Kuro5hin.org: technology and culture, from the trenches
create account | help/FAQ | contact | links | search | IRC | site news
[ Everything | Diaries | Technology | Science | Culture | Politics | Media | News | Internet | Op-Ed | Fiction | Meta | MLP ]
We need your support: buy an ad | premium membership

[P]
Kasky v. Nike: False Advertising vs. Freedom of Speech

By waxmop in Op-Ed
Wed Jul 09, 2003 at 10:00:32 PM EST
Tags: Politics (all tags)
Politics

Everybody probably remembers how in the 1990s a hot topic was sweatshop-manufactured apparel. Activists highlighted working conditions for workers producing goods for companies like Nike.

Marc Kasky sued Nike in 1998 under an unusual California law that allows any private citizen to sue a corporation on behalf of the state. He claimed that Nike made misleading and/or false statements intended to avoid consumer boycotts of its products, and these statements qualify as false advertising under California law.

Nike responded that its claims about how working conditions and wages have improved were protected by the First Amendment's guarantee of the freedom of speech, and that whether or not those statements were true, misleading, or even outright falsehoods is irrelevant.


The Reclaim Democracy website has all the background on the case that anyone could want. Even though they clearly have an agenda on the subject, they link to court documents and other primary documents, so you can still make up your own mind. Additionally, Mordant1123 provided these links:

The first two courts that heard the case agreed with Nike. The California Supreme Court decided for Kasky and reversed the lower decisions. This excerpt from the decision explains the court's logic:

The issue here is whether defendant corporation's false statements are commercial or noncommercial speech for purposes of constitutional free speech analysis under the state and federal Constitutions. Resolution of this issue is important because commercial speech receives a lesser degree of constitutional protection than many other forms of expression, and because governments may entirely prohibit commercial speech that is false or misleading.

Because the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about the speaker's own business operations for the purpose of promoting sales of its products, we conclude that these messages are commercial speech for purposes of applying state laws barring false and misleading commercial messages. Because the Court of Appeal concluded otherwise, we will reverse its judgment.

Our holding, based on decisions of the United States Supreme Court, in no way prohibits any business enterprise from speaking out on issues of public importance or from vigorously defending its own labor practices. It means only that when a business enterprise, to promote and defend its sales and profits, makes factual representations about its own products or its own operations, it must speak truthfully. Unlike our dissenting colleagues, we do not consider this a remarkable or intolerable burden to impose on the business community. We emphasize that this lawsuit is still at a preliminary stage, and that whether any false representations were made is a disputed issue that has yet to be resolved.

It is important to notice that the California Supreme Court is not ruling on if Nike, Inc. made false statements; the court is just rejecting Nike's defense that the freedom of speech makes the whole case irrelevant.

After the California Supreme Court made this ruling, Nike, Inc. appealed to the US Supreme Court. The US Supreme Court initially agreed to hear the case. After considering the case, the US Supreme Court made the statement that "the writ of certiorari was improvidently granted," which means that they should not have decided to hear the case. Court-watchers interpreted this as a sign that the Supreme Court would prefer to wait until a lower court actually makes a decision before the US Supreme Court gets involved.

A lower court may now rule for or against Nike, and the case again may get appealed back up to the US Supreme Court. At that point, it is possible that the US Supreme Court may consider for itself the idea that the freedom of speech protects commercial speech.

With all that background established, for a minute, just forget what is constitutional, or legal, or what can be logically deduced from the conditions, and think about this case just in the framework of right and wrong. This case is really about a corporation that was faced with consumers that were unhappy with the methods it used to produce its goods. Then the firm responded to the irate consumers with misleading statements. When activists pointed out the flaws, the firm claimed that it can say whatever it wants, true or untrue, and not have to be held to any standards of truthfulness because the First Amendment freedom of speech protects them.

Keep in mind that this is a corporation that we're talking about, not a human being. Restricting the rights of a corporation does not necessarily have any effect on our rights.

The real question here is: should we allow a corporation to mislead concerned citizens?

Sponsors

Voxel dot net
o Managed Hosting
o VoxCAST Content Delivery
o Raw Infrastructure

Login

Poll
What do you think?
o In the techno-libertarian utopia of the future, it would be impossible for a corporation to mislead consumers because all information would be free and easily available. 31%
o Out of work? Got no food? Why don't you go eat your precious Constitution? 18%
o Corporations are the real-world equivalent of the machines in The Matrix and should be abolished. 42%
o Nike shoes are ok, but I wear British Knights. 7%

Votes: 95
Results | Other Polls

Related Links
o Reclaim Democracy
o Mordant112 3
o Findlaw's index of California's Business and Professions Code
o 17200
o 17500
o pdf copy of 17200
o decided for Kasky
o Also by waxmop


Display: Sort:
Kasky v. Nike: False Advertising vs. Freedom of Speech | 118 comments (109 topical, 9 editorial, 0 hidden)
Careful... (4.00 / 4) (#5)
by Ken Arromdee on Wed Jul 09, 2003 at 01:50:45 PM EST

The ACLU was on the corporation's side, which should clue people in that something is afoot other than just the rights of companies to lie.

Consider, would the things *you* say hold up to this standard? Imagine if all your posts on kuro5hin were judged with the same standard used for judging misleading advertising. And imagine that every time said that a post of yours was misleading, that was a court case. If you hold corporations up to that standard it would be impossible for them to defend themselves at all, because anything they could possibly say would be interpreted as misleading by at least one opponent who is willing to cause trouble over it.

But... (4.00 / 7) (#19)
by monkeymind on Wed Jul 09, 2003 at 06:02:02 PM EST

I am not asking people here to base spending their hard earned cash on the comments I make here.

So by this standard it is ok for a food place to say they use no animal products, so they will increase their sales to vego's. They when it is found out they cook their fires in beef tallow they can use the same excuse?

or for a car maker to say that their tyres do not explode at highway speeds?

etc.

Your witty saying here
[ Parent ]

Your examples (3.50 / 2) (#42)
by driptray on Wed Jul 09, 2003 at 10:51:22 PM EST

Your beef tallow and exploding tyre situations are both cases in which the misled consumer will suffer some damage as a result of the misleading statement. If the misleading statement was made knowingly, then the company will be negligent, regardless of any free-speech rights.

The difference with the sweatshop issue is that the misleading statements regarding sweatshops are not likely to cause any real damage to those that rely on them. You *could* argue that you suffered some mental harm because you were misled into contributing to the continued existence of sweatshops, but that might come across as a little far-fetched in court.
--
We brought the disasters. The alcohol. We committed the murders. - Paul Keating
[ Parent ]

Not so far-fetched (4.50 / 2) (#57)
by Tatarigami on Thu Jul 10, 2003 at 12:26:19 AM EST

You could argue that you suffered some mental harm because you were misled into contributing to the continued existence of sweatshops, but that might come across as a little far-fetched in court.

I think it would be pretty reasonable to claim that you suffered some distress and regret as a result of being tricked into going against your personal code of ethics. Courts tend to be in favour of people taking personal responsibility for their conduct, and I could see a panel of judges concluding that misinformation like this has put the customer in a position where their judgement is impaired through no fault of their own.

[ Parent ]

Yeah but (3.83 / 6) (#20)
by flimflam on Wed Jul 09, 2003 at 06:03:00 PM EST

I am not a corporation. The issue comes down to the difference between commercial speech and, um, I guess "non-commercial" speech.

Anyway, there are all kinds of limitations on personal speech as well that aren't generally seen as grave infringements on freedom of speech (of course now that I say that I'm wanting to argue the other side of this issue wrt libel laws...)

I guess it comes down to this: should my business be able to legally claim that its products are manufactured by highly-paid, unionized, (etc. etc.)  workers when in fact they are made by orphans in some third-world country? How exactly is this a freedom of speech issue?


-- I am always optimistic, but frankly there is no hope. --Hosni Mubarek
[ Parent ]

Yes I think they would (4.60 / 5) (#21)
by thejeff on Wed Jul 09, 2003 at 06:16:26 PM EST

Nothing that I've said here, and little that I've read falls under this decision. Few comments here are "directed by a commercial speaker to a commercial audience ... promoting sales of its products," Those that are are usually told to buy an ad.

This isn't going to quell debate. It might hurt astroturfing, but I don't have any real problem with that.

[ Parent ]

Commercial speech (4.33 / 3) (#23)
by truth versus death on Wed Jul 09, 2003 at 06:57:34 PM EST

Are you selling an actual item for purchase with legal tender? If not, then your analysis does not apply.

"any erection implies consent"-fae
[ Trim your Bush ]
[ Parent ]
no... (none / 0) (#51)
by Suppafly on Wed Jul 09, 2003 at 11:28:46 PM EST

Consider, would the things *you* say hold up to this standard? Imagine if all your posts on kuro5hin were judged with the same standard used for judging misleading advertising. And imagine that every time said that a post of yours was misleading, that was a court case. If you hold corporations up to that standard it would be impossible for them to defend themselves at all, because anything they could possibly say would be interpreted as misleading by at least one opponent who is willing to cause trouble over it.

