In 1998, San
Francisco activist Marc Kasky sued Nike, Inc. under California's
private attorney general statue, claming that editorial advertisements Nike
bought defending its labor practices may give people an unjustifiably
favorable view of the company.
courts threw out Kasky's suit on First Amendment grounds, but in a 4-3
decision, the California Supreme Court reversed, holding that Nike's
speech was commercial, and thus did not rate First Amendment
'Nike' means ‘victory’ no more
by S.M. Oliva
In settling the suit brought against it by anti-corporate activist
Marc Kasky, Nike has abandoned its right to free speech. (09-12-03)
Read the Article
CAC to the Supreme
Defend Businessmen's Right to Free Speech
In its amicus curiae brief to the US Supreme
Court on Nike vs. Kasky, the Center asks the Court end the
distinction between political and economic speech that squelches a businessman's right to speak before the public.
Amicus in support of Nike on the Merits (Filed 02-28-03)
Amicus in support of Nike's Petition for Writ of
Certiorari (Filed 11-15-02)
Nike, Free Speech and the
By S.M. Oliva
Nike v. Kasky
presents the Supreme Court with an opportunity to undo 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.
Read the Article
Commercial Speech Cases
Prepared by S.M. Oliva
The commercial speech doctrine has its roots
in the 1942 Supreme Court decision Valentine v.
Chrestensen. which banned the distribution of commercial handbills on
city-owned streets. Fifty years later, the modern commercial speech
doctrine has grown into a body of law that weakens the protection
afforded economically self-interest speech.
Read the Timeline
:: Nike v. Kasky Briefs
The US Supreme Court granted Nike's
petition for writ of
certiorari on January 10, 2003.
Briefs to the Court in support of Nike, or in support of neither
party, were due on February 28, 2003. Briefs in
support of Marc Kasky were due April 4, 2003.
On April 23rd, the Supreme Court heard oral testimony
from Laurence Tribe, representing Nike, Solicitor General Theodore
Olson, representing the United States, and Paul Hoeber, representing
Download the Transcript
Nike, Inc., et al.
Argues that California
may not regulate speech on “matters of public importance” that is
unrelated to regulation of actual commercial transactions.
MERIT BRIEFS OF OTHER
Other briefs in support of Nike:
American Civil Liberties
Argues that the commercial speech doctrine cannot be extended to Nike’s
actions under the First Amendment: “In our system of government, courts
are not arbitrators of truthfulness or probity, except in cases involving
product advertising or where reputational interests are at stake.”
Association of National
Advertising et al.
Argues that Nike’s speech is fully protected by the First Amendment,
regardless of whether the speech is “commercial” or not. ANA also claim
California’s unfair competition law is unconstitutional as applied to this
case because it is “vague and overbroad and allows a private party to sue
without any showing of harm.”
Argues that a speaker’s economic motivation should not diminish the level
of First Amendment protection afforded: “The California Supreme Court
incorrectly relegated corporate speech on matters of public policy to a
lower level of First Amendment protection than that afforded to other
speech on the same issues. Commercial actors have in fact provided
unusually valuable contributions to the most important public debates when
– and especially when –addressing issues that bear directly on their own
Center for Individual
Argues the commercial speech doctrine should be “pared back,” and offers
several suggestions for replacing existing doctrine with more consistent
First Amendment analyses.
Civil Justice Association of
Argues California’s unfair competition law violates due process by failing
to provide business with adequate notice of prohibited conduct, submitting
defendants to repetitive lawsuits for the same conduct, and by delegating
governmental power to private persons. Among other positions, CJA argues
that granting Kasky standing to sue on behalf of the state violates the
Constitution’s guarantee of a “republican form of government” to every
state, a position CAC raised in its brief at the petition stage in this
Council of Public Relations
Firms et al.
Argues that the lower court’s decision would chill corporate public
relations activities by submitting every factual statement to judicial
ExxonMobil et al.
Argues that Nike’s speech is not subject to the commercial speech doctrine
because it “plainly addresses matters of public concern.”
Argues the lower court’s decision would “inhibit the
media’s ability to report on issues of public concern regarding corporate
America,” and that the commercial speech doctrine is unnecessary here
because “media coverage adequately informs consumers regarding companies’
controversial business practices.”
National Association of
Argues that the speaker’s economic motivation does not diminish the
protection of their speech on public issues.
Argues the Court should establish a test for “balancing” the
government’s interest in regulating the marketplace with a company’s right
to defend itself.
Pacific Legal Foundation et
Argues the Central Hudson test for analyzing commercial speech is no
longer relevant given the merging of advertising and marketing with other
forms of “noncommercial” speech.
Products Liability Advisory
Argues the lower court’s decision “creates a new category of lucrative
lawsuits that primarily will benefit plaintiffs’ lawyers,” and which will
encourage plaintiffs’ attorneys to use the media to influence the outcome
SRiMedia and CoreRatings
Argues the lower court’s decision would subject European companies to
lawsuits if they follow the European Union’s “corporate social
The Thomas Jefferson Center
Argues that treating Nike’s speech as “commercial speech” constitutes
viewpoint discrimination under the First Amendment.
U.S. Chamber of Commerce
Argues the commercial speech doctrine only applies to product or
service advertising, and that the lower court’s decision “would result in
the immediate and nationwide suppression of speech on important public
United States of America
The Solicitor General argues the First Amendment does not sanction
judicial relief for “allegedly false statements that have concededly
caused [Kasky] no harm whatsoever.”
Washington Legal Foundation
Argues the commercial speech doctrine only applies to product or service
advertising, and that the lower court’s decision “would result in the
immediate and nationwide suppression of speech on important public policy
In support of neither party
The First Amendment is intended to foster debate on
public issues that is uninhibited on all sides, not debate in
which one side is inhibited by state regulation that does not
apply to the other side.
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