Monday, September 15, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Free speech takes a hit

Nike pays up rather than fight lawsuit regarding commercial speech

Nike Inc. has agreed to pay $1.5 million to a worker rights group to settle a commercial free speech case it took to the U.S. Supreme Court.

Marc Kasky, a San Francisco labor activist and professional gadfly, sued the Oregon-based athletic shoe and clothing giant, accusing it of false advertising.

Through the 1990s, unions and liberal groups castigated Nike for allegedly using sweatshop or "slave" labor in Asian plants, run by subcontractors, where workers make tennis shoes and athletic wear with the distinctive Nike swoosh logo.

The company used press releases, op-ed articles and letters-to-the-editor to defend its labor practices ... until Mr. Kasky filed his suit, under a California law which allows consumers to argue that denials like Nike's constitute "consumer fraud," so long as the plaintiff contends they include "false statements of fact."

The company countered that because it was engaged in a public debate over issues of policy, its communications were protected by the First Amendment.

But the California Supreme Court ruled Kasky could proceed with his suit, prompting the company to seek a review by the U.S. Supreme Court.

The high court heard oral arguments, then dismissed the case in June, on the grounds it would be premature to issue a ruling, given that California courts has not yet ruled in the case, themselves.

Run through such a legal wringer, its understandable that Nike executives chose to pay up, taking the cheapest way out of a legal morass to which they and their stockholders should never have been exposed, in the first place.

But the settlement is bad news for free speech in America, especially when we consider that this "Fair Labor Association" -- which will now have an additional $1.5 million in shoe sales money to continue its mischief -- was formed in 1999 by the protectionist Clinton administration.

The First Amendment has no language that specifies "except for commercial speech." When did capitalists become second-class citizens in this land of the free? All Americans should have the same freedom to aggressively make their case on political issues of the day, whether or not they're involved in business for profit.

And here's hoping the high court finds and seizes an early opportunity to say so.