No, you don't understand the issue at hand. There is already a difference between what is considered protected speech and commercial speech. This case revolves around nike lying in commercial speech and then trying to pretend its regular protected speech. The outcome of this case has nothing to do with regular protected speech.
---
Playstation Sucks.
[ Parent ]
Difficult, difficult question (none / 0) (#65)
by X3nocide on Thu Jul 10, 2003 at 02:23:41 AM EST

Is there a first amendment right to fraud? On the one hand, we don't like fraud. On the other hand, saying you're someone you're not, or misrepresentations in general, are still speech.

You might consider this a conflict between the first and ninth amendments. I generally fall on the strict constructionist / conservative / Founder's intent side of the Bill of Rights, but this is something of a dilemma. I do not wish to be decieved, and I can hardly imagine anyone wishing to be decieved. One must be careful with that word, "deception," lest a wide array of valuable social tools and products become subject to scrutiny. Fiction, is at its essence, and entertaining lie. Illusionists make the statue of liberty dissapear. What I mean, is speech known by the speaker to be false, but presented consistantly as truth.

pwnguin.net
[ Parent ]

Fiction (5.00 / 1) (#72)
by yooden on Thu Jul 10, 2003 at 07:07:41 AM EST

Fiction is not a lie, it's fiction. These are two distinct concepts, and nearly everyone can understand the difference at once.
Nike didn't try sell a new Harry Potter story, they lied about their products.

[ Parent ]
On the third hand (none / 0) (#82)
by Ken Arromdee on Thu Jul 10, 2003 at 01:17:40 PM EST

Prohibiting unreasonable searches, torture, etc. means that some people who are really guilty will go free because of lack of evidence. Is this bad? Overall, no. We recognize that having some criminals go free is an acceptable cost that we pay so that people in general aren't mistreated by the police.

We need to let Nike lie for the same reason that we need to let suspects go if the only evidence against them was found by a warrantless search. And for the same reason that the ACLU fights to let Nazis march--the next group denied a permit on political grounds might not be Nazis, the next criminal suspect searched might not be guilty--and the next company taken to court for being "misleading" might not be Nike.

[ Parent ]

So used car salesmen (none / 0) (#87)
by X3nocide on Thu Jul 10, 2003 at 04:58:03 PM EST

Should be free to lie about the condition of the car you just bought, and free from litigation reguarding their (yours, now) lemon?

pwnguin.net
[ Parent ]
No, because... (none / 0) (#94)
by Ken Arromdee on Fri Jul 11, 2003 at 12:05:11 PM EST

you're his customer. Nike was making statements to the general public in the context of a political debate about its business practices.

Do you really want people to be able to sue French companies for claiming that they're opposed to the Iraq war because they like peace, when they're really opposed to it because of business contracts with Saddam Hussein? (And thus are "misleading" the public).

[ Parent ]

The burden of proof. (none / 0) (#97)
by waxmop on Fri Jul 11, 2003 at 01:54:26 PM EST

You said:

Do you really want people to be able to sue French companies for claiming that they're opposed to the Iraq war because they like peace, when they're really opposed to it because of business contracts with Saddam Hussein? (And thus are "misleading" the public).
I'll ignore that you're lumping in French companies with the French government for a second. In your hypothetical example, it would be up to the plaintiff to establish that a preponderance of evidence exists to support its claim. If the plaintiff can't satisfy the burden of proof, the French companies have nothing to worry about.
--
We are a monoculture of horsecock. Liar
[ Parent ]
I'm... (none / 0) (#98)
by Ken Arromdee on Fri Jul 11, 2003 at 02:22:51 PM EST

sure that there's at least one French company that said something of the sort. (Not to mention government officials with close association with companies.)

If the plaintiff can't satisfy the burden of proof, the French companies have nothing to worry about.

That's not true. Being able to win in court doesn't mean that you have nothing to worry about--fighting the bad publicity has a huge cost. And besides, who says that they could win? They *are*, after all, being misleading; it's just that in politics a certain amount of misleading is normal.

[ Parent ]

Well... (none / 0) (#99)
by waxmop on Fri Jul 11, 2003 at 02:30:18 PM EST

They have nothing to worry about legally; the PR battle will happen either way, with or without the law.
--
We are a monoculture of horsecock. Liar
[ Parent ]

If I bought a pair of nike shoes (none / 0) (#103)
by X3nocide on Fri Jul 11, 2003 at 06:02:53 PM EST

Would I not be a Nike customer?

pwnguin.net
[ Parent ]
non-parallel statements (none / 0) (#108)
by cburke on Sat Jul 12, 2003 at 01:11:59 PM EST

we must let the accused go if they are aquitted. we do -not- have to let them commit crime. you are saying that because we must let the accused go if found innocent, we must let corporations lie without accusing them at all. that is a non sequitor.

[ Parent ]
Not an issue of corporations (4.33 / 3) (#6)
by cr8dle2grave on Wed Jul 09, 2003 at 02:30:12 PM EST

The real question here is: should we allow a corporation to mislead concerned citizens?

Many people mistakenly believe that this case is a proper vehicle for conducting an assault on the very idea of corporations, and the juridical concept of a legal person or "coporate personhood" in particular, but all such issues are legally--and I'd argue ethically as well--spurious. Nike v. Kasky simply concerns questions surrounding the process of distinguishing commercial speech from speech that enjoys the full protection of the First Amendment. Commercial speech is equally subject to some degree of regulation whether made by a corporation or an individual.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


Additionally... (5.00 / 1) (#9)
by cr8dle2grave on Wed Jul 09, 2003 at 02:43:58 PM EST

Now that the California Supreme Court has rejected Nike's argument that freedom of speech protects false commercial speech... it is possible that the US Supreme Court may consider for itself the idea that the freedom of speech protects misleading commercial speech.

It may seem a minor quibble, but your characterization of the central legal question is incorrect. Nike did not argue that commercial speech enjoys the full protection of the First Amendment, rather it argued that the speech in question was not, in fact, commercial speech. The California Supreme Court made this clear in section of their decision you quoted: "The issue here is whether defendant corporation's false statements are commercial or noncommercial speech."

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
I edited the story. (none / 0) (#25)
by waxmop on Wed Jul 09, 2003 at 07:05:07 PM EST

I edited the story to remove the inaccuracy.
--
We are a monoculture of horsecock. Liar
[ Parent ]

individuals (3.30 / 10) (#11)
by idea poet on Wed Jul 09, 2003 at 03:52:55 PM EST

One of the main problems of consumer culture is that the rights of corporations seem to have usurped those of individuals. Money doesn't talk. It shouts. I am more and more convinced that the whole world is turning into a new style of totalitarian state, where our perceptions is retrofitted based on who pays the piper.

Yes, yes (4.20 / 5) (#12)
by RyoCokey on Wed Jul 09, 2003 at 03:56:29 PM EST

If this is the case, please explain why trade guilds and other state-run businesses failed to have this effect over the past 2000 years of history. You'd think capitalism just sprung out of the whole cloth in the past 50 years.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
not regular capitalism... (5.00 / 3) (#16)
by Run4YourLives on Wed Jul 09, 2003 at 05:28:40 PM EST

but the "new and improved" stuff is a relatively new invention.

See several cases where corporations have sued states for passing laws (which in most cases protect there citizens) for lost profits under NAFTA.

I think that was the original poster's point.

It's slightly Japanese, but without all of that fanatical devotion to the workplace. - CheeseburgerBrown
[ Parent ]

That was poor government (none / 0) (#53)
by RyoCokey on Wed Jul 09, 2003 at 11:35:38 PM EST

At no point did the businesses actually compel the government to act. We don't have them running around with small armies. Even today, a business is still subordinate to the government of the country they operate out of.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
ignorance... (none / 0) (#79)
by Run4YourLives on Thu Jul 10, 2003 at 12:08:32 PM EST

I'd suggest you do some reading, you may be surprised.

Even today, a business is still subordinate to the government of the country they operate out of.

Yes, but under NAFTA, they are not subordinate to laws in countries they DON'T operate out of.

Read NAFTA's Chapter 11 for details.

Need some examples of how it's been used to undermine democracy? OK.

1. Metalclad v. Mexico

2. Methanex v. California

There are 12 other PUBLIC lawsuits pending, but possibly many more since they can be done in SECRET!

It's slightly Japanese, but without all of that fanatical devotion to the workplace. - CheeseburgerBrown
[ Parent ]

I'm fairly familiar with NAFTA (none / 0) (#80)
by RyoCokey on Thu Jul 10, 2003 at 12:37:49 PM EST

Yes, but under NAFTA, they are not subordinate to laws in countries they DON'T operate out of.

