Nike loses case over freedom of speech

Nike loses case over freedom of speech

David Teather in New York, The Guardian

Friday June 27, 2003

The US supreme court yesterday dismissed a claim by the footwear maker Nike that a publicity campaign to counter allegations that it uses sweatshops to make its products was protected by the right to free speech.

The media, advertising and public relations industries had eagerly anticipated a ruling by the supreme court in what was viewed by many as a crucial case.

A Californian anti-globalisation activist is suing the company for illegedly making false claims and the refusal to rule on Nike's rights under the US constitution means the case can now proceed. In the advertising and PR statements in question, Nike defended the ages and conditions at its plants in Asia where workers make trainers and other leisurewear. The company has issued various press releases and fact sheets about its use of overseas labour and said that the statements were protected by the First Amendment right to free speech.

The supreme court did not make a judgment on the case but ruled that the claim had no place in the court.

About 40 large media companies formed a coalition with onservative legal groups, the US Chamber of Commerce, the American Civil liberties Union and other organisations to back Nike.

They argued that corporations would become reluctant to discuss sensitive issues such as the safety of products, racial discrimination or environmental concerns if they feared that those comments could lead to a lawsuit.

The Bush administration had also backed Nike in the case, arguing that defeat would give too much power to private corporate critics, turning them into de facto censors.

Nike's critics said the company's defence hoodwinked consumers.

The San Francisco-based activist Marc Kasky sued Nike in 1998, under a California consumer law aimed at eliminating unfair competition and false advertising. He said yesterday: "We now have the opportunity to go to trial to determine if Nike's comments were true or not. It could have been resolved very quickly five years ago by just going to trial. Nike chose instead to seek protection under the First Amendment."

In the mid-90s Nike became a poster-child for the anti-globalisation movement and faced a barrage of allegations that it was exploiting workers, especially women and children. The lawsuit claimed that Nike knew workers were subjected to physical punishment and sexual abuse, endured dangerous working conditions and were unable to earn a living wage, despite often working 14 hours a day.

It further alleged that the company, based in Beaverton, Oregon, falsely portrayed itself as a "model of corporate responsibility" in an effort to boost sales. Nike said the suit should be dismissed because the statements cited were protected as free speech and were part of a debate in the media.