Nike v. Kasky: Politcal Commentary or Commercial Speech?

In the case in question, Nike v. Kasky deals with the right of corporations to speak freely as a commercial entity versus defending social commentary or attack as a political statement. The legal question at hand concerns whether or not commercial expression should be defined to include nearly all of the public statements a company and its employees make concerning their business. Commercial expression was defined in 1942 by the Supreme Court as expression which promotes a transaction (Valentine v. Christensen, 316 U.S. 52, 1942) and was given minimal protection under the First Amendment. Since then, a number of cases have helped shape the amount, type and at what level corporations may speak out freely.

1. Kasky: On the side of the plaintiff, Marc Kasky, is the argument that the truth must be told to the American public, as well as the rest of the world, in order to maintain a social responsibility by corporations. In the original complaint filed on April 20th, 1998 Kasky alleges that Nike Inc. misrepresented facts regarding their manufacturing factories in Asia in order to further their own profits. First Amd. Compl. 18-20, 25, 28, 36-37, 48-50, 55-58, 60, 62-63, 66-67 . The facts of the case are then stated giving statistics and individual violations documented by organizations as well as by reputable individuals and political leaders. The violation of the First Amendment lies in the argument that Nike intentionally lied to the public, hiding facts from the press and also attempting to help boost sales by covering up a public crime. In the complaint, the stated reasons for bringing forth the complaint are specific violations against the California Business & Professional Code in §17200 and §17500 et. seq. However the involvement of the First Amendment specifically lies in the fact that Nike allegedly disregarded the truth that the press was bringing to the public.

D) SHORTCOMINGS OF THE OPPOSING POSITION

2. Nike: In response to the Kasky complaints of the violations of the California Business & Professional Code, their attorney Tom Goldstein defended their public relations actions as public debate, therefore protected as free speech. In the two hearings in 1999, Nike convinced the courts that they should be protected and the case was dismissed. However, the Supreme Court of California ruled in favor of Kasky in 2002 stating that the statements Nike made were in fact commercial speech. The appeal that followed defended them by showing that the statements that they made weren’t aimed at promoting sales of their products but instead to debate an issue of public concern. Thus, their statements could not be regulated as they would be considered free speech. The case of First National Bank of Boston v. Bellotti set the precedent that there would be protection for corporations under the First Amendment, as they would be considered artificial persons when considered in cases of free speech.

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