Well, of course. This is a commonly held principle in almost all legal systems. I assume you mean that they aren't responsible even if they have a physical presence in the country. That leads to my second point:

NAFTA's provisions allowing lawsuits about laws isn't that unusual. It has to do with the nature of treaties. The primacy of international treaties over sovereign laws is nothing new... the WTO does such, as do other trade agreements prohibiting tarrifs that would otherwise be legal under the countries' laws.

In particular, NAFTA prohibits nationalization and confiscation of corporate property (With public domain exceptions.) At least in the first case, the court was absolutely right to rule against Mexico, in that it improperly denied Metalclad the permit.

The Rule of Law and possession of private property is a far higher moral imperative than simple democracy. The majority does not have a right to murder you or seize your property.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
heh. (none / 0) (#83)
by Run4YourLives on Thu Jul 10, 2003 at 01:51:26 PM EST

The Rule of Law and possession of private property is a far higher moral imperative than simple democracy.

Not in my mind. And this is where we will differ greatly.

The state of society, as served by the democratically elected government, trumps private property, at all times.

At least it's supposed to, unless of course you are of the viewpoint that society is to lay down to the whims of a market, a common theory in modern capitalism; a distinction from earlier forms of capitalism, (my original point) but similar to the earli*est* forms of capitalism.

It is in fact quite immoral, to suggest that a government, being the extention of the will of the people, subject itself to the grevances of a corporation's self serving motives, particularly with regards to ensuring the public safety of its constituents.
 

It's slightly Japanese, but without all of that fanatical devotion to the workplace. - CheeseburgerBrown
[ Parent ]

So what is your ideal state? (none / 0) (#88)
by RyoCokey on Thu Jul 10, 2003 at 05:05:19 PM EST

If you wish to be an Act Utilitarian, you're certainly welcome to be one. However, what would your ideal form of government be, then, other than a utopian socialist democracy?

If that is your ideal government, doesn't the utter failure to establish such a state cause you concern as to the integrity of your beliefs?

The original poster to this argument stated that the rule via capitalism was a recent development. Surely the patent protection included in the Constitution dates it back to at least 225 some odd years go. The idea of personal property has existed since before recorded history. The concept that a just rule was to include property protection also dates back thousands of years.

You're certainly welcome to state you believe that:

The state of society, as served by the democratically elected government, trumps private property, at all times

But would you care to explain why no successful government has ever implemented this?



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
um... (none / 0) (#89)
by Run4YourLives on Thu Jul 10, 2003 at 08:12:00 PM EST

If you examine western economic policies of the post WWII period, including in the US, you'll see that Keynesian methods, although still capitalist, were indeed effective in placing the state above the market.

Even better, economic performance and GDP growth during the 20 years following the war surpassed the last twenty years; we were even doing better economically when we "controlled" the market! Unfortunatley, an energy crisis that would probably cause another depression today gave rise to Reganomics, Thatcherism and the "New" Capitalism that I, and the original poster were referring to...such is life.

As far as utopian socialist states, the city of  Vienna (or Red Vienna) at end of WWI was such a place. Unfortunatley, most western nations were too busy trying to survive to notice. Of course, being in vicinity of Germany, the oasis of socialism was short lived.

As well, capitalist-socialist blending experiments have produced wonderful countries in Northern Europe and, until very recently, Canada.

Please note that I do not condone aboishing Private Property (which has also been done, see USSR, China, Vietnam), but simply to ensure that such a concept, and well as others work for the betterment of society, not the other way around.

It's slightly Japanese, but without all of that fanatical devotion to the workplace. - CheeseburgerBrown
[ Parent ]

A couple of points (none / 0) (#90)
by cr8dle2grave on Thu Jul 10, 2003 at 10:28:42 PM EST

Even better, economic performance and GDP growth during the 20 years following the war surpassed the last twenty years

The period following WWII was a rather unique period which makes it a poor subject for comparison and an even worse model for structuring a normal economy.

Unfortunatley, an energy crisis that would probably cause another depression today gave rise to Reganomics, Thatcherism and the "New" Capitalism that I, and the original poster were referring to...such is life.

The energy crisis of the 70s was only the final blow to the already seriously faltering economies in America and England. The US was in a state of stagflation, which was supposedly impossible according to the orthodox Keynesian model. And in the US, it wasn't Reagan, but Paul Volker--the Chairman of the Fed brought toward the end of Carter's term--who was the architect of the economic recovery.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
How can that work. (none / 0) (#105)
by Sanction on Fri Jul 11, 2003 at 10:52:13 PM EST

Private property is merely a social construct codified by the government, so how can it be higher than the government?

Wow, This is the most amazing loaf of bread I've ever owned!
[ Parent ]
Private property exists without government (none / 0) (#106)
by RyoCokey on Sat Jul 12, 2003 at 01:53:09 AM EST

In a government, you set up a organized system so that you don't have to personally defend your property 24/7. In the absence of a government, you must use force (yourself) to defend such property. The presence or absence of a government does not affect the existence of private property.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
Huh? (none / 0) (#110)
by Sanction on Sat Jul 12, 2003 at 04:02:17 PM EST

So private property exists, not because people agree it does, but because you will kill anyone who disagrees with you?

Wow, This is the most amazing loaf of bread I've ever owned!
[ Parent ]
Property and possession (none / 0) (#111)
by IriseLenoir on Sat Jul 12, 2003 at 04:24:58 PM EST

Are two very different and widely confused concepts. Possession started with the invent of agriculture and the first human settlements. But it wasn't anything close to what we define as property today.

Webster defines possession as "a : the act of having or taking into control b : control or occupancy of property without regard to ownership". Notice that everything is though of as property today... replace property with ressources and ownership with property to better grasp the definition. Possession requires the possessor to actually possess, which means one cannot possess more than one can use. Possession only requires mutual recognition from peers (neighbors), which is in the interest of everyone because not recognising other's means they will not recognise yours.

This is vastly different from property, which is defined by Webster as "the exclusive right to possess, enjoy, and dispose of a thing", but this is not a good definition, as property is the (absolute), exclusive (and eternal (through heritage)) right to (decide who) enjoys and disposes of, and to destroy a thing. Here, "thing" can be anything and has no limit in scale. Thus someone can have property rights over vast lands he has no mean to possess (use for himself), which can only serve to rent (grant possession rights; both are codified into Common Law, French laws, etc.), or employ people to exploit said ressources for an effortless profit.

Possession can exist in a state of anarchy (notice the small s), but property can only be enforced through Government repression.

A shorter definition of property is simply "the right of windfall", as Proudhon puts it. Property is theft.


"liberty is the mother of order, not its daughter" - Pierre-Joseph Proudhon
[ Parent ]
I hate restating the obvious (3.00 / 1) (#113)
by RyoCokey on Sat Jul 12, 2003 at 09:02:55 PM EST

However, you can most certainly have property without government, and your post was a non sequiter that didn't address the issue, unless you use a non-standard definition of government.

In an anarchy, I can possess rights over vast lands even in the absence of government, if it is known that I'll kill anyone who interferes with said ability. Any particular abstract notion regarding the use of said property can be enforced with brute force, provided I'm individually powerful enough to do so, and others are aware of the fact.

Unless you define "property" as "government protected possessions" it simply doesn't require the existance of either a government or society. If you do use the narrow definition listed above, your original statement was redundant, given that property is already assumed by definition to be government sanctioned.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
How have they failed? (4.50 / 2) (#17)
by Kwil on Wed Jul 09, 2003 at 05:47:26 PM EST

..I mean, just because the effects weren't as pronounced doesn't mean much. The rise of the corporation that has similar monetary clout as small nations is a fairly recent occurrence, and even before that, we had things like the luddites making the government pass laws outlawing automated looms, guilds making the government pass laws guarunteeing them a monopoly over certain daily business activities, etc.

That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze


[ Parent ]
Corporations are less than 300 years old (3.83 / 6) (#18)
by DominantParadigm on Wed Jul 09, 2003 at 05:55:26 PM EST

Governments used to charter corporations that were assembled, fulfilled their duties, then were dismantled. Nowadays, Corporations are eternal citizens with political power that a fascist, human citizen like yourself could only dream of.

Caller:So you're advocating bombing innocent children? Howard Stern:Yes, of course!


[ Parent ]
never worked that way (4.00 / 2) (#33)
by khallow on Wed Jul 09, 2003 at 09:35:10 PM EST

Governments used to charter corporations that were assembled, fulfilled their duties, then were dismantled. Nowadays, Corporations are eternal citizens with political power that a fascist, human citizen like yourself could only dream of.

Corporations have had indefinite lifetimes since the begining. Eg, the East India Trading Company was one such beast. It was incorporated in 1600 and disolved in 1858 though some fragments may exist today. The old Middle Ages guilds often lasted centuries and some may have had their origins in the old Roman empire (eg, stone mason guilds may have started with the builders of the Roman roads).

Stating the obvious since 1969.
[ Parent ]

Still, some care is needed (none / 0) (#55)
by pyramid termite on Wed Jul 09, 2003 at 11:56:10 PM EST

If this is the case, please explain why trade guilds and other state-run businesses failed to have this effect over the past 2000 years of history.

