentence order indicated it decided it should not have heard the appeal in the first place.Thus, the California Supreme Court opinion -- which decided that Kasky could proceed with the lawsuit -- was reinstated as controlling the outcome of the case.

Six Justices agreed with this outcome (C.J. Rehnquist and JJ. Stevens, Scalia, Thomas, Souter, and Ginsburg). Three dissented (JJ. Kennedy, Breyer and O'Connor).

There is no way to know the exact reason why the six justices decided that the Court should not have heard the appeal. Justice Stevens, joined by Justice Ginsburg and joined in part by Justice Souter, wrote a concurring opinion outlining the three reasons why he agreed that the appeal should be dismissed. (Justice Souter only agreed with one of the three.) The opinion did not reach corporate personhood issues at all. The remaining three justices who voted to dismiss the appeal remained silent as to their reasons.

It is not surprising that the Court (in the order, concurrence, or dissent) did not discuss corporate personhood issues. Corporate personhood was something of a hidden evil in this case. The parties themselves viewed this case as a clash between two well-settled First Amendment doctrines: commercial speech (Kasky's view) and political speech (Nike's view). If the Court had ruled in Nike's favor on the First Amendment issue, the logic would have meant that corporations enjoy the same exact First Amendment protections as individual citizens. In other words, the Court would have decided the corporate personhood issue by assumption and without any discussion.

Although many would argue that the case law currently implies that corporations enjoy the same First Amendment protections as individual citizens anyway, the Court has never explicitly decided that people and corporations get the same level of protection. In fact, in a footnote in another case this past term, Federal Election Commission v. Beaumont, the Supreme Court appeared to recognize that individual citizens enjoy greater First Amendment protection than do corporations.

We argued this point -- basically, that corporations don't get the same level of protection for political speech -- in our amicus brief but we knew it would be unlikely the Court would address the issue. Even though our brief was submitted on behalf of Kasky, Kasky's lawyer CONCEDED that Kasky would lose if the Court determined that the speech was not commercial speech. Therefore, even if the Court examined the merits of the case, it is unlikely it would have reached the issue we raised.

The gist: This dismissal is great news for our side[.??]

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http://www.oyez.org/cases/2000-2009/2002/2002_02_575

2002

Facts of the Case

Beginning in 1996, a number of allegations arose that Nike was mistreating and underpaying workers at foreign facilities. Nike responded to the charges in numerous ways, such as by issuing press releases. In 1998, Marc Kasky, a California resident, sued Nike for unfair and deceptive practices under California's Unfair Competition Law. Kasky alleged that Nike made "false statements and/or material omissions of fact" concerning the working conditions under which its products are manufactured. Nike filed a demurrer, contending that Kasky's suit was absolutelybarred by the First Amendment. The trial court dismissed the case and the California Court of Appeal affirmed. In reversing, the California Supreme Court found that Nike's messages were commercial speech, but that the suit was at such a preliminary stage that the issue whether any false representations had been made had yet to be resolved.

Question

May a corporation participating in a public debate be subjected to liability for factual inaccuracies on the theory that its statements are commercial speech because they might affect consumers' opinions about the business as a good corporate citizen and thereby affect their purchasing decisions?

Decision: 6 votes for Kasky, 3 vote(s) against

Legal provision:

The Court did not answer the question dismissing the writ of certiorari as improvidently granted. Justice Anthony M. Kennedy dissented. Justice Stephen G. Breyer, joined by Justice Sandra Day O'Connor, dissented. Justice Breyer argued that no jurisdictional rule prevented the Court from decided the case and that "delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on."

docs

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http://reclaimdemocracy.org/nike/

Kasky v. Nike — Do Corporations Have a Right to Lie?

Introduction

Kasky v. Nike (Nike v. Kasky at the U.S. Supreme Court) involved the Nike Corporation’s appeal of an April 2002 California Supreme Court ruling. The California court rejected claims by Nike’s lawyers that the First Amendment immunized the company from being sued for an allegedly deceptive public relations campaign. A trial on the merits was precluded by the parties’ settlement following the U.S. Supreme Court’s decision to send the case back to a lower court.

This page presents all sides of the Nike case and the larger issues ofcorporate or commercial speech. We created this page to examine the judicial creation of constitutional rights for corporations and to raise awareness of the far-reaching negative effects that precedent has for democracy and our lives.

We reject the claim that the authors of our Bill of Rights intended to define persons as including corporations (see Corporate Personhoodpage for more on this). In addition to provoking public debate, we are working to persuade the American Civil Liberties Union to halt or reverse its practice of advocating for corporate personhood (the ACLU board backed Nike in court, though they offer no evidence of member support). We believe such advocacy ultimately undermines the critical human rights work for which the ACLU was founded (more below).

