The US Supreme Court heard oral arguments Wednesday in a case that will determine whether Nike can be sued for statements in which they denied the use of child labor and substandard wages in sweatshops in Asia. Nike countered that these statements are protected as free speech under the First Amendment.
The case involves a massive public relations campaign by Nike after activists launched boycotts and public information campaigns about Nike’s use of Asian sweatshops in the mid-1990s. Marc Kasky, a San Francisco-based activist, filed a lawsuit against Nike in 1998 charging that the company’s claims amounted to false advertising – though not in the traditional sense because the claims were not directly about Nike’s product. Rather, Kasky argues that Nike violated a California law that requires corporations to truthfully disclose how their products are produced, according to Carl Mayer, a lawyer who submitted an amicus brief in the case opposing Nike.
Kasky’s case was sent to the US Supreme Court after California’s Supreme Court narrowly ruled last May that Nike could be liable for false public claims about working conditions in its factories abroad, according to the Christian Science Monitor. With the Bush administration on its side, Nike is arguing that because the statements were not produced in formal advertisements they are protected as free speech, according to the Guardian.
If the Supreme Court sides with Kasky, his case will go back to trial to determine whether Nike did indeed make false claims about its business practices, the Los Angeles Times reports. Global Exchange, a San Francisco-based social justice organization, reports that Nike sweatshop workers, many of whom are women, are paid substandard wages, are not allowed to organize independent unions, and often face health and safety hazards.
“This case is extremely important, because the court has never really tackled the difficult issue of how you draw the line between commercial speech É and what we think of as traditional First Amendment expression,” explained Ann Brick, a lawyer for the American Civil Liberties Union Foundation of Northern California, according to the Monitor. The majority of justices on the California Supreme Court decided that Nike’s speech was commercial, because it was “likely to influence consumers in their commercial decisions,” according to the Washington Post.