Because no mass media or mass markets were involved. And it's yet to be established that corporations will call the tune, although I believe the potential is there. Just as the government's power has been checked and balanced by law so must corporate power. Concentration of power in any limited sector of society is dangerous.

On the Internet, anyone can accuse you of being a dog.
[ Parent ]
Are people now more or less easy to control? (none / 0) (#75)
by RyoCokey on Thu Jul 10, 2003 at 10:21:46 AM EST

We have "mass media" today theoretically allowing the manipulation of the perception of mass numbers of people. Of course, in earlier times, it was easy to lie to people about events without any means of confirming the truth, especially in distant lands. Additionally, people were more ignorant.

Has the democratic body become easier to manipulate, or less?



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
[ Parent ]
Good question (none / 0) (#77)
by pyramid termite on Thu Jul 10, 2003 at 10:59:04 AM EST

Of course, in earlier times, it was easy to lie to people about events without any means of confirming the truth, especially in distant lands.

But not everybody heard the lies or reacted to them appropriately. In fact, a lot of the "lies" were simple mistakes of ignorance, as the ruling classes didn't have a much better handle on the truth than the masses did.

Has the democratic body become easier to manipulate, or less?

Initially, it was easier - Hitler managed to manipulate public opinion in his country in a way that few have ever managed - and I wouldn't count the crusades, as relatively few people participated in them compared to the populace. However, after a few instances of people being grossly mislead into political movements, or just being talked into buying something that turned out to be a piece of crap, I think people are gradually becoming less easy to manipulate. They've heard it all before and it didn't work for them. Still, we live in fearful and cynical times and much of that is re-enforced by our media. I'd say in some large areas - such as the constant paranoia Americans have of crime and violence, they're still being manipulated. I'd also say the prevelent attitude of "politicians are all lying bastards" is also a manipulation, as it decreases participation. But on other things, such as the Iraq war, it seems that manipulation isn't as effective as it used to be or that it's wearing off quicker. And with the question of Brand X being better than Brand Y - I believe that advertising's effectiveness has worn off considerably.

In short, it's a lot easier to manipulate broad perceptions indirectly than it is to manipulate specifics directly.

On the Internet, anyone can accuse you of being a dog.
[ Parent ]
Failed? (4.66 / 3) (#64)
by NFW on Thu Jul 10, 2003 at 02:22:38 AM EST

Most first-world nations actually have it pretty good, but...

Given the way the United Fruit Company was able to run Guatemala - and even get the US government to overthrow the country's first democratically elected government - I'm not sure the word "failed" is entirely appropriate.

Then there's the US-backed installation of the shah (nice guy!) in Iran after Mohammad Mossadegh's nationalization of the oil industry. Oil companies might have had something to do that THAT regime change.

Then consider nations (e.g. Mexico) in which labor unions are outlawed (or just violently suppressed) to keep labor costs low.

Then there's fascist Italy. Admittedly, it didn't last long, but fascism is all about the merger of state and corporate authority.

And that's just off the top of my head. We have it pretty good in the first world, but commercial corruption of government, with disastrous effects on civilian freedom, is by no means unheard-of.


--
Got birds?


[ Parent ]

Let's see... (3.00 / 6) (#13)
by RyoCokey on Wed Jul 09, 2003 at 03:59:33 PM EST

It's a court ruling coming out California. Look for it to be overturned with all due haste. I'm not sure what they put in the water coolers out there, but the rest of the US judicial system rarely likes it.



"During election times, we tend to lose our grandmothers, grandfathers and young children. They just disappear. But I want to warn you all that you should
LoL. Certainly seems to be the case. (none / 0) (#117)
by porkchop_d_clown on Tue Jul 15, 2003 at 11:13:10 PM EST

Of course the SCOTUS just announced they were using international law to interpret the US constitution, so who knows what's going to happen anymore...


--
His men will follow him anywhere, but only out of morbid curiousity.


[ Parent ]
I wish you'd made your point (4.75 / 4) (#22)
by Kasreyn on Wed Jul 09, 2003 at 06:52:04 PM EST

before the penultimate paragraph of your piece. =P

What you hint at is indeed the case. A corporation is not a person. Are we expected to believe that it has full First Amendment protections, including the right to mislead?

Of course, I personally am against the idea of corporations even being treated as legal entities... I guess I'll drop that, though, and concentrate on the battles I won't lose as badly. :-P

If the SC were to allow Nike's defense under First Amendment, the logical consequence would be to strike down Truth in Advertising laws as unconstitutional. I personally hold out hope that the SC is not *quite* foolish enough to make that sort of egregious blunder. Therefore, I feel Nike doesn't have a leg to stand on, and is just bluffing and running up legal fees in an effort to force the plaintiff(s?) to give up.


-Kasreyn


"Extenuating circumstance to be mentioned on Judgement Day:
We never asked to be born in the first place."

R.I.P. Kurt. You will be missed.
Why that won't happen. (3.00 / 1) (#24)
by waxmop on Wed Jul 09, 2003 at 07:03:19 PM EST

Kasky is suing with the help of some trial lawyers that are licking their chops at winning a cash settlement vs. Nike. Typically, trial lawyers don't charge any fees to the client ahead of time, and then take a hefty chunk of the winnings, like 50% or so. Nike can't win by outlasting Kasky financially.
--
We are a monoculture of horsecock. Liar
[ Parent ]

Not quite (3.00 / 1) (#28)
by cr8dle2grave on Wed Jul 09, 2003 at 09:20:46 PM EST

If the SC were to allow Nike's defense under First Amendment, the logical consequence would be to strike down Truth in Advertising laws as unconstitutional.

The issue in this case is where exactly to draw the line between commercial speech and protected speech, not whether that line should exist at all. The most radical possible outcome in Kasky v. Nike would be a judicial ruling holding that all speech by a corporation is necessarily commercial in nature. Nothing in the California Supreme Court ruling suggests that they are inclined to adopt such an extreme posture and SCOTUS would almost certainly overrule them if they did.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
why? (3.00 / 5) (#35)
by khallow on Wed Jul 09, 2003 at 09:55:56 PM EST

Of course, I personally am against the idea of corporations even being treated as legal entities... I guess I'll drop that, though, and concentrate on the battles I won't lose as badly. :-P

I guess this will just be flamebait, but why do you think this? Namely, corporations employ the majority of people in the country (as far as I know). Destroying corporations (what it sounds like you are proposing) would probably result in a large job loss. Is Uncle Sam or the bountiful state of California going to replace their jobs? Not likely.

Stating the obvious since 1969.
[ Parent ]

Misspoke myself (4.80 / 5) (#43)
by Kasreyn on Wed Jul 09, 2003 at 10:51:54 PM EST

What I should have said was, I'm against corporations being legally treated as PERSONS. I have no problem with corporations being legally recognized organizations - but that is all. Just an organization, and nothing more. I have no problem (at least, no legal problem) with capital, investment, stock ownership, or any of the other minutiae that comprise corporate reality. My only problem is with the Supreme Court ruling recognizing corporations as being legally equivalent to persons.

[rant]

Instead we have this crackpot system where a corporation is treated in many ways as if it were a person. We give it the rights of a person, without holding it to the same ethical responsibility in society as a person. In fact, it isn't POSSIBLE to hold a corporation to human ethical standards, because corporations are simply not human. To a corporation, there is nothing fundamentally wrong with throwing infants in vats of sulfuric acid, if it would increase their profit. They are amoral "entities" (if you could call them that) whose lifeblood is money. Trying to call them persons in a system originally designed for humans, most of them not amoral, is just silly.

[/rant]


-Kasreyn


"Extenuating circumstance to be mentioned on Judgement Day:
We never asked to be born in the first place."

R.I.P. Kurt. You will be missed.
[ Parent ]
ok, I get it (none / 0) (#44)
by khallow on Wed Jul 09, 2003 at 10:56:02 PM EST

Sounds ok to me. But remember that corporations (at least as they are now constituted) are managed by humans, communicate through humans, employ humans, and generally provide stuff that humans want. So granting them some rights is reasonable. But yea, corporations just ain't people.

Stating the obvious since 1969.
[ Parent ]

Corporations as legal individuals (1.00 / 1) (#71)
by mikelist on Thu Jul 10, 2003 at 06:31:27 AM EST

It seems to me that corporations are not persons, although its officers and agents are. Logically then, constitutional rights do not apply in the case of any public statements they make, they are 'advertising' to stockholders and that segment of concerned citizens who are easily dissuaded.

[ Parent ]
I think ... (5.00 / 3) (#73)
by Simon Kinahan on Thu Jul 10, 2003 at 09:45:00 AM EST

... the question of natural versus artificial personhood is irrelevant here. The real issue is the line between commerical and non-commercial speech. Speech by individuals can be commericial just as much as speech on behalf of corporations can be.

