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Nike, Free Speech and the Constitution
By S.M. Oliva
The Center for the Advancement of Capitalism

Nike v. Kasky presents the Supreme Court with an opportunity to undo some of the constitutional damage resulting from the so-called “commercial speech doctrine,” the Court’s test for deciding whether self-interested speech is entitled to First Amendment protection.  Under the current doctrine, speech may be assigned a lesser amount of constitutional protection if it meets certain tests that measure the speech’s “commercial” character.

The initial understanding of “commercial” speech was that it proposed nothing more than a commercial transaction—in other words, advertising.  The Court reasoned that since one could readily determine whether advertising was true or false, the government could regulate advertising to ensure it remained truthful.  The question then became how to deal with advertising that didn’t necessarily showcase a particular product.  The Court said mixed messages should be analyzed in order to determine whether they are “commercial” speech or not. 

This is what led to the California Supreme Court’s decision in Kasky v. Nike, the forerunner of the current appeal.  In the Nike case, the question that thus far hinged on whether advertisements Nike bought in California newspapers to defend its labor practices from critics constitute "commercial speech" and are therefore not deserving of First Amendment protection.

Because of the commercial speech doctrine, the lower court faced a mandate to label Nike’s speech one way or the other, with no room for any ground that respected Nike's right to speech with economic motivations.  The California justices chose to label it “commercial” speech, because even though Nike’s defense of its labor practices did not directly advertise a product, the speech did foster a positive corporate image of Nike, which in turn might influence consumers to purchase the company’s products.  Thus, the California court held that mere commercial motive was enough to remove full First Amendment protection from a company’s speech.

Of the current Supreme Court justices, six are committed to ensuring the commercial speech doctrine itself remains good law. At the far end of the spectrum is Chief Justice William Rehnquist, who seems to believe all restrictions on commercial speech is constitutional.  The other five justices all cling to some version of “testing”; that is to say, they believe all speech can be neatly divided into “commercial” and noncommercial by creating a set of judicial rules.  Justice Sandra Day O’Connor is the unofficial leader of this faction, although Justice Stephen Breyer has made himself heard more recently.  The two justices actually differ in approach: O’Connor insists on a litany of tests, but seems to always rule in favor of expanding commercial speech protections; Breyer, in contrast, is more sympathetic to the whims of government regulators.  Justices Kennedy, Souter, and Ginsburg fall somewhere between the O’Connor and Breyer positions.

The three remaining justices—John Paul Stevens, Antonin Scalia, and Clarence Thomas—all support paring back the commercial speech doctrine, albeit for very different philosophical reasons.  Stevens is a staunch First Amendment advocate, and he takes his cues from the late Justice Harry Blackmun, who authored several key opinions in the 1970s that reduced the scope of “commercial” speech.  At the same time, however, Stevens seems content to accept the existing tests imposed by the O’Connor majority, if for no other reason than these tests can be manipulated to produce Stevens’ desired outcome in the run of cases.

Scalia and Thomas form the abolitionist wing of the Court when it comes to commercial speech, yet even these two conservative icons differ on reasoning.  Thomas’s position is simple and elegant: there is no historical or philosophical evidence that the Constitution ever considered “commercial” speech worthy of lesser protection than political speech.  Thomas properly assigns the burden of proving the distinction to government authorities, whereas doctrine assumes the distinction is a matter of common sense.  Scalia, meanwhile, expresses sympathy for Thomas’s intellectual certitude, but he remains weary of simply abolishing the Court’s commercial speech precedents.  Instead, Scalia insists on seeing some historical evidence that explains the views of free speech protection held by state legislatures at the time the First and Fourteenth Amendments were adopted.  In the absence of this proof, Scalia is content to let the Court’s existing precedents remain intact for fear of creating “new” rights that aren’t part of his constitutional design.

Scalia’s originalist ideology proves troubling, and his commercial speech views demonstrate why.  For Scalia, rights must be proven through historical evidence; they cannot be adduced from any universal abstraction or fundamental principle.  This puts Scalia in the company of men like Robert Bork, who reject individual rights out-of-hand, and argue that rights exist at the pleasure of social whim or historical custom.  In other words, one cannot exercise a right that America’s founders did not recognize; to argue otherwise would render the Constitution a meaningless, subjective document.  This in a nutshell is originalism.

What Bork and Scalia refuse to acknowledge is that the Constitution was intended to be a flexible document, at least in the sense that it provided a general set of rules designed to implement very specific principles.  Those principles were expressed not in the Constitution, but in the Declaration of Independence, which recognized the “inalienable” rights of life, liberty, and pursuit of happiness.  From these fundamental rights—which are nothing more than universal abstractions—derive other liberties men must enjoy in order to fully exercise their basic rights.  For example, property rights are essential, because property is what enables man to give form to his right to life.  Property rights are derivative, but that doesn’t make them any less essential.

Similarly, speech rights are not “fundamental” in that they are a universal abstraction, but they are essential to man’s life.  Man’s means of survival is his mind, and speech rights protect his ability to express his thoughts without prior restraint by the government.  The issue in the Nike case, then, is whether the commercial speech doctrine affects an essential right of all men.

