The dog that didn't bark. I'd missed this until I saw Robert Samuelson's column in today's Washington Post. But the US Supreme Court declined to rule on a free-speech case involving Nike and an anti-corporate activist from San Francisco named Marc Kasky.
Kasky had sued Nike, charging that the company lied in press releases, letters to the editor, and on its website about the working conditions of Nike employees in the Third World. More to the point, Kasky asserted that Nike's statements constituted commercial speech under California law, as subject to regulation for truthfulness as ads about the performance of its running shoes. While not conceding having made any false statements, Nike tried to get the case thrown out on First Amendment grounds.
I wrote about the case recently ("Don't Quote Me," May 2), mainly because I was intrigued by the involvement of the Boston-based National Voting Rights Institute, which took the position that the First Amendment should protect individuals, not corporations. It's an interesting argument, though I think speech restrictions are never worth whatever gain its proponents believe there is to be had in terms of leveling the playing field.
One tidbit I picked up that I didn't use now looks prescient. Stephen Barnett, a professor at the Boalt Hall School of Law, at the University of California at Berkeley, told me that though he was hoping the Court would rule decisively in Nike's favor, his expectation was that it would punt because the case had not yet gone to trial.
"My sense is that in the end it will not be a great case, and the Court will decide very little," Barnett told me. "The way things work now, the Court has this rule requiring final decisions, meaning that the case only comes up after a final judgment, rather than an interlocutory decision like this one."
Barnett called it exactly right.
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