The right to free is speech is not absolute. You're not allowed to shout fire in a crowded theatre. You're not allowed to make false statements in support of your business interests. Both these things are true for individuals and corporations.

Regardless of their artificial personhood, companies should be have the same rights as individuals to speak freely, under the common law principle that what can lawfully be done by one person can be lwfully done by any number.

Regarding the specific case, I believe there is a prima facie legitimate question as to whether Nike's speech was actually commercial. Probably it was, but it isn't obvious. The other question, of course, is whether they knowingly lied. Given the way they organise their business, I suspect they actually didn't, although there's still an issue as to whether arranging things so that you can remain ignorant of inconvenient facts really counts as not knowing.

Simon

If you disagree, post, don't moderate
[ Parent ]

Once (5.00 / 2) (#26)
by auraslip on Wed Jul 09, 2003 at 08:23:54 PM EST

Some one wanted to order a special pair of shoes from nike. For an extra fee you could have them customized with what ever letters you want, straight from their website.
This someone ordered a pair with the words
<b> "sweatshop"</b>
Brightly and happily on each side.
Hillarity insued....
___-____
Didn't work (5.00 / 5) (#29)
by godix on Wed Jul 09, 2003 at 09:21:17 PM EST

Nike canceled the order. It even made some papers. The story is large enough that even snopes talks about it.


"I think you're right"
- Rusty speaking about godix
Hey, it's my damned
[ Parent ]
Why take this to court (4.20 / 5) (#27)
by godix on Wed Jul 09, 2003 at 09:08:38 PM EST

Nike did not lie. They basically said 'things are improving' which is not a fact but an opinion.

Nike is not harming consumers. Their products are not dangerous, are not killing people, and they are not hiding this fact.

Nike is not violating American laws. American labor laws don't apply to non-American countries with non-American workers.

Nike is not commiting fraud. The deal they offer is you give them money and they give you shoes. This is exactly what they do.

Nike is not doing false advertising, they didn't run a single commercial claiming they didn't use sweatshops.

Nike are a bunch of assholes. It takes a special type of SOB to not only ignore starving people but to actually use and abuse them for money. However being a bastard is not illegal. If it were most of K5 would be jailed by now.

So why take Nike to court? What type of twit decided that the only resolution to this was through a judge? How stupid do you have to be to think the nation is better off spending time, effort, and money to prosecute Nike instead of going after real fraud, IE Enron? Don't we have enough vendetta like bullshit going through our courts as it is? Why did this moron quit passing out flyers and start hiring lawyers? Hey fuckhead, the justice system isn't there to persecute any company you don't like, it's there to uphold the law and address actual harms DONE WITHIN THE COURTS JURISDICTION. This piece of shit suing Nike is no better than the RIAA going after college students; they're both perfect examples of bastards trying to use to courts to ruin someone elses life for doing something that causes little or no harm. I'm with you when you're running a boycott or educating people on working conditions but when you start thinking you can sue someone out of existance because you don't like them it's time for me to switch sides.


"I think you're right"
- Rusty speaking about godix
Hey, it's my damned

Why not? (2.00 / 1) (#45)
by lachlan on Wed Jul 09, 2003 at 11:04:45 PM EST

So why take Nike to court? What type of twit decided that the only resolution to this was through a judge? How stupid do you have to be to think the nation is better off spending time, effort, and money to prosecute Nike instead of going after real fraud, IE Enron?

Simply because fraud isn't the issue here. It was about making misleading statements

Nike finds the cheapest labour in the world, exploits this, makes massive profits.

Agreed - the whole Enron debacle was a massive fraud, a lot of good people lost a lot of money. But at the end of the day, these people live in a wealthy country where they existance is pretty much guaranteed.

When Nike (or any other multinational corp) screws you in a sweatshop, if you don't work - you've got a good chance of dying.

In my opinon this is a good use of the courts - fighting for people who can't fight for themselves.

[ Parent ]

Wrong court (3.00 / 1) (#49)
by godix on Wed Jul 09, 2003 at 11:22:50 PM EST

You're missing something. The people Nike hurts are not Americans. They are not on American soil. They are not protected by American laws. They are not under the jurisdiction of American courts. Show me a case of an American citizen, on American territory, working in a Nike sweatshop and I'll agree wholeheatedly that court action is required. The issue would be over violation of labor laws, not some bullshit 'Saying things are getting better is misleading advertisement'.

Besides, a decent arguement could be made that Nike is helping third world people. If the choice is working a sweatshop for a dollar a day or dying from starvation then the sweat shop is a good thing. You and I may find it horrible but obviously there are plenty of third world workers who think being in a Nike sweatshop is their best option. Based on this viewpoint Nike is correct when they say 'things are improving'. Compared with mass unemployment and starvation a Nike sweatshop is indeed an improvement. Don't misunderstand me, I'm not saying sweatshops are a good thing here. They exploit and maintain horrible conditions and worse of all the product and profit of third world labor is taken out of the third world instead of being used to help boost it up. I'm just pointing out the arguement is more complex than 'sweatshops bad. Nike bad. Asshole suing good.' and the issue is better solved by improving conditions in the third world than changing Nike's business practices.

Regardless of that arguement, courts are not the way to solve third world problems. Lets assume Marc Kasky's wildest dreams come true and Nike moves all manufacturing into American with union scale wages. What's the result of his do gooding and misapplied lawsuit? A third world country that sudden has a couple hundred people who's income level just fell from $1 a day to nothing a day. What a wonderful help that is to those workers. Marc is pursuing a lawsuit which shouldn't even be in American court, he's persecuting a company just because he doesn't like their unethical (but legal) actions, and if he somehow won his cause all the people he's fighting for would be worse off for it.


"I think you're right"
- Rusty speaking about godix
Hey, it's my damned
[ Parent ]

Which other court would you go to? (none / 0) (#54)
by lachlan on Wed Jul 09, 2003 at 11:41:27 PM EST

From a legal perspective - I agree with you. Nike isn't harming American workers or violating any American laws. An American court isn't the place to wage this war.

But it's a sad reflection on today's society that going to court is the most effective way of getting something done in the western world.

In this case kasky is probably operating under an assupmtion that the ends justify the means.

The problem is that
a) There isn't another court you can go to.
b) The American court system is the only one that Nike respects. (or isn't able to pay off)

Is a dollar a day better than nothing? Well - it's debateable. These people could be put to work building farming and other infrastructures for the benefit of their country instead of a corporation somewhere else.

That point aside - Why a dollar instead of 10 dollars?

Cheap labour is always going to exist somewhere - that's how economics works - but the fact remains that these people work in substandard conditions for a pittance.

[ Parent ]

Wrong! (4.75 / 4) (#56)
by pyramid termite on Thu Jul 10, 2003 at 12:00:55 AM EST

You're missing something. The people Nike hurts are not Americans.

But they are hurting Americans who want to buy their shoes from a company that doesn't use 3rd world sweatshop labor. They are misleading them into doing something that's against their conscience.

On the Internet, anyone can accuse you of being a dog.
[ Parent ]
Right court, wrong subject (5.00 / 2) (#68)
by mrchaotica on Thu Jul 10, 2003 at 05:44:36 AM EST

On the contrary, you're missing something. This lawsuit is not about sweatshops or shoes, it's about lying for profit. Whether Nike uses sweatshops or not is irrelevant. What is relevant is whether they claim not to (if they do) or whether they claim there's improvement (if there's not) for the purpose of selling more shoes.

Here's an analogy:

Say a botteled water company is claiming to sell water from a pure artesian spring up in the mountains somewhere, but they actually get their water out of the tap in Mexico City, because they know that everyone wants "pure artesian spring water" but nobody wants "Mexico City tap water" Is that false advertising? YES.

Now, lets hypothetically say a shoe company claimed to be improving the working conditions of their third-world manufacturing plants, and/or that they no longer use "sweatshop labor", because they know that people will not buy shoes made by sweatshop labor. Is that false advertising?

That's what the court is deciding.

[ Parent ]
I tend to agree, but.. (none / 0) (#46)
by Kwil on Wed Jul 09, 2003 at 11:10:58 PM EST

..the reason to take this to court is that the person who did take it evidently didn't agree. For whatever reason they believed that Nike was lying. Since lying for commercial speech is against California law, then I assume that taking it to court must be the way that they enforce that particular law. (Personally, I think a state investigation into the claims would be a better way to go, and then let the state prosecute if they determine the company was violating the law.)

I also think Nike goofed in bringing the whole free speech issue into it, personally. They should have just gone to trial, won it on the merits, and applied a SLAPP countersuit to the guy.

I'm thankful they didn't though, as this looks like an obvious area of constitutional ambiguity -- and it's always good when we can get those sorted out.

That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze


[ Parent ]
causes little or no harm? (4.00 / 1) (#66)
by alizard on Thu Jul 10, 2003 at 02:39:12 AM EST

You really should spend a year or two working in a sweatshop before deciding whether or not any harm is done or not in one. Tell us about it if you happen to survive, not that I really care either way.