The originalists argue that “commercial” speech is not an essential right, because the Constitution’s Framers did not deem it worthy of such protection.  To an originalist, historical evidence is paramount.  And under that theory, the originalists have a point.  The First Amendment’s drafters were principally concerned with protecting speech in the political realm, not with ensuring a company’s right to advertise or defend its commercial practices.  At the same time, however, the Framers didn’t qualify the First Amendment’s protections either, which indicates they were not aiming to produce a laundry list of rights, but a general statement of principles that would be understood within the context of protecting individual rights.

Still, Justice Scalia and company require some “historical proof” to protect commercial speech, so here it is: “The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  This is the Ninth Amendment to the Constitution.

Traditionally, the Ninth Amendment has been treated as the Constitution’s unwanted stepchild.  Originialists in particular hate the Ninth Amendment because it refutes their entire ideology.  The Founders did not, as originalists claim, intend for society to arbitrarily limit the scope of individual rights.  Instead, the Founders understood that American society would change and evolve over time (abolishing slavery perhaps), and that for the Constitution to remain a valid source of law, the document could not be read with an eye fixated on the past.

This is hardly a radical viewpoint.  When it comes to construing government power most people, including originalists, accept the idea that the Constitution does not narrowly constrain the government’s abilities to only those methods anticipated by the Founders.  For example, the Constitution grants Congress the power to raise an army and navy, yet it says nothing about an air force.  Obviously this wasn’t something the Founders could have fathomed.  Yet if one were to adopt the originalist view of rights, the government should not have any ability to employ a military power outside the methods expressly provided in the Constitution—the army, navy, the state militias, and letters of marque and reprisal.

The reason one does not seriously question the constitutionality of the air force dates back to the Supreme Court’s 1819 ruling in McCulloch v. Maryland.  This legendary case addressed the constitutionality of the Second Bank of the United States.  Maryland officials argued that the Constitution never expressly permitted Congress to charter a bank.  The Supreme Court nevertheless upheld the bank’s charter, holding that the Constitution empowered Congress to “make all Laws which shall be necessary and proper” for carrying out its enumerated powers.  Since the bank’s charter related to Congress’s power to collect taxes and other revenue, and since nothing in the Constitution prohibited the government from chartering a bank, the bank itself was constitutional.

McCulloch articulated an important principle: A constitution is not a municipal code.  It does not prescribe the methods of governance, only the general goals and limits upon government.  The McCulloch court understood that no society can lock itself in place from the moment a Constitution was adopted.  This was Maryland’s mistake in 1819, and it’s the originalist’s error today.

Just as the “necessary and proper” clause grants Congress the ability to adopt “convenient, useful, and essential” methods of implementing its powers, the Ninth Amendment performs a similar function with respect to individual rights.  A right need not be expressly listed in the Constitution or part of some historical practice.  Instead, a right is protected if it’s “convenient, useful, and essential” to the exercise of fundamental rights, and if the exercise of such a right is not preempted by some authority legitimately granted by the government.

In the case of “commercial” speech, advocates claim the government can regulate or prohibit such speech in order to prevent fraud.  Now, preventing fraud is a legitimate government interest, but the commercial speech doctrine does not advance that interest.  The Nike case is a perfect illustration of the problem.  Marc Kasky didn’t sue Nike because they defrauded him—he’s an anti-Nike activist—but because he didn’t approve of what Nike was saying.  He’s trying to use the courts to advance his own political arguments by squelching his opponents, and the commercial speech doctrine lets him do this because it attaches a stigma to speech based on the economic motive.  The doctrine places the burden on Nike to prove it has the right to such speech, rather than on Kasky to establish the government's interest in preventing it.

Even if the First Amendment did exclude commercial speech from its protection—and there’s no evidence it does—the Ninth Amendment would still protect Nike’s right to engage in “commercial” speech, because such speech is “convenient, useful, and essential” in carrying out Nike’s basic economic rights as a corporation.  Nike’s shareholders have the right to engage in business and to defend themselves from attacks on their business practices.  Whether the framers of the First Amendment considered this scenario in 1789 is irrelevant.

Although the Ninth Amendment provides clear proof to support Nike’s case, the company chose not to make this argument.  This is no great surprise, given the relative absence of the Ninth Amendment from case law.  There are two reasons for this.  First, judges often fear the Ninth Amendment as a “Pandora’s box” that will spin out of control if actually used.  Second, lawyers use the amendment improperly in argument, often throwing it out there like a dart in the hopes it will hit the bull’s-eye before an appellate court.  Little effort is made to put the amendment in the proper context described above.  In general, this can be attributed to the fact that American government has moved further and further away from its constitutional roots.  Protecting individual rights is no longer the paramount function of government, even in the eyes of many so-called conservatives.  Today, government is often viewed as an eternal struggle between warring interest groups seeking to employ force against one another with the state’s consent.

That’s certainly what Marc Kasky seems to think.  He views the government as a weapon to smite Nike, a company he would rather go out of business.  Only through the Supreme Court’s error in creating the commercial speech doctrine does Kasky’s case still survive after being dismissed by two lower California courts.  Hopefully the Supreme Court will shut Kasky down for good.

In fact, the Court is likely to side with Nike in this case.  The real question, however, is whether the Court will disavow their commercial speech doctrine, or simply present a ruling narrowly tailored to Nike’s circumstances.  History suggests the latter approach.  The Court dislikes massive shifts in its jurisprudence unless absolutely cornered.  Still, Justice Thomas remains a zealous opponent of the current commercial speech doctrine, and the Nike case may help persuade some of his colleagues that the time is long past to stop making excuses for denying individual rights in the name of phantom governmental interests.

 

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