{"id":264,"date":"2003-07-12T07:33:45","date_gmt":"2003-07-12T15:33:45","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2003\/07\/12\/free-speech-false-advertising-and-nike\/"},"modified":"2003-07-12T07:33:45","modified_gmt":"2003-07-12T15:33:45","slug":"free-speech-false-advertising-and-nike","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=264","title":{"rendered":"Free Speech, False Advertising and Nike"},"content":{"rendered":"

There’s been a lot of good blogging at The Fifty Minute Hour <\/a>lately (a blog which I’ve just this week added to the right-wing section of my blogroll). I think my readers will probably enjoy this post <\/a>about how the US’s war on drug hurts Afghani farmers, and this post <\/a>criticizing father’s rights radio host Glenn Sacks for spreading around dubious info from a biased father’s rights study<\/a>.<\/p>\n

But she’s utterly wrong <\/a>about the Nike v. Kasky<\/i> case<\/a>.<\/p>\n

For those of you unfamiliar with the case, what happened is this: Nike and many activists have been involved in a long dispute over Nike’s labor practices abroad. Nike claimed, in a series of press releases, official letters, and one paid advertisement, that their labor practices were great. Kasky, an activist, decided to sue Nike for false advertising.<\/p>\n

The complaint alleges that, in the course of this public relations campaign, Nike made a series of six misrepresentations regarding its labor practices: (1) “that workers who make NIKE products are . . . not subjected to corporal punishment and\/or sexual abuse;” (2) “that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;” (3) “that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;” (4) “that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;” (5) “that workers who produce NIKE products receive free meals and health care;” and (6) “that NIKE guarantees a ‘ living wage’ for all workers who make NIKE products.” In addition, the complaint alleges that NIKE made the false claim that the Young report proves that it “is doing a good job and ‘ operating morally.’ ”<\/p>\n

The first and second causes of action, based on negligent misrepresentation and intentional or reckless misrepresentation, alleged that Nike engaged in an unlawful business practice in violation of Business and Professions Code section 17200 by making the above misrepresentations “In order to maintain and\/or increase its sales and profits . . . through its advertising, promotional campaigns, public statements and marketing . . . .” The third cause of action alleged unfair business practices within the meaning of section 17200, and the fourth cause of action alleged false advertising in violation of Business and Professions Code section 17500. The prayer sought an injunction ordering Nike “to disgorge all monies” that it acquired by the alleged unlawful and unfair practices, “to undertake a Court-approved public information campaign” to remedy the misinformation disseminated by its false advertising and unlawful and unfair practices, and to cease “[m]isrepresenting the working conditions under which NIKE products are made . . . .”<\/p><\/div>\n

Nike responded by saying that the first amendment precludes Kasky’s suit. The appelate court <\/a>agreed with Nike; the California Supreme Court (pdf file<\/a>) overruled the appellate court and said that Kasky could sue. Most recently, this has been in the news because of the Supreme Court’s decision to let the California ruling stand (although the Court could choose to revisit the issue at a later date, of course).<\/p>\n

Note that what’s at issue in this specific ruling isn’t whether or not Nike lied. