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Silent swoosh
Boston-based activist John Bonifaz says Nike’s not covered by the First Amendment. But if Nike loses its rights, what about the rest of us?
BY DAN KENNEDY

IT IS, ON ITS FACE, a rather startling assertion coming from someone who insists that he favors freedom of speech. John Bonifaz, a Boston lawyer best known for his dogged work on campaign-finance reform, says that Nike — and corporations in general — should have no First Amendment rights.

The context: a case argued before the US Supreme Court on April 23. Nike, accused of violating California’s commercial-speech law by making " false and misleading " statements in defense of its dubious Third World labor practices, sought to have the suit against it thrown out. And the Boston-based National Voting Rights Institute, which Bonifaz founded and heads, helped to prepare an amicus curiae ( " friend of the court " ) brief arguing that corporations — as artificial creations of the government — should not be entitled to any protections not explicitly granted to them by the government. Including constitutional protections such as those contained in the First Amendment.

" We’re taking the free-speech position, " insists Bonifaz. " But it’s a different kind of free-speech position than the ones who claim to represent those interests. " He adds: " We’re for more speech, but we’re also for having a level playing field. And we do not think it is helpful to an open and robust debate to have big money distort the democratic process. "

Bonifaz’s argument in the matter of Nike v. Kasky is virtually identical to the one that he and other campaign-finance-reform advocates have been making for years: that corporate money influences public discourse in ways that shut out ordinary citizens, thus damaging the political process. His latest effort can be seen as the next logical step in his ongoing battle against corporate power.

At a time when the pernicious effects of corporate power and influence sometimes appear to be out of control, an effort to trim corporate rights might seem welcome. Yet Bonifaz’s claim that his is the true " free speech " position doesn’t have many takers. The ACLU has lined up against him. So have the New York Times, the Washington Post, and a host of other media organizations that depend on freedom of speech to accomplish their missions. The AFL-CIO, too, has taken Nike’s side. (With Bonifaz are the attorneys general of California, New York, Connecticut, and 15 other states, as well as the Sierra Club and several other activist groups.)

Paul McMasters, the First Amendment ombudsman for the Freedom Forum and a close observer of free-speech issues, is among those who hope that Nike prevails. " I always think it’s best for America and democracy that there is an expansive reading of the First Amendment, " McMasters says. The problem, he adds, is that if free-speech rights can be taken away from one type of organization — a for-profit corporation — then, presumably, they could be taken away from other types of organizations as well, such as political parties, religious groups, or, conceivably, public-interest nonprofits such as the National Voting Rights Institute.

" The fact of the matter, " says McMasters, " is that all of these entities represent individuals getting together for common purposes. Indeed, the group filing this brief has First Amendment rights, and I think they should have First Amendment rights. But if their argument were to prevail, then I think their First Amendment rights as a group would be diminished. "

A PROPERLY skeptical observer might wonder about the entire notion of truthfulness in corporate-public-relations efforts. What comes to mind is Mary McCarthy’s memorable libel of Lillian Hellman: " Every word she writes is a lie, including ‘and’ and ‘the.’ " Even if one takes a less-harsh view of the work product of corporate flacks, one would have to agree that public relations is inextricably tied to the art of spinning: putting the best possible face on things, omitting or playing down certain inconvenient truths, and freely mixing fact and opinion. Seen in this light, Nike v. Kasky is nothing less than an attempt to criminalize public relations.

In the mid 1990s, Nike came under fire from social activists for its employment practices in Third World countries, primarily Asia. Nike fought back in letters to the editor, in op-ed pieces, and on its Web site, arguing that the dismal working conditions and meager pay to which its foreign employees were subjected actually met or exceeded local wage and safety regulations.

That led an anti-globalization activist from San Francisco named Marc Kasky to file a lawsuit in 1998 accusing Nike of making false and misleading statements — and, thus, of violating the state of California’s truth-in-advertising law.

Nike’s defense was not that its statements were true (although it has never said they weren’t), but, rather, that the company had a First Amendment right to make false statements. In other words, Nike said that its public-relations efforts constituted political speech, not commercial speech, and therefore were not subject to the sort of government regulation as, say, an advertisement claiming that Nike running shoes would allow anyone to run a marathon in three hours or less.

In 2000, a California appeals court ruled in Nike’s favor. In 2002, though, the California Supreme Court, on a four-to-three vote, found that Nike’s statements amounted to commercial speech because they were made partly " for the purpose of maintaining and increasing its sales and profits. " Nike, rather than allowing Kasky to proceed with his suit, appealed to the US Supreme Court, which heard arguments last week.

There are, in fact, two distinct aspects to the plaintiffs’ case. The first is that Nike’s statements were commercial speech, subject to government vetting for accuracy — and punishment for inaccuracy. The second is the John Bonifaz position, that corporations should not enjoy First Amendment protections for any speech, commercial or political. Legal experts, even those who hope that Nike prevails, say that Kasky made a reasonably strong case on the commercial-speech part, but that the anti-corporation argument is radical and contrary to well-established law. " The argument that a corporation should have fewer rights than an individual is wrong as a matter of law and a matter of policy, " says Harvey Silverglate, a noted civil-liberties lawyer and Phoenix contributor (as well as my occasional collaborator). " Corporations are not things. They are a conglomeration of people. The ACLU is a corporate entity, for God’s sake. "

UCLA law professor Eugene Volokh — the editor of a popular libertarian-flavored Web log called " The Volokh Conspiracy " (volokh.blogspot.com) — says that the problem with tying Nike’s rhetorical hands is that its critics would have much freer rein to attack Nike than Nike would to respond. " Nike would be subject to much more demanding standards, " he says. " That doesn’t just shortchange Nike, it shortchanges the public. One side can fight with the gloves off, and the other side is considerably more restricted. "

Now, when it comes to speech, there is lying and there is lying. Critics of Nike cannot libel Nike — that is, they cannot say things about the company that are both false and harmful — or Nike is likely to take them to court. But the stricter standard that Kasky and his supporters want Nike held to would prohibit the company not just from saying things that are libelous, but also things that are " false and misleading " (one shudders at the notion of trying to define " misleading " speech that is largely political), even if they are not libelous.

Stephen Barnett, a professor at the University of California at Berkeley's Boalt School of Law, says the notion that Nike's political defense of itself could be ruled as commercial speech, subject to government oversight, could have a chilling effect on public debate.

"If this is commercial speech, then almost anything is," Barnett says. "It's hard to think of an example that goes further than this. This is the whole debate on globalization here. The product is shoes and the debate is globalization. It's hard to think of having more leverage than that to suppress speech."

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Issue Date: May 2 - 8, 2003
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