You don't believe lying to the public harms it? The point behind freedom of the press is that an informed public is needed in order to exercise the right to vote intelligently. Is impairing the right to know harmless?

A multibillion dollar corporation is in a good position to lie to the public. For instance, about issues that might be turned into legislation which might screw up its profit margin.

Do you think multimillion dollar ad campaigns telling you that smoking is good for you are a good idea? A few generations ago, tobacco companies actually said this to the public.

I think the law is a reasonable balance between the public interest and the ability of a corporation to use sophisticated public relations techniques to deliberately and knowingly lie to the public.
"The horse is dead. Fuck it or walk away, but stop beating it." Juan Rico
[ Parent ]

as a former sweatshop worker (1.12 / 8) (#30)
by BankofAmerica ATM on Wed Jul 09, 2003 at 09:21:19 PM EST

all i can say is that californians are liberal fuck faces that like to protest things but never actually get anything done, like improving our work conditions.

STOP PROJECT FAUSTUS!

not the right question (3.50 / 2) (#31)
by khallow on Wed Jul 09, 2003 at 09:27:53 PM EST

The real question here is: should we allow a corporation to mislead concerned citizens?

No that's not the real question. We haven't even determined yet if Nike has mislead anyone. But rather whether that California law was invalid on First Admendment grounds.

Stating the obvious since 1969.

Hmmm.... (none / 0) (#32)
by waxmop on Wed Jul 09, 2003 at 09:33:51 PM EST

You're focusing on what I would consider the procedural/logical/academic aspects of this topic. What I'm interested in is the what I consider the larger issue: forgetting about the technicalities, what kind of a society do we want to live in?
--
We are a monoculture of horsecock. Liar
[ Parent ]

Larger issues (4.00 / 1) (#38)
by khallow on Wed Jul 09, 2003 at 10:08:20 PM EST

You're focusing on what I would consider the procedural/logical/academic aspects of this topic. What I'm interested in is the what I consider the larger issue: forgetting about the technicalities, what kind of a society do we want to live in?

I hate to be bothersome here, but if you wanted to talk about that, then pick an appropriate subject. Nike and the opposition are just legally manuevering here. I don't see any deep questions being addressed by this conflict.

Having said that, I think that the current debate underscores that every debate of importance these days gets into the courts. Is this the proper way to decide things? I think not. If the accusor had a real case, why not bring it to the news media? It sounds more like a looting of a business rather than a correcting of a wrong.

Stating the obvious since 1969.
[ Parent ]

First Amendment (4.25 / 4) (#34)
by igny ignoble on Wed Jul 09, 2003 at 09:35:42 PM EST

No that's not the real question. We haven't even determined yet if Nike has mislead anyone. But rather whether that California law was invalid on First Admendment grounds.

I'm not an American, but it's my understand that corporate speech isn't a protected right under your constitution. Am I misunderstanding something?

[ Parent ]

Re: First Amendment (none / 0) (#36)
by khallow on Wed Jul 09, 2003 at 09:58:55 PM EST

I'm not an American, but it's my understand that corporate speech isn't a protected right under your constitution. Am I misunderstanding something?

Why wouldn't it be? After all, who speaks when a corporation speaks? Answer: a person who's right to free speech is protected by the First Admendment.

Stating the obvious since 1969.
[ Parent ]

wrong.. (5.00 / 2) (#47)
by Suppafly on Wed Jul 09, 2003 at 11:17:27 PM EST

Why wouldn't it be? After all, who speaks when a corporation speaks? Answer: a person who's right to free speech is protected by the First Admendment. You might think that is the obvious answer, but you are wrong. It has been ruled that commercial speech generally has little to no first amendment protections. This is why they can ban liqour and cigerette ads, they aren't protected speech, they are commercial speech. Most basic highschool and college level law classes cover this idea.
---
Playstation Sucks.
[ Parent ]
not quite (none / 0) (#58)
by khallow on Thu Jul 10, 2003 at 12:27:06 AM EST

But commercial speech is similarly regulated whether it originate from a corporation or a person. What's different is that much of what a corporation says is considered commercial speech while the opposite is true for individuals. Hence, corporate speech is equivalent in terms of protection offered by the Constitution and its admendments to personal speech.

Stating the obvious since 1969.
[ Parent ]

quite. (none / 0) (#59)
by Suppafly on Thu Jul 10, 2003 at 12:35:49 AM EST

But commercial speech is similarly regulated whether it originate from a corporation or a person. What's different is that much of what a corporation says is considered commercial speech while the opposite is true for individuals. Hence, corporate speech is equivalent in terms of protection offered by the Constitution and its admendments to personal speech.

There is no such thing as corporate speech, the courts recognize 2 types of speech, Protected Speech and Commercial Speech (Non-Protected Speech). If the speech is of a commercial nature between a seller and a buyer it is commercial speech and unprotected by the first amendment. Any other speech is protected, they don't distinguish between who makes it.
---
Playstation Sucks.
[ Parent ]
Non-protected speech... (5.00 / 1) (#60)
by cr8dle2grave on Thu Jul 10, 2003 at 01:08:22 AM EST

...also includes obscenity, threats, libel/slander, incitements to riot, etc...

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
so we agree (none / 0) (#61)
by khallow on Thu Jul 10, 2003 at 01:34:48 AM EST

There is no such thing as corporate speech, the courts recognize 2 types of speech, Protected Speech and Commercial Speech (Non-Protected Speech).

Sounds right to me. Since we agree, I'm calling it a night.

Stating the obvious since 1969.
[ Parent ]

Yeah, but... (none / 0) (#62)
by NFW on Thu Jul 10, 2003 at 01:39:57 AM EST

If the lawsuit was filed against the Nike spokesperson who made the statement, then your observation would be relevant.

Since the suit was filed against Nike itself, and not a Nike spokesperson, I don't think that it is.


--
Got birds?


[ Parent ]

Yep (5.00 / 4) (#37)
by cr8dle2grave on Wed Jul 09, 2003 at 10:04:18 PM EST

...it's my understand that corporate speech isn't a protected right under your constitution. Am I misunderstanding something?

Commercial speech does not enjoy the full protection of the first amendment whether made by an individual or a corporation. Likewise protected speech is, well, protected no matter who's doing the talking.

---
Unity of mankind means: No escape for anyone anywhere. - Milan Kundera


[ Parent ]
on a related note... (none / 0) (#63)
by NFW on Thu Jul 10, 2003 at 01:50:45 AM EST

I had lunch with a lawyer a few years ago who said (conversationally, not in a professional context) that a number of lawyers believe that commercial speech will eventually enjoy more freedom and protection than non-commercial speech. Why? Because the entities that produce commercial speech and defend commercial speech in the legislature and courts, tend to have far more money than the entities that produce and defend non-commercial speech.

In other words, businesses will eventually be able to speak more freely than individuals, because businesses can litigate more effectively and lobby more effectively. Cases brought by companies against individuals who displease them, or by individuals against companies who displease them, will tend to come out in favor of the companies, because individuals cannot afford comparable legal teams. Laws relating to speech will tend to favor commercial speech more so than non-commercial speech, because companies can afford more and better lobbists than the rest of us.

Cynical, but plausible.


--
Got birds?


[ Parent ]

not exactly. (5.00 / 2) (#48)
by Work on Wed Jul 09, 2003 at 11:18:43 PM EST

commercial speech isn't protected. That is, I cannot claim my product X does something it does not do.

However, the speech of a corporation is very much so protected, since corporations were granted personhood rights long ago.

The issue here is whether nike's inaccurate claim was commercial speech or not. I'd be highly surprised if this hasn't come up somewhere else in previous cases.

[ Parent ]

Question. (none / 0) (#67)
by SoupIsGoodFood on Thu Jul 10, 2003 at 03:10:45 AM EST

Since Nike Corporation is a commercial corporation, doesn't that make everything Nike says commercial speech?

[ Parent ]
Answer. (none / 0) (#69)
by mrchaotica on Thu Jul 10, 2003 at 05:53:49 AM EST

IANAL, but it seems logical to me that "commercial speech" means speech intended to persuade people to buy the corporation's products. Thus advertisements would be commercial speech, lobbying would be questionble, and something about an issue not relevant to the company's industry would not be.

[ Parent ]
You sure? (none / 0) (#70)
by SoupIsGoodFood on Thu Jul 10, 2003 at 06:28:32 AM EST

To me, it seems more logical that any speech/communication to the public is always for commercial reasons. Not just advertisments, as what can be considered as advertising can be a bit fuzzy now days.

[ Parent ]
No, not sure (none / 0) (#92)
by mrchaotica on Fri Jul 11, 2003 at 01:42:19 AM EST

"Noncommercial speech" by a corporation is certainly a grey area. I can't think of any specific examples right now, but I'd think that some of the things that companies do, such as donating to charaties (or rather, announcements they make about doing so) might qualify. Donating to charity is useful to the companies for tax and image purposes, but it isn't direct product advertising.

