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Recent
Stories
August
1, 2003
Joanne
Mariner
Stopping Prison Rape
Alex Coolman
Who Moved My Soap: Trivializing
Prison Rape
Steve
J.B.
Prison Bitch
Stan Goff
Injury and Decorum: The Missing Wounded in Iraq
Wayne
Madsen
Europe Unplugs from the Matrix
Robert
Fisk
Wolfowitz the Censor
Elaine
Cassel
Ashcroft Loses Big in Puerto Rico
Website
of the Day
Stop Prisoner Rape
July
31, 2003
Ray
McGovern
The Prostitution of Intelligence
Brian
Cloughley
Wolfowitz's Operative Statement
Sheldon
Hull
The RIAA's Jihad:
The Devil's Music (Industry)
Elaine
Cassel
The Next Time You Crack a Lawyer Joke, Think of These Attorneys
Sheldon
Rampton
and John Stauber
True Lies: Propaganda and Bush's
Wars
Hammond
Guthrie
Speculation Blues
Website
of the Day
Army of One?
July
30, 2003
David
Lindorff
Poindexter the Terror Bookie
Marjorie
Cohn
Why Iraq and Afghanistan? It's About
the Oil
Elaine
Cassel
How Ashcroft Coerces Guilty Pleas
in Terror Cases
Zvi
Bar'el
The Hidden Costs of the Iraq War
Lisa Walsh
Thomas
Killing Mustafa Hussein: Death of a Child, Birth of a Legend?
Sean
Carter
Pat Robertson's Prayer Jihad: God, Sodomy and the Supremes
ND Jayaprakash
India and Ariel Sharon
Steve
Perry
Bush's Top 40 Lies
Standard
Schaefer
Correction about Bloomberg and Outscourcing
Website
of the Day
Bring Them Home Now!
Congratulations
to CounterPuncher Gilad Atzmon! BBC Names EXILE Top Jazz CD
July
29, 2003
Jeffrey
St. Clair
"Journalist Spotted! Journalist
Dead!" Guatemala Bleeds; US Press Yawns
Thomas
J. Nagy
The Belligerent Dr. Pipes
Kurt Nimmo
Tom Delay Goes to Jerusalem
Chris
Floyd
Dead Reckoning: Bush Warriors Sign Off on War Crimes
Robert
Fisk
Another Botched Raid; Another Massacre
Jason Leopold
Did Chalabi Help Write Bush's State of the Union Address?
Conn Hallinan
Food Bully: Bush's Biotech Shock and Awe Campaign
Dan
Bacher
Sacramento's War on Free Speech
Ray
McGovern
Cheney Chicanery
Website
of the Day
Julie Hilden Caught on Tape
Hot Stories
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Stan
Goff
Bring 'Em On Home, Now!
Wendell
Berry
Small Destructions Add Up
Gary
Leupp
Faith-Based Intelligence
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
Elaine
Cassel
Civil Liberties
Watch
Michel
Guerrin
Embedded Photographer Says: "I
Saw Marines Kill Civilians"
Uzma
Aslam Khan
The Unbearably Grim Aftermath of War:
What America Says Does Not Go
Paul de Rooij
Arrogant
Propaganda
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
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for More Stories.
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August
2, 2003
Nike's
Full Court Press Breaks Down
Sweatshops,
Lies, the Supremes and Kasky
By TAMARA R. PIETY
The Supreme Court capped off a week of surprises
and milestones with what looked like one big "Never mind"
when it dismissed the Nike v. Kasky "commercial speech"
case. But appearances can be deceiving. In fact, the Court's
decision signaled the defeat of Nike's bid to take Marc Kasky--and
any more like him--out of the game altogether.
Kasky, a resident of California, had
sued Nike under California's decades-old consumer protection
laws regulating, among other things, false advertising, claiming
that statements made by Nike to defend its labor practices were
lies. Kasky claimed Nike made false statements about its labor
practices and factory conditions because consumers care about
these issues and indeed anchor their purchasing decisions on
such information. Nike made these statements in letters to
the editor of various papers, press releases, paid advertisements
(not unlike the one Martha Stewart recently ran), on its Web
site and other venues. Such false statements, made for a commercial
purpose, Kasky claimed, violated California law.
In order to appreciate the significance
of what the Supreme Court did, understand that Nike's response
to Kasky's claim was, in effect, "So what? Even if everything
you say is true, under the First Amendment we're entitled to
lie." Now that is what you call an "in your face"
defense.
