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Free Speech Decision

June 26, 2003 at 12:00 AM EDT
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JIM LEHRER: Now, back to Jan Crawford Greenburg, for the court’s other major action of the day, it involved Nike and the issue of free commercial speech. Now again, set the facts for us here.

JAN CRAWFORD GREENBURG: Sure. Nike was facing a tremendous amount of criticism in the mid 1990s about working conditions and wages in some of its shoe factories in Southeast Asia. So it took out a series of newspaper ads and issued some public statements, wrote letters to university administrators whose athletic departments are big buyers of Nike shoes to defend itself and assert that it was acting fairly and honorably.

A California activist, Mark Kasky, sued Nike under a novel California law that allowed him to come in and almost act like a state attorney general, a private attorney general, and it said that… he said that Nike had made these false statements and they were therefore violating California’s unfair competition and false advertising laws.

JIM LEHRER: Okay. Now, take us the route….

JAN CRAWFORD GREENBURG: The legal route.

JIM LEHRER: The legal route to the Supreme Court.

JAN CRAWFORD GREENBURG: Nike said, “Listen, we have got a First Amendment right to defend ourselves. This is a matter of public debate. We’re defending ourselves. We’re participating in this public debate. You must dismiss the lower courts, you must dismiss this case based on our First Amendment rights.”

The California Supreme Court declined to dismiss this lawsuit against Nike asserting that the case could proceed to develop some of the factual issues and ruling that Nike was speaking almost as an advertiser, that it’s a speech that Nike engaged in was commercial in nature — therefore, not entitled to the heightened protection that other forms of speech might get, like political speech, speech that individuals would make.

JIM LEHRER: Yeah. And then….

JAN CRAWFORD GREENBURG: And it made it to the Supreme Court. Nike took it to the Supreme Court.

JIM LEHRER: Nike took it to the Supreme Court. The court didn’t really rule on it today. Tell us what they did.

JAN CRAWFORD GREENBURG: Well, this was a very closely watched case because this is an issue of tremendous importance not only to corporations but even media organizations that weighed in and said the court should rule for Nike because a ruling against Nike might make companies less likely to even talk to the press for fear they could get sued.

So this was very closely watched, and today the court disappointed everyone because it didn’t rule on the case. It said we shouldn’t have taken this case. It’s too early. The California Supreme Court and the lower courts need to think about some of these issues a little more, develop some of the factual issues at stake, perhaps explore some of the arguments about whether or not a citizen like Mark Kasky who admits he’s never bought a Nike shoe, whether he can come in and make this kind of lawsuit. So the court just sent it back to the California courts and put off that extraordinarily important issue of whether or not this speech is commercial.

JIM LEHRER: In doing so, they did issue a statement. The court did issue a statement, did it not?

JAN CRAWFORD GREENBURG: Sure. Several justices, in fact, Justice John Paul Stevens joined by two other Justices issued a statement explaining why he thought that this case was not properly before the court at this time and explaining that it was these extraordinarily important novel issues and the court was taking it too soon,

Justice Breyer and two other Justices also wrote separately saying the court should have taken the case, but those Justices taken altogether seemed to indicate that at least a majority of the justices on the Supreme Court do see some constitutional problems here.

And so they did in some ways signal to the California courts that now must look back into this issue that Nike may have a… an interesting argument that this speech was not completely commercial in nature and that Nike was entitled to some protection to engage in this ongoing debate.

JIM LEHRER: In a nutshell, this is going to come back probably but years from now? Is that a safe prediction?

JAN CRAWFORD GREENBURG: The legal system, you know, the wheels turn slowly. Obviously he sued in 1998. What is it? 2003.

JIM LEHRER: He has yet to have a real trial on the merit.

JAN CRAWFORD GREENBURG: That’s right.

JIM LEHRER: The court is saying do that and let’s come back maybe.

JAN CRAWFORD GREENBURG: Let’s see if the statements are false. That’s never been determined by a lower court.

JIM LEHRER: All right. Thank you very much, Jan.

JAN CRAWFORD GREENBURG: You’re welcome.