Nike v. Kasky :: The Center for the Advancement of Capitalism

Nike v. Kasky
In 1998, San Francisco activist Marc Kasky sued Nike, Inc. under California's private attorney general statue, claming that editorial advertisements Nike bought defending its labor practices may give people an unjustifiably favorable view of the company. Two lower courts threw out Kasky's suit on First Amendment grounds, but in a 4-3 decision, the California Supreme Court reversed, holding that Nike's speech was commercial, and thus did not rate First Amendment protection.

'Nike' means ‘victory’ no more
by S.M. Oliva
In settling the suit brought against it by anti-corporate activist Marc Kasky, Nike has abandoned its right to free speech. (09-12-03)
» Read the Article

CAC to the Supreme Court:
Defend Businessmen's Right to Free Speech
In its amicus curiae brief to the US Supreme Court on Nike vs. Kasky, the Center asks the Court end the distinction between political and economic speech that squelches a businessman's right to speak before the public.
» Press Release
» Read the Center's Brief
Amicus in support of Nike on the Merits (Filed 02-28-03)
» Read the Center's Brief
Amicus in support of Nike's Petition for Writ of Certiorari (Filed 11-15-02)

Nike, Free Speech and the Constitution
By S.M. Oliva
Nike v. Kasky presents the Supreme Court with an opportunity to undo the constitutional damage resulting from the so-called “commercial speech doctrine,” the Court’s test for deciding whether self-interested speech is entitled to First Amendment protection.
» Read the Article

Timeline of Commercial Speech Cases
Prepared by S.M. Oliva
The commercial speech doctrine has its roots in the 1942 Supreme Court decision Valentine v. Chrestensen. which banned the distribution of commercial handbills on city-owned streets. Fifty years later, the modern commercial speech doctrine has grown into a body of law that weakens the protection afforded economically self-interest speech.
» Read the Timeline

:: Nike v. Kasky Briefs

The US Supreme Court granted Nike's petition for writ of certiorari on January 10, 2003. Briefs to the Court in support of Nike, or in support of neither party, were due on February 28, 2003. Briefs in support of Marc Kasky were due April 4, 2003.

ORAL ARGUMENTS

On April 23rd, the Supreme Court heard oral testimony from Laurence Tribe, representing Nike, Solicitor General Theodore Olson, representing the United States, and Paul Hoeber, representing Mark Kasky.
» Download the Transcript

PETITIONER'S MERIT BRIEF

» Nike, Inc., et al.
Argues that California may not regulate speech on “matters of public importance” that is unrelated to regulation of actual commercial transactions.

MERIT BRIEFS OF OTHER ORGANIZATIONS
Other briefs in support of Nike:

» American Civil Liberties Union
Argues that the commercial speech doctrine cannot be extended to Nike’s actions under the First Amendment: “In our system of government, courts are not arbitrators of truthfulness or probity, except in cases involving product advertising or where reputational interests are at stake.”

» Association of National Advertising et al.
Argues that Nike’s speech is fully protected by the First Amendment, regardless of whether the speech is “commercial” or not. ANA also claim California’s unfair competition law is unconstitutional as applied to this case because it is “vague and overbroad and allows a private party to sue without any showing of harm.”

» Business Roundtable
Argues that a speaker’s economic motivation should not diminish the level of First Amendment protection afforded: “The California Supreme Court incorrectly relegated corporate speech on matters of public policy to a lower level of First Amendment protection than that afforded to other speech on the same issues. Commercial actors have in fact provided unusually valuable contributions to the most important public debates when – and especially when –addressing issues that bear directly on their own economic interests.”

» Center for Individual Freedom
Argues the commercial speech doctrine should be “pared back,” and offers several suggestions for replacing existing doctrine with more consistent First Amendment analyses.

» Civil Justice Association of California
Argues California’s unfair competition law violates due process by failing to provide business with adequate notice of prohibited conduct, submitting defendants to repetitive lawsuits for the same conduct, and by delegating governmental power to private persons. Among other positions, CJA argues that granting Kasky standing to sue on behalf of the state violates the Constitution’s guarantee of a “republican form of government” to every state, a position CAC raised in its brief at the petition stage in this case.

» Council of Public Relations Firms et al.
Argues that the lower court’s decision would chill corporate public relations activities by submitting every factual statement to judicial review.

» ExxonMobil et al.
Argues that Nike’s speech is not subject to the commercial speech doctrine because it “plainly addresses matters of public concern.”

» Forty Media Entities
Argues the lower court’s decision would “inhibit the media’s ability to report on issues of public concern regarding corporate America,” and that the commercial speech doctrine is unnecessary here because “media coverage adequately informs consumers regarding companies’ controversial business practices.”

» National Association of Manufacturers
Argues that the speaker’s economic motivation does not diminish the protection of their speech on public issues.

» Pfizer Inc.
Argues the Court should establish a test for “balancing” the government’s interest in regulating the marketplace with a company’s right to defend itself.

» Pacific Legal Foundation et al.
Argues the Central Hudson test for analyzing commercial speech is no longer relevant given the merging of advertising and marketing with other forms of “noncommercial” speech.

» Products Liability Advisory Council
Argues the lower court’s decision “creates a new category of lucrative lawsuits that primarily will benefit plaintiffs’ lawyers,” and which will encourage plaintiffs’ attorneys to use the media to influence the outcome of litigation.

» SRiMedia and CoreRatings
Argues the lower court’s decision would subject European companies to lawsuits if they follow the European Union’s “corporate social responsibility” policies.

» The Thomas Jefferson Center
Argues that treating Nike’s speech as “commercial speech” constitutes viewpoint discrimination under the First Amendment.

» U.S. Chamber of Commerce
Argues the commercial speech doctrine only applies to product or service advertising, and that the lower court’s decision “would result in the immediate and nationwide suppression of speech on important public policy issues.”

» United States of America
The Solicitor General argues the First Amendment does not sanction judicial relief for “allegedly false statements that have concededly caused [Kasky] no harm whatsoever.”

» Washington Legal Foundation et al.
Argues the commercial speech doctrine only applies to product or service advertising, and that the lower court’s decision “would result in the immediate and nationwide suppression of speech on important public policy issues.”

In support of neither party

» AFL-CIO
The First Amendment is intended to foster debate on public issues that is uninhibited on all sides, not debate in which one side is inhibited by state regulation that does not apply to the other side.

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