[ Parent ]
Mass Media? (none / 0) (#96)
by Sniffel on Fri Jul 11, 2003 at 01:27:55 PM EST

Most of the mass media is well, companies.

[ Parent ]
save martha! (3.50 / 2) (#39)
by crazycanuck on Wed Jul 09, 2003 at 10:09:41 PM EST

she wasn't misleading the police and stockholders, she was exercising her right to free speech!

Who, exactly, did she mislead? (none / 0) (#115)
by porkchop_d_clown on Mon Jul 14, 2003 at 12:06:40 PM EST

I mean, I've been wondering - since she's charged with claiming she was innocent of charges that were, in fact, dropped for a lack of evidence....


--
His men will follow him anywhere, but only out of morbid curiousity.


[ Parent ]
when i was eight... (4.00 / 4) (#40)
by rmg on Wed Jul 09, 2003 at 10:12:00 PM EST

i got a pair of nike pumps because i thought they would make me jump higher.

_____ intellectual tiddlywinks

Legal lying versus advertising (4.66 / 3) (#41)
by Seth Finkelstein on Wed Jul 09, 2003 at 10:16:46 PM EST

Here's the problem. Consider the following:

1) Label on product - "Our sneakers made with sweatshop-free labor"
Is this a protected editorial comment or an advertising claim?

2) Corporation issues a press release to the news media - "Our sneakers made with sweatshop-free labor"
Is this a protected editorial comment or an advertising claim?

As a general rule, legally, there's great latitude to lie in editorials (just read one), but the range of lying is somewhat restricted when dealing with "false advertising".

So how far can one go to escape the "false advertising" laws by saying that it's an editorial?

Note the answer can't (or shouldn't) be "infinite", else we'll end up with "Editorial: In order to boost the flagging economy, Nike announces the following products, made with all-American labor and all-American materials ..."

-- Seth Finkelstein

bad example (4.50 / 2) (#50)
by Work on Wed Jul 09, 2003 at 11:26:51 PM EST

product introduction is clearly a form of advertising and thus regulated. A label is as well. Such as I cannot put a sticker saying 'will cure cancer' on my snake oil, or you cannot put inaccurate ingredients on food products.

There isn't a formulaic way to detail what is commercial speech and what isn't. The context of the message and the venue, and of course the message itself must be taken into account. For example, if you e-mail nike about it and they reply back with 'no we don't use sweatshop labor', then that is likely protected. However, if they put up a billboard saying 'Sweatshop labor free!' then it may well not be, due to the fact a billboard is a traditional advertising venue and instead of serving as a reply to someone's complaint, it serves as an incentive to purchase the product.

It's all very gray, and unfortunately the author of this story leaves out these necessary details of context, venue and medium.

[ Parent ]

oh, also intent. (4.00 / 1) (#52)
by Work on Wed Jul 09, 2003 at 11:31:59 PM EST

Can't forget the importance of intent. If the statement is inaccurate as a result of ignorance, then its probably protected as well. The plaintiff would have to show nike was deliberately misleading consumers with the intent of sales resulting from said misleading.

If i were to guess, i'd say the plaintiff is on thin grounds for a lawsuit.

[ Parent ]

The other side of the issue (2.85 / 7) (#74)
by Silent Chris on Thu Jul 10, 2003 at 10:13:53 AM EST

Warning: I deal with PR professionals who are aghast by the whole case, and worry it could rip their jobs apart.

Free speech is free speech, whether granted to an individual, a corporation, etc.  Turn the tables slightly.  Say you were running a company that created t-shirts.  Someone comes up to you and says they're being made by sweatshops.  Let's pretend in this situation (unlike Nike's) they are absolutely not being made in sweatshops, you know this, and you're against sweatshops vehementally.

If Kasky wins this case, what you claim your company's truths to be is irrelevant.  Anybody could come up to you and claim your products are made by slave labor / with illegal laundered money / out of people like Soylent Green.  It doesn't make any difference, because your truths aren't real as they're not the majority's opinion.  Essentially, this case says majority opinion is more important than free speech, ripping apart much of the judicial system in the process (any situation where truths go against the majority would be overruled).

The issue here isn't whether or not Nike is a group of assholes.  They are.  It's pretty clear they went with sweatshop labor.  However, they should be free to argue against activists whether or not those activists think they're telling the "truth" or not, whether or not people think they're being "mislead" or not.  Freedom of speech gives the right to lie, gives the right to use money, if people wish, to advertise their views.  Any argument against this accelerates the spiral of free speech even further downward.

They are free to argue... (5.00 / 1) (#78)
by waxmop on Thu Jul 10, 2003 at 12:08:12 PM EST

They just can't make false statements. The original lawsuit alleges Nike's statements were false. If Nike's statements weren't false, or the plaintiff can't prove them to be false (remember who has the burden of proof here), then Nike is ok.

However, instead of debating the merits of the allegations, Nike wants to short-circuit the whole process. They want to end the prohibition on false advertising.
--
We are a monoculture of horsecock. Liar
[ Parent ]

Commercial Speech Case History--not what you think (3.75 / 4) (#81)
by SilentE on Thu Jul 10, 2003 at 12:57:50 PM EST

There are several cases that actually come out of California on the question of corporate speech--most of them granting corporations the speech rights that they deserve. First National Bank of Boston v. Belloti established that corporations have the right to comment on issues of public interest (the context was a proposed state income tax law) that directly affect the corporation. The courts side with FNBofB. Other cases like PG&E v. Public Utilities Commission of California establish that California can't mandate what Pacific Gas and Electric put in their own news letters (the state wanted information about Green energy sources, i.e. PG&E's competitors). The court sided with PG&E. But Kaske is different. It isn't about what Nike says to its own customers, nor is it about an issue on the ballot. They were making claims about their own sneakers in the public sphere. How can that not be commercial speech? All the Kaske case does it provide that corporate speech about one's own products, even if it speaks to a debate of public importance, is subject to California's false advertising laws. This allows people to sue corporations. These suits still cost an arm and a leg, and I do not think we'll be seeing much in the way of frivolous suits. Given that most posters in this discussion agree that Nike is lying, the exemption of commerical speech from the highest level of first amendment protections (not from any protection) seems appropriate, and in keeping with the distinction between commercial and non-commercial speech that we've had in the US for a long time, but codified more recently in Central Hudson v. Public Service Commission of New York.

[ Parent ]
Completely Backwards. (5.00 / 1) (#109)
by wumpus on Sat Jul 12, 2003 at 03:19:02 PM EST

Nike wants to deny use of sweatshops when they actually use them.

In your example, the non-sweatshop t-shirt manufacturer would be out of luck, since all manufacturers would claim sweat-free clothes (and typically be lying). Any actual sweat-free manufacturers would likely be driven out of buisness.

I admit I would be happy to live in a world with PR jobs "ripped apart". I suspect that, like evil, they will always be with us.

Wumpus

[ Parent ]

In an ideal world... (3.00 / 1) (#76)
by Pac on Thu Jul 10, 2003 at 10:56:50 AM EST

The legal concepts granting corporations some rights clearly aimed at individuals in its origin are among the worst problems we will have to face sooner or later.

The fact is, all speech from any employee about his/her company products, practices and policies should be considered commercial. Even in the worst cases of misleading and criminal behavior by a corporation, it is extremely rare for an insider to step forward and denounce the company. The conflict of interest is obvious: the company pays the employee.

Unfortunately, that is not how the law and Courts understand it in the United States. If Nike can show they were not speaking "commercially", they can say pretty much whatever they want. As can Enron, as can Monsanto, as can the tabacco companies...

So, when a Nike's mouthpiece says "We don't use sweatshops", Nike can be granted "free speech" protection. Even when they are clearly lying to avoid a marketing backslash.

It would be a jolly development to have corporations brought under a higher standard, where they and their employess were commited by law to always tell the truth. A "Corporate Freedom of Information" Act, if you will, but one preserving trade secrets. Obviously it won't happen, at least not before a lot of blood is drawn all over our globalised world.

Evolution doesn't take prisoners


Personal and Corporate Speech (none / 0) (#84)
by Ruidh on Thu Jul 10, 2003 at 02:48:35 PM EST

Basically, there is and can be no distinction between personal speech and corporate speech. Where would freedom of the press be if "corporate speech" -- that is speech by a corporation rather than an individual -- were unprotectable? Most newspapers and magazines are corporations rather than individual proprietorships.

Similarly, how can one distinguish corporate speech from the personal speech of an officer of the company? If the CEO says "Widgetware is the best source for widgets in the entire country" how is that different from the same statement being made in an ad and just attributed to the company? Any restrictions on corporate speech will hurt the free speech of individuals.

But that's not to say that laws can't punish false and misleading commercial speech. The Supremem Court will eventually rule on the question of whether this kind of commercial speech can be criminalized. The Supreme Court will also eventually rule on whether the California law which allows private attorneys general to bring this kind of case is constitutional.

