The Supreme Court had accepted* Nike v. Kasky *for review, but they dismissed the case on procedural grounds. This case concerns the question of when businesses may be sued for making allegedly false or misleading claims. Summarizing some key points from Prof. Volokh’s analysis:
Lots of interesting question here:[ul][li]Should there be a commercial exemption to freedom of speech?[]If so, how should it be defined?[]If speech has mixed characteristics, should it be treated as commercial speech or as non-commercial speech?[]Is it unconstitutional (or unwise) to allow non-customers to sue? []Should the US SC hestitate to overrule the California SC, who held that this was an instance of commercial speech, by a 4 to 3 vote.[/ul]My own view is that commercial speech exemptions to Freedom of Speech are dubious. They’re not mentioned in the Constitution. They should be as narrow as possible. They should be limited to how a product will serve.[/li]
What do you think?
Corporations are ficticious, money gathering entities that exist on a piece of paper. False Statements that they issue to defend their business practices constitute false advertising, which should NOT be protected speech.
If we permit corporations to lie about their business practices in order to make themselves look good, that could mean that millions of people are buying their products under false pretenses. Because if they knew the allegations were true, they wouldn’t have bought from that company. Essentially, consumers are being robbed. I think there is a compelling government interest in preventing that.
You have raised two issues – *ficiticious entities *and money-gathering entities. I believe that the commercial exemption would apply to a business whether it was a corporation or a sole practitioner. So, the law isn’t different because a corporation is a fictitious entity.
As for the money-gathering aspect, every organization gathers money. It’s our medium of exchange. In particular, tendentious organizations like the National Rifle Organization or the ACLU gather dues and donations. This type of organization may exaggerate some threats in order to encourage people to support them. Why should they have more freedom of speech than Nike does?
IANAL, but I feel that companies should not be allowed to make factually erroneous statements about their internal operations because that prevents me from making an informed decision about whether or not to buy their stock. I view this (if Nike is indeed lying) no differently than Enron lying about their accounting practices. So, I guess I don’t think this is either a commercial speech or a free speech issue.
I don’t think unaffected individuals should be allowed to sue. It’s better for the state to prosecute these kinds of things.
Commercial speech that isn’t true is fraud. Fraud is not constitutionally protected. Burying fraud in a political debate shouldn’t make it proteced speech, either. That’s no different than wearing a “save the whales” t-shirt when you break into someone’s house and rob them. Mixing crime and political activism doesn’t make the crime okay. Never. If Nike’s products are made in sweat shops (I am not saying they are, I do not know), the company should not be allowed to say otherwise. They can’t get the benefit of cheap labor and lie about it to get goodwill. Can’t have it both ways.
There’s a difference between exaggerating threats and outright lying about what your organization does and does not do.
For example, let’s say that hypothetically, the ACLU swears up and down that they aren’t helping out Bush’s re-election campaign. I believe them and send them my $20 a year membership dues. Later it becomes public that they actually WERE helping Bush’s re-election campaign. That would be fraud, because they got me to send them money under false pretenses.
Well, I think–as is usual with law–each case is different.
1a. Critics run ads or send editorials to the NYTimes or stage highly visible protests, saying, “Nike uses sweatshop labor.”
2a. Nike runs an ad saying, “No we don’t. Actually, our factory conditions are some of the best in the world.”
1b. Critics run ads or send editorials to the NYTimes or stage highly visible protests, saying, “Nike’s factory in Singapore works 6-year-old children for 18 hours each day without bathroom breaks and only pays the workers $2 a year.”
2b. Nike runs an ad saying, “No we don’t. All our workers are at least 16 years old, never work longer than 12 hours a day, are given three 15-minute breaks daily, and earn an average of $5 a day in wages.”
Now, case (a) is pretty vague on both sides, and, IMO, is no better/worse than saying, “Coke tastes better than Pepsi,” “No, Pepsi tastes better than Coke.” But case (b) makes specific, factual allegations and specific, factual refutations. If it turns out that Nike, in fact, was working 6-year-olds for 18 hours a day and paying them $2 a year when they specifically said otherwise, then they’re committing fraud. If Nike just says, “Nike: A great company that is committed to helping its employees,” then you don’t have much to go on.
If the information presented is false, it should have no protection. In any case, corporations ought not have “civil rights” in any sense in the first place. The ultimate limit upon potential abuse of a right is that the individual who attempts to abuse such a right will inevitably die. This is not true of corporations. They are no people. They do not deserve rights as people have rights. There should be no such thing as “protected speech” for corporations. Let individuals speak freely. Let corporations serve their proper function–limiting financial risk of business loss.