Thursday, April 24, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Silencing corporations

Restore full rights to 'second-class speech'

Ever-creative anti-capitalists in the California legislature a few years back enacted "consumer protection" laws that allow individual citizens to serve as "private attorney generals" and file lawsuits in the public's behalf, demanding that corporations hand over some of their profits based on claims they've engaged in "unfair business practices" or "false advertising."

On Wednesday, the issue landed in the lap of the U.S. Supreme Court, in the matter of a lawsuit brought against Nike by a 59-year-old private citizen of California who claims that the shoe giant fibs.

The case began when a spate of media reports questioned Nike's labor practices in overseas factories. The company responded with a flurry of press releases, letters to newspapers and direct statements to university athletic directors, contending Nike not only treats its overseas workers well, but typically pays them better than local wage laws require, offering them quality health care and protecting them against labor and sexual abuses.

San Francisco resident Marc Kasky decided the firm was lying, and filed his lawsuit on behalf of everyone in California, claiming consumers were being duped.

Last May, a sharply divided California Supreme Court ruled Nike could indeed be sued under state consumer protection and false advertising laws, because its statements were directed at its customers and dealt with messages about its business operations -- the kind of specially selected "commercial speech" which enjoys less court protection than "regular" speech.

Nike responds it wasn't shilling the merits of its basketball shoes, only responding to reports of labor abuses in other countries in an open, public debate about how foreign workers benefit from the expansion of the global economy ... precisely the kind of discussion the First Amendment is designed to protect.

Friends of the court who have filed briefs on Nike's behalf -- including the Bush administration, the American Civil Liberties Union, dozens of media outlets, and the AFL-CIO -- correctly warn that if the high court allows such suits to proceed, the chilling effect on free speech could be so severe that companies and organizations might consider themselves barred from saying anything in their own defense for fear of making a statement of debatable accuracy and thus finding themselves hauled into court.

It's often said that free speech is not absolute. Thus the existence of libel and slander laws.

But the high court started down a dangerous road when it pretended it could whittle down a limit on government power as clearly stated as the First Amendment, pretending to find written between the lines, "Except for the speech of greedy corporations trying to sell products or protect the value of their brands."

Fortunately, the solution's not so hard. The court need only go back and read the "owner's manual." It's called the Bill of Rights.