AFFIRMATIVE action is not the only important issue that the Supreme Court will discuss this session. Later this month, the Court will hear oral arguments in Nike v. Kasky, a case that has resulted from a public relations campaign by the Nike corporation. The campaign aimed to dispel the wide-spread conception that the athletic gear giant uses sweatshop labor. In April of 1998, California resident Marc Kasky sued the Nike corporation under California's consumer protection laws.
But the issue before the Supreme Court is not whether Nike uses sweatshop labor or even whether the corporation lied about it. At issue is whether the public relations campaign qualifies for free speech protection under the First Amendment. Various parties have weighed in on Nike's side, but in the interest of the general public the Court needs to rule against Nike. Granting corporations the right to broadcast misrepresentations or outright lies in the name of "corporate free speech" can only do damage to democracy and open political discussions.
As individuals, we have a right to free speech and free expression guaranteed by the First Amendment, and Nike claims that its public relations campaign contributes to political discussion in a manner that is protected. The corporation claims that a ruling against it would allow the state to restrict the free flow of information that is necessary for debate in a democratic society. However, in the past, the courts have made a distinction between political or artistic speech, which is protected, and commercial speech intended to sell products, which can be regulated.
Kasky and other opponents of Nike claim that the campaign in question was designed to influence how the public feels about the corporation, and thus influence sales. Therefore, they claim, it is commercial speech and any misrepresentations amount to false advertising. If the campaign qualifies for First Amendment protection, however, the actual truth of its claims are irrelevant. Last May, the California Supreme Court ruled 4-3 in favor of Kasky, agreeing that it was commercial speech but making no ruling on the actual truth of the advertisements.
A multi-national corporation like Nike, which spent nearly a billion dollars in advertising and brand promotion in the year prior to Kasky's original lawsuit, has the resources to drown out opposing voices on issues such as its labor policies. Theoretically, the First Amendment ensures that you can enter into a debate with anyone who makes what, in your opinion, are false claims; but along with free speech there is the often-ignored issue of access to an audience. While we are all guaranteed the right to say what we please, no one is required to listen, and we are not guaranteed the right to have our message broadcast.
The government must hold corporations to a standard of truth, as California attempts to do with its consumer protection laws, both in advertising and in public statements. Normal citizens do not have the resources to mount a counter-campaign and enter into the political debate that Nike claims it wants to protect.
Several of the amicus curiae briefs filed claim that designating all corporate communications as commercial speech would have a "chilling effect" on corporate speakers, meaning that they would have to be very careful not to say anything that could be misconstrued to imply a falsity. The corporations are afraid of getting dragged into court over every statement they make. This, according to a brief signed by the major news media conglomerates, would pose "a serious and immediate threat to the media's ability to report on important issues regarding corporate America."
If the government refuses to play a role, only the news media has the ability to prevent Nike from spreading the version of the truth that best helps its profit margin. As far as threats to the media's ability to report go, they should start with the fact that corporate America owns the media: The news channels and newspapers are themselves parts of corporations and conglomerates. General Electric owns NBC, Disney owns ABC, AOL Time-Warner owns CNN, and the list goes on.
"First Amendment" and "free speech" are phrases that usually attract a flurry of attention to court cases. Yet aside from a handful of articles and a few editorials (all in favor of Nike) last January, the public has heard very little. With the media's vested interests here, is it any wonder that it has gone unpublicized? We cannot rely solely on the media to prevent corporations from spinning the truth in whatever way they see fit.
The public relations industry claims it would be shut down, and corporations like Exxon and Microsoft have agreed with Nike's assertion that they would no longer be able to communicate with the public. They are right in asserting that the distinction between commercial and non-commercial speech is not clear enough as it currently exists, but the basic principle of denying First Amendment protection to corporate speech must stand.
What all of these big money corporations and news conglomerates happen to ignore is that this ruling will only prevent them from doing one thing: lying to the public. Americans deserve better than a public relations industry built on twisting reality, and hopefully the Supreme Court will see this.
(Dave Algoso's column appears Fridays in The Cavalier Daily. He can be reached at dalgoso@cavalierdaily.com.)
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