This move of Nike's is what is known
in the legal biz as a demurrer, or a motion to dismiss.
In order to grant a demurrer, a court must find that,
even if everything the plaintiff says is true, the law provides
no recourse.
Here Nike wanted a ruling that the First
Amendment offered it absolute immunity for any misstatements
it may have made, knowingly or unknowingly. The trial court and
the intermediate appellate courts in California agreed with Nike.
But the California Supreme Court, relying on precedent from the
U.S. Supreme Court, disagreed, finding that these statements
were made with a commercial purpose and thus were "commercial
speech." Since the late 1970s the Supreme Court has held
that "commercial speech", as long as it was truthful,
could enjoy a limited First Amendment protection. Put another
way, in the commercial speech area the government could regulate
content for its truth --precisely what it cannot do with other
protected speech. However, before the Supreme Court created
this category no one thought commercial speech was "speech"
at all for purposes of the First Amendment.
The California Supreme Court's decision
was bad news for Nike since a failure to win at the motion-to-dismiss
stage meant entering into the dreaded realm of discovery. (And
who knows what might emerge there? Just ask the tobacco industry.)
So, hungry for a win, needing a win, Nike went for the
big one, the U.S. Supreme Court. And they had good reasons to
believe that they might win.
For several years various corporate interests,
particularly those in the advertising, media and image businesses,
have urged the high Court to do away with the commercial speech
doctrine altogether and to treat commercial speech like political
speech. They argued that commercial speech should not be treated
as some sort of second-class citizen of speech. And they've found
at least one ally in Justice Thomas.
Although the Court has (so far) resisted
or rebuffed these entreaties, it has nevertheless struck down
some attempts to regulate commercial speech (such as Massachusetts's
effort to severely restrict tobacco advertising in the Lorillard
case). But the Nike case presented another such opportunity,
so its petition was soon joined by a blizzard of briefs--representing
not only the usual suspects (advertising and chamber of commerce
interests), but garnering support from some undreamed of allies
such as the AFL-CIO. Nike might be forgiven for thinking they
could rush the play, take control and slam dunk their way to
victory, given a line-up like this--especially after the Supreme
Court agreed to hear the case, which resulted in another daunting
array of amici (friends of the court) briefs, this time balanced
by some for Kasky.
Their high hopes, however, were dashed
when the Supreme Court dismissed. Dismissal means that the fondest
wish of Nike and its amici--that its legal arguments represented
the endgame--is over. Now Kasky gets the chance to prove his
case with evidence. Whether he can do it is another story. But
at least he gets to try.
Tamara R. Piety,
assistant professor of law at The University of Tulsa College
of Law, wrote an amicus (friend of the court) brief against
Nike on behalf of The Sierra Club, an environmental organization
concerned about "greenwashing," a form of commercial
speech where corporations take an environmentally friendly tone
in their advertising, labeling and other public image materials,
whether or not those claims are true. She can be reached at: tamara-piety@utulsa.edu
© copyright Tamara R. Piety 2003
Weekend Edition Features for July 26 / 28, 2003
Alexander
Cockburn
NYT's Screws Up Again; Uday and
Qusay Deaths Bad for Bush; Gen. Hitchens at the Front
Gary
Leupp
Faith-Based Intelligence
Saul Landau
A Report from Syria
Stan
Goff
Bring 'Em On Home, Now!
Jeffrey
St. Clair
Book Cooking at Boeing
Andrew
Cockburn
The Sons Are Dead; Now the Blood Feud
Begins
Jason Leopold
CIA Points the Finger at the Pentagon's Office of Special Plans
Robert
Fisk
The Power of Death
Joanne
Mariner
Monsieur Moussaoui
M. Shahid
Alam
The Global Economy Since 1800: a Short History
Harry
Browne
Northern Ireland: the Other Faltering Peace Process
Fidel Castro
Moncada, 50 Years Later
Lula
Democracy Requires Social Justice
Edward
S. Herman
Refuting Brad DeLong's Smear Job on Noam Chomsky
Ron Jacobs
Guided by a Great Feeling of Love: a Review of Gordon's The Company
You Keep
Julie
Hilden
A Photographer, an Offer and Cameron Diaz's Topless Photos
Adam Engel
Man Talk
Poets'
Basement
Keeney, Witherup, Short, Nimba, Guthrie and Albert
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