In the most self-serving press release category, I received the following from a group of public relations professionals about the Supreme Court's handling of the Nike "free speech" case. In brief, Nike was sued because they made statements that the suit alleges were misleading about Nike's manufacturing operations. Individuals are more free than corporations (the Supreme Court affirmed by not hearing the case) to make statements about themselves, even if those statements turn out to be false or misleading.There's been a judicial and legislative trend throughout the last century to bestow more and more human and civil rights on corporations making them into more and more ersatz people. However, corporations, especially large ones, have resources that make it ever more important that there are checks and balances on their behavior, as government is clearly incapable of dealing with large companies on their own ground. My old publisher Ted Nace, who founded Peachpit Press, has written a book called Gangs of America due out later this year on this very topic. Here's the press release (and here's a good story on the case): PRSA 'Devastated" that Supreme Court Fails to Clarify 'Free Speech' in Nike Case NEW YORK, NY (June 26, 2003) The Public Relations Society of America (PRSA) said today the U.S. Supreme Court's failure to address questions of established protections for free speech by corporations and other institutions demonstrated that the high court is out of touch with realities of complex communications in a global society.
The case, Nike v. Kasky, results from a California lawsuit over a public relations campaign launched by the sporting goods manufacturer to combat allegations that some of its products were made in offshore sweatshops. Rather than issuing a ruling clarifying whether such corporate publicity campaigns enjoy First Amendment protections, the Supreme Court voted 6-3 and issued an unsigned order that stated it should never have taken the case. "We're devastated," said Reed Bolton Byrum, APR, PRSA's 2003 president and CEO. "Those of us who counsel companies in gathering and disseminating information related to their businesses are extremely disappointed the nation's highest court passed up an opportunity to render a galvanizing decision on the issue of free speech rights for institutions. "This indecision represents the Supreme Court's naivet� and ignorance in fathoming the complexities and significance of communications in today's society," Byrum said. Because of the Supreme Court ruling, the Nike case now goes back to the lower court in California where the Oregon-based sporting goods manufacturer was first sued. The U.S. Supreme Court ruling leaves untouched a previous decision by the California Supreme Court. "That California ruling imposes the severest limits on speech for any organization that does business in California and it does serious damage to the guarantee of freedom of speech," Byrum said. "It opens the door for any disgruntled former employee or any individual with an ax to grind to seek monetary damages from any organizations whose actions they claim to be totally commercial. Such potential for harassment by litigation will effectively prevent most organizations in this country from participating in any kind of significant public discussion and debate on issues vital to our society or even participating in activities that support charitable or community works. "What this means is that companies must stand mute in the face of criticism, however unwarranted, or risk further damage to reputations and business interests in frivolous lawsuits," said Byrum. "It is a shame that the U.S. Supreme Court will let stand a ruling that implies that our institutions are merely self-serving commercial enterprises that provide no valuable input to the vital issues of our society. "The court failed to act decisively to clarify the established right of corporations to fully and freely contribute to the open flow of information," said Byrum. He also predicted that, by remanding the case to the California court, the U.S. Supreme Court's lack of definitive action will generate a plethora of lower- court cases on corporate and commercial speech around the country and will ensure that the nation's highest court will subsequently have the issue before it again in a later term. "In our society we're seeing an increasing number of attacks on corporations and institutions from a widening variety of sources," said Byrum. "At the same time there is greater demand from the public and government for corporations to operate transparently including speaking and providing information of matters that affect them directly. The court should have used this opportunity to clear up the ambiguity resulting from the 50-year evolution of its commercial speech doctrine. Instead, I fear that the court has done little more than encourage and established legalistic free-for-alls in state and lesser federal courts." PRSA was one of more than 150 professional organizations, media companies and other entities that filed "friend of the court" briefs in the case. The common thread uniting these disparate organizations the Bush administration, the U.S. Chamber of Commerce, the American Civil Liberties Union, organized labor, media companies and major corporations was their interest in preserving free speech rights guaranteed in the First Amendment to the U.S. Constitution. Nike v. Kasky stems from attacks in the late 1990s by activists against the Oregon-based sporting goods manufacturer's overseas labor practices. After Nike defended itself through press releases, advertorials and other media, a self-styled California consumer advocate, Marc Kasky, filed a lawsuit against Nike alleging that Nike, which sells products in California, possibly had misled consumers there with its global public relations campaign. Although the California court did not consider whether Nike had, in fact, misled anyone, it did rule 4-3 that Nike's responses were commercial speech subject to regulation and restrictions of California's consumer protection and truth in advertising laws. In its "friend of the court" brief, PRSA stated that the California court's ruling, if allowed to stand, would cover "any (corporate) utterance where consumers might be present or might be expected to receive the information through media outlets." The California decision could mean, the brief asserted, "corporate speech will disappear from every medium of communication with the public" and "will have an unfair, unprecedented and materially chilling impact on the ability of companies and [others] to speak on issues of public concern." In arguments before the Supreme Court in April 2003, Kasky's attorney conceded that it would be virtually impossible to separate corporate "speech," which is designed solely to secure a commercial transaction, and speech for other purposes. In fact, under the broad definition of commercial speech in the California ruling, a cosmetic's company's work on breast cancer awareness or a women's clothing retailer's work to prevent spousal abuse would be considered overlapping commercial speech. "Corporations, like people, should enjoy equal protection under the law. By this decision rendered under the pretext of curbing misleading advertising, this case sets a dangerous precedent that will not only keep companies from defending themselves but will also open truly public-spirited organizations to legal attacks from those who do not agree with them," said Byrum. The heart of the case was whether corporations like Nike would enjoy the same freedom of speech in defending themselves against warranted or unwarranted criticism and accusation as do accusers and critics. The California decision, Byrum said, "covered any factual statement, including letters to the editor and opinion editorials, statements published on Web sites, media presentations, press releases, television appearances indeed, any public statement made by a company about a topic related to what that company does." The Public Relations Society of America is the world's largest organization for public relations professionals. Its nearly 20,000 members, organized into 116 Chapters, represent business and industry, technology, counseling firms, government, associations, hospitals, schools, professional services firms and nonprofit organizations. Chartered in 1947, its primary objectives are to advance the standards of the public relations profession and to provide members with professional development opportunities through continuing education programs, information exchange forums and research projects conducted on the national and local levels.