National Legal Issues
Nike Says Defending Sweatshop Accusations Not Commercial Speech, So It Can "Just Do It"
The Supreme Court of the United States recently heard oral arguments in Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. granted, 71 USLW 3319 (U.S. Jan. 10, 2003) (No. 02-575). Nike is appealing the California Supreme Court's decision that the company's public relations efforts to counter accusations its foreign factories are sweatshops constitute "commercial speech" that is subject to the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.
Oh, Those Wacky Transcripts
Pro Se Defendant: Did you get a good look at me when I stole your purse?
Victim: Yes, I saw you clearly. You are the one who stole my purse.
Pro Se Defendant: I should have shot you while I had the chance.
The plaintiff in this matter brought a "private attorney general" action in which he alleged that Nike had engaged in deceptive advertising in the campaign. Nike contended that it had not engaged in commercial speech but, instead, had communicated concerning matters of public importance, and, therefore, the First Amendment protected its speech. The California Supreme Court held that it was commercial speech because Nike was engaged in commerce, the intended audience of the speech is likely to be actual or potential buyers of Nike's goods, and the speech was likely to influence customers in their commercial decisions.
Nike argued before the Supreme Court that the speech failed to meet the applicable judicial tests for commercial speech because it did not merely propose a commercial transaction nor did it relate only to the economic interests of the speaker and its audience. Also, the speech did not exhibit two of the three principal features that, in combination, indicate that speech is commercial: (1) advertising format, (2) explicit reference to a product, and (3) economic motivation. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 69 (1983).
The plaintiff counters that Nike's advertising on the sweatshop issue gave consumers information to rely on in deciding whether to buy the company's products because many consumers do not want to buy goods made under sweatshop conditions. The plaintiff likened Nike's speech to the "dolphin safe" claims that tuna canners advertise on their products.
A decision is pending in the case, which spawned 27 amicus curiae briefs.