Nike vs. Kasky: corporate accountability, free speech at forefront

Although oral arguments in the Nike vs. Kasky free speech case aren’t slated to be heard by the U.S. Supreme Court until later this month, memos from congressional representatives are already flying around Capitol Hill for both sides.

Congressman Dennis Kucinich, D-Ohio, started the paper chase when he fired off two different memos to his congressional colleagues urging them to join him in an amicus (“friend of the court”) brief on behalf of Mark Kasky, a California activist who sued Nike for lying when it denied reports that workers were mistreated in its Asian factories.

The California Supreme Court ruled in favor of Kasky by a narrow margin, 4-3, citing that because a company’s public statements about its operations might persuade consumers to buy its products, those statements must be treated as commercial advertising, which limits First Amendment protection. The U.S. Supreme Court’s decision in the case may help clarify whether a company’s public statements about its operations are entitled to the same constitutional protections that its critics enjoy.

In response to Kucinich’s letters, five Oregon congressional representatives — Earl Blumenauer, Peter DeFazio, Darlene Hooley, Greg Walden and David Wu — sent out their own rebuttal saying Kucinich’s memos “fail to tell the whole story.”

Kathie Eastman, press secretary for Congressman Blumenauer, whose office initiated the memo responding to Kucinich’s letters, told SNEWS, “The main reason (the Congressmen and Congresswoman) did the letter was because they felt that there were some inaccurate statements in the Kucinich (memos) that he sent around. They wanted to make sure that their congressional colleagues knew that the case wasn’t just about Nike and a corporation. It was about this whole issue of free speech and there were all these other groups that were interested in it, and just make sure (their colleagues) had all the information about it.”

The Oregon representatives’ joint statement read, in part: “We have not always agreed with each other on matters dealing with international trade and globalizations,” the Oregon representatives wrote in the joint statement. “But we do agree that we want a full, open and transparent debate about these issues and we want corporations, labor unions and other non-governmental organizations to be fully engaged on these matters and not hindered by a single state’s limitation of the protection given by the First Amendment,” which “will ensure that consumers receive complete and accurate information.”

Titled “Do Corporations Have a Constitutional Right to Lie?”, Kucinich’s memos addressed whether Nike’s statements in letters to the editor of major U.S. newspapers are protected by the Constitution as free political speech or as commercial speech which has less First Amendment protections.

“It is critical that the Supreme Court does not severely narrow the definitions of commercial speech, giving corporations greater reign to make false claims to consumers and the public about their products, working conditions and corporate philosophy,” Kucinich said in his memo.

Between his anti-war agenda and his bid for presidential candidacy, some have asked why Kucinich cares about Mark Kasky and Nike.

Doug Gordon, Kucinich’s press secretary, told SNEWS, “The congressman concentrates on lots of things. It’s not just foreign policy. He’s running a full slate of issues, including universal health care, protecting social security, and for his 30-plus years of politics he’s always had an interest in corporate accountability and consumer protection, which is exactly what this is.

“Since the 1890s, corporations have been fighting to be considered under the law as ‘persons,’ it’s something that concerns the congressman and he’s been working on it. If corporations were considered people, they’d be able to claim all the constitutional protections that you and I are afforded. They could be protected from illegal searches, from self-incrimination, and relevant to this case, all their statements could be protected under the First Amendment. These are concerns that the congressman has. Corporations are a legal entity created by the government, so he believes that the government has a right to regulate,” Gordon said.

The Oregon representatives said in their memo: “Pure and simply, this case IS about whether corporations, labor unions and other non-governmental organizations have the ability to participate in the public debate on issues as vast as globalization, protection of environment, diversity and other important issues without the threat of being sued.”

They quoted four organizations that have written amicus briefs on Nike’s behalf to illustrate their points. Nearly 60 groups, including CBS, The New York Times, Microsoft and the ACLU, have written briefs to the Supreme Court in favor of Nike’s rights. Blumenauer’s press secretary Kathie Eastman said the representatives would not be writing a brief on Nike’s behalf or taking any other action.

Kucinich’s brief, written by USC law school Constitutional scholar Erwin Chemerinsky, was sent to the Supreme Court on Friday and three other congressional representatives signed on to it — Bob Filner, Bernie Sanders and Corrine Brown — as well as the groups Public Citizen, the Sierra Club and Women’s International League of Peace and Freedom.

The Supreme Court will hear oral arguments for Nike vs. Kasky starting April 23.