THis case came up for review at a very early stage in the proceedings. SCOTUS should not have granted certeriori and they eventually realized this. The record just isn't ready to address the kinds of issues being raised here.
 
"Laissez-faire is a French term commonly interpreted by Conservatives to mean 'lazy fairy,' which is the belief that if governments are lazy enough, the Good Fairy will come down from heaven and do all their work for them."
[ Parent ]

This sounds absurd to me (2.00 / 1) (#85)
by TheModerate on Thu Jul 10, 2003 at 03:17:41 PM EST

So some activists don't like how Nike produces its products. So you sue them for misleading consumers---even though it was the consumers who were mislead in the first place. Wouldn't it make better sense for these consumers not to buy Nike products?

Rather, there seems to be no law against using labor overseas with unsatisfactory working conditions. But that is the issue, isn't it?

This is the problem when you suddenly wish to consider the issue in terms of right and wrong, you are suddenly forced to become deceptive---so much for our standards of truthfulness. In fact, any sense of actual honesty takes task with the moralist himself: why be moral? what needs are you exhibiting when you suddenly ask other people to be moral?

Personally, I can't see making someone responsible for misleading someone else. Such a policy sounds disasterous to anyone who risks telling the truth, if there is anyone left who knows what telling the truth means.

"What a man has in himself is, then, the chief element in his happiness." -- Schopenhauer

It has nothing to do with misleading. (none / 0) (#104)
by Sanction on Fri Jul 11, 2003 at 10:41:55 PM EST

This has nothing to do with misleading, it has to do with the company lying. This is a very distinct concept, and fairly clear. I don't quite understand your entire point though. When someone bases their decision on information you give them, and you lie to them, how is it their fault if they reach an incorrect conclusion?

Wow, This is the most amazing loaf of bread I've ever owned!
[ Parent ]
I was basing my post on the article (5.00 / 1) (#114)
by TheModerate on Sun Jul 13, 2003 at 08:27:47 PM EST

And the article didn't say anything about Nike "lieing", rather he used "misleading." So thats how I took it.

"What a man has in himself is, then, the chief element in his happiness." -- Schopenhauer
[ Parent ]

the issue (none / 0) (#107)
by cburke on Sat Jul 12, 2003 at 12:47:42 PM EST

the issue is not the labor practices. that is just what pissed people off. the issue is that nike allegedly lied about changing those practices. you say boycott. it was already happening, and nike made these statements as damage control. if you lie to someone for commercial gain, that is called fraud.

[ Parent ]
a decision to support a boycott... (none / 0) (#118)
by mikelist on Sun Sep 14, 2003 at 11:25:45 AM EST

... or not, could have been made on the basis of those misleading statements, which seems to be one of the reasons these questionable statements were made. I'm distressed with the way people tend to abdicate their decision making process based on sound bite documentation. There is absolutely NO EXCUSE for dishonesty, I was under the impression that deliberate falsehoods are not protected as free speech.

[ Parent ]
Corporations Desecrating the Constitution (4.00 / 1) (#86)
by luisao on Thu Jul 10, 2003 at 03:35:02 PM EST

Great to see this issue getting some attention and to find an organization ( http://ReclaimDemocracy.org ) focused directly on regaining control over corporations, but works to create real democracy, not to grind a left/anti-business axe. More folks should check them out. If Nike was sued for innocently mistakes that mislead some people, they'd have had the case tossed years ago--it's about claiming a right to lie with no accountability.

Truthfulness (none / 0) (#91)
by mberteig on Thu Jul 10, 2003 at 11:30:34 PM EST

At some point, a human being has to make a decision, either alone or collectively, to have the corporation "speak". With that in mind, consider this:

Truthfulness is the foundation of all human virtues.
Say: O brethren! Let deeds, not words, be your adorning.

Both quotations by Baha'u'llah




Agile Advice - How and Why to Work Agile
All truth is relative! (4.00 / 1) (#93)
by Ta bu shi da yu on Fri Jul 11, 2003 at 10:05:46 AM EST

In a society where there is no longer such a thing as absolute truth, should the fact that a corporation that's trying to weasel out of it's responsibilities by claiming they can say what they want come as a surprise?

Yours humbly,
Ta bù shì dà yú

---
AdTIה"the think tank that didn't".
ה

Please take some time to think (5.00 / 2) (#100)
by phlux on Fri Jul 11, 2003 at 03:02:28 PM EST

This is BS. Truth exists absolutely regardless of your awareness of it. There is such a thing as truth, although our society is continually being conditioned to accept the first thing they are told without doing any follow-up thinking or research. The attention span and memory of the Human race is being degraded and driven into oblivion by emotional manipulation so as to ensure that our minds are effortlessly directed by the currents of media hype. as we move from the next big thing to the next big things, whether it be shocking violence, wrenching fear, corporate or political scandal - we become numb to our emotional responses to truth and un-truth. as we are hardened against not listening to our intuition and emotional selves - we become pavlovian response organs that can be led to any conclusion desired. This puts us into a position of becoming apathetic about the whole state of our reality and eventually we develop into a state where we can simply state that there is nothing that is absolutely true any longer - so "How can we be surprised"

[ Parent ]
Absolute truth? Thats news to me (none / 0) (#102)
by Edgy Loner on Fri Jul 11, 2003 at 05:22:49 PM EST

Are you sure about that?
I think you'll find the universe is a tad more nebulous than that. Look at physics. It's not absolute perfect truths/untruths with crystalline mathematical clarity. It's messy probablities and likelyhoods. Everything depends on context, frame of reference. All frames of reference are equally valid.
Is light a particle? Is it a wave? Well that depends on how you look at it. Is anything a particle or a wave? Again, it depends.
You can't tell where something is and where it's going. If you measure one, you have destroyed any hope of determing the other.

If the universe at it's very core is that indeterminate, can you build anything concrete and absolute on top of it? Not bloody likely.

This is not my beautiful house.
This is not my beautiful knife.
[ Parent ]

Lying bastards (none / 0) (#112)
by mcgrew on Sat Jul 12, 2003 at 08:01:58 PM EST

You sound like my ex wife.

The absolute truth is that the sun is "setting" right now; caused by the earth's rotation. That is unambiguous without "Teh Matrix" mumbo-jumbo. To say that it is dark outside right now and right here is an untruth; a mistake or a lie, not true.

A lie is not true. Period. That is a concrete absolute- concrete absolutes do exist.

"The entire neocon movement is dedicated to revoking mcgrew's posting priviliges. This is why we went to war with Iraq." -LilDebbie
[ Parent ]

If you rearrange the letters (4.00 / 1) (#95)
by Relinquished on Fri Jul 11, 2003 at 01:13:40 PM EST

In

"Holy shit! What the fuck, Nike runs sweatshops and can lie about it! How dare those sons-of-a-bitches... I have no brand loyalty no more; I sued."

you get

"I had no idea. What a bunch of pretentious assholes! I think we should boycott and shirk them away until they confess on overseas labor."

(Please forgive the excessive use of profanity and that double negative. I'd probably come up with better anagrams if my range of vocabulary wasn't so limited.)


--------------
If you rearrange the letters in "anagram for signature" you get "famous at rearranging".


One of the issues I see is: what constitutes fraud (4.50 / 2) (#101)
by Mephron on Fri Jul 11, 2003 at 04:19:06 PM EST

Example: Martha Stewart. She's currently being accused of manipulating the stock prices of her own company by announcing she was innocent of the charges against her in the ImClone trading incident.

This screams to me of someone trying to find something, ANYTHING, that had a chance of sticking, and smells of desperation.

Is a standard "I/we are not guilty of these charges" press release from a company officer concerning criminal or civil charges considered fraudulent? If Martha Stewart is convicted (even though I think she's an annoying bitch), that'll be even worse of a kick in the nuts to 'official' speech of people within corporations than this appears to be.

PoV (none / 0) (#116)
by limekiller on Mon Jul 14, 2003 at 04:52:12 PM EST

waxmop writes:
"...think about this case just in the framework of right and wrong."

"Luke, you're going to find that many of the truths we cling to depend greatly on our own point of view." - Obi Wan Kenobi

Regards,
limekiller

Kasky v. Nike: False Advertising vs. Freedom of Speech | 118 comments (109 topical, 9 editorial, 0 hidden)
Display: Sort:

kuro5hin.org

[XML]
All trademarks and copyrights on this page are owned by their respective companies. The Rest 2000 - Present Kuro5hin.org Inc.
See our legalese page for copyright policies. Please also read our Privacy Policy.
Kuro5hin.org is powered by Free Software, including Apache, Perl, and Linux, The Scoop Engine that runs this site is freely available, under the terms of the GPL.
Need some help? Email help@kuro5hin.org.
My heart's the long stairs.

Powered by Scoop create account | help/FAQ | mission | links | search | IRC | YOU choose the stories!