Facts, Reporting and Items Offering Competing Views

Just the Facts - Background on the events that led to the lawsuit (as stated by California appeals court)
Statement by the Northern California ACLU (with our responses to points raised within) – This is a good introduction to opposing arguments on treating corporations as persons. Our FAQ’s also presents direct point/counterpoint on the case.
A detailed New York Times report preceding oral argument at the U.S. Supreme Court.
On June 26, 2003, the Supreme Court dismissed Nike’s challenge of California law that allows citizens to sue for deceptive advertising. News coverage of the Court’s Decision

Arguments Against Nike’s Claimed “Right to Lie”

First Amendment Follies: Expanding Corporate Speech Rights by Robert Weismann
Our sign-on letter to the ACLU, urging its directors to stop advocating corporate personhood. This letter offers detailed argument and links to our endorsement form to urge the ACLU to change its position.

Arguments for Nike or for Corporations to enjoy Bill of Rights Protections

Within days of Ohio Representative Dennis Kucinich circulating a“dear colleague” letter, urging them to sign on to the Congressional brief in support of Kasky, all five Oregon representatives–Nike’s headquarters–circulated a letter arguing for Nike and asking colleagues not to sign on.

Commentaries Not Explicitly Advocating for Either Party

A critical response to media corporations’ advocacy by Cynthia Cotts (Village Voice)
On the Wings of Nike: A streamlined approach to the commercial speech doctrine by Anne Cunningham and Craig Greeman. Published by Communications and the Law (35 pp analysis-pdf)

Legal Briefs for Marc Kasky

Note: all briefs linked on this page are PDFs.

Respondent’s (Kasky) Brief in Opposition filed with U.S. Supreme Court (prior to Court granting certiorari)
Marc Kasky’s Original Complaint
ReclaimDemocracy.org amicus brief to U.S. Supreme Court(submitted by the National Voting Rights Institute).
Amicus Brief from California AFL/CIO to California Court of Appeals
California Attorney General’s brief to state supreme court

Legal Briefs for Nike

Nike Inc.’s Briefs to the U.S. Supreme Court

Nike Inc. Final Brief (62 pp,)
Nike Inc. Petition for Certiorari (asking Court to review CA court decision) (128pp)
Nike Inc. Reply to Marc Kasky’s Brief to the Court (prior to Court’s granting certiorari) (15 pp)

Amici Briefs

Kasky vs. Nike Inc: Court Decisions and Documents

The US Supreme Court decision, with dissent and concurrence
U.S. Supreme Court oral argument transcript
The California Supreme Court decision in favor of Kasky (72pp)
The California statutes under which Nike was sued are printed in the last six pages of Respondent’s (Kasky) Brief in Opposition to U.S. Supreme Court

A Few Significant Court Cases in the Evolution of “Commercial Speech”

First National Bank of Boston v. Bellotti (1978) cleared the way for massive increases in corporate corruption of politics. Spending money to influence politics is now a corporate “right.” Justice Rehnquist’s dissent here is a recommended read.
Central Hudson Gas v. Public Service Comm. of NY * (1980) This oft-cited case concerns a state ban on ads promoting electricity consumption
FEC v. Massachusetts Citizens for Life, Inc. (1986)
Austin v. Michigan Chamber of Commerce (1990) Upheld limits on corporate spending in elections
International Dairy v. Amnestoy (1996) Vermont law requiring labeling of dairy products using BGH is overturned
44 Liquormart v. Rhode Island (1996) State ban on advertising of alcohol prices is struck down

The ACLU’s Support for Corporate Claims to Bill of Rights Protections and Our Campaign to Change It

The ACLU sided with Nike Inc. throughout this case. Its national board cites the position of the No. California ACLU as representing their rationale. That statement is followed by a copy with our responses interwoven: Statement by the Northern California ACLU on Kasky v. Nike.

The ACLU has a controversial history of defending “smokers rights” and “free speech” for tobacco corporations with earmarked funds from those same companies. We consider this to be important information for understanding the background of ACLU policy in this realm. We have no knowledge of the ACLU taking money from Nike Inc.

Former Washington Post reporter Morton Mintz published several in-depth investigations on the issue, like: The ACLU & the Tobacco Companies from Nieman Reports ( 366k pdf file)

Sending hard copy to ACLU is best, but please e-mail us a copy of your letters to any ACLU representative (and send copies of any substantive responses). We also urge you to speak with your state ACLU chapter (see ACLU.org for a listing) and share your communications with us.

On November 20, 2002, the ACLU of Southern California passed a policy on commercial speech that directly contradicts the ACLU of Northern California’s defense of Nike’s alleged right to lie. While this is not a strongly worded policy and it sticks narrowly to the commercial vs. non-commercial speech framing, it is a great first step in provoking needed debate within the ACLU.

Background on the “Sweatshop” Dispute

While we addressed the Constitutional issues in this case and not Nike’s practices, we offer these links for those seeking background on the underlying issue.

Nike CEO Retracts Donation to U. of Oregon in Retaliation

See our Corporate Personhood Page for much more related material