Nike: First Amendment Rights or False Advertising

Apr 24, 2003
George Anderson

By George Anderson

Are press releases, fact sheets and other communications a company releases to the public protected by the First Amendment or are they simply another form of advertising?

That is the decision facing the nation’s highest court in the case of Nike Inc. v. Kasky, 02-575.

Marc Kasky, a private corporate critic, sued Nike five years ago claiming the company’s defense of its overseas labor practices was false advertising.

The suit, filed in California, has yet to go to court. The state’s Supreme Court, however, ruled that Mr. Kasky could proceed with the suit. Nike then appealed that decision to the Supreme Court.

Mr. Kasky alleges “in 1996 and 1997, Nike made six misrepresentations about its employment practices in the Third World.” According to the Associated Press, Mr. Kasky “cited a letter to the editor of The New York Times, a press release, other documents and a posting on Nike’s corporate Web site.”

Nike’s position is that these forms of public communications are not advertisements but an attempt by the company to clarify its position on its business practices.

Laurence Tribe, representing Nike said the communications represented part of the company’s “argument about why the allegations against Nike are unfounded. It doesn’t have ‘Air Jordan’ on it.”

Moderator’s Comment: Do Nike’s communications in this
case represent a legitimate response to corporate criticism or, if not factually
correct, do they amount to false advertisement? What are the broader implications
of this case?

Theodore Olson, the nation’s solicitor general told the
Supreme Court that it should rule against Mr. Kasky. Failure to do so, argued
Mr. Olson would make it that “anyone with a whim, a grievance and a filing fee
can become a government-licensed censor.”

Mr. Olson is right.  
Anderson – Moderator

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