Can a corporation such as Nike defend its actions in the public square without being charged in court with making false or misleading statements?
That's essentially what's at stake Wednesday, as the Supreme Court takes up arguments in a case that may refine the legal definition of "commercial speech" and whether in some instances it should be protected as political speech under the First Amendment. (See story.)
The high court is being asked to decide if an anti-child-labor activist can file suit against the world's largest athletic-shoe manufacturer on the basis of a claim that Nike made misstatements about the poor working conditions in its subcontracted shoe and clothing factories in various Asian countries.
The California Supreme Court found Nike's responses to the allegations - made in press releases, on its website, and elsewhere, but not in its advertising - to be commercial speech. It ruled that as such, the speech did not merit constitutional protection against the claim that consumers who bought Nike shoes were "harmed" by the alleged false statements, and the suit could proceed.
Nike took the case to the US Supreme Court, claiming commercial speech must "propose a commercial transaction" (the high court has ruled similarly before), and that it deserves free-speech rights when it comes to defending itself against critics.
Americans should watch this case closely. If the court rules against Nike, the upshot could mean that public nonadvertising statements by corporations, and other groups whose speech often has a commercial aspect might well be curtailed. Public discourse could be stifled, and access to important information could be harder to obtain, as companies fear lawsuits for, say, any press release someone deems misleading.
Granting Nike the protections afforded by the First Amendment, especially as it works to defend itself in an issue of high public import, goes beyond the mere commercial aspect of selling shoes. It provides a vehicle that allows a company to assert (or argue), in this instance anyway, its social responsibility. And it puts a firm on a more level free-speech playing field with those who see the issue differently.
Critics say Nike shouldn't have a constitutional "right to lie." Yes, about its products. But on how it runs its business? Companies like Nike ought to be able to publicly defend themselves, without fear of legal reprisal, at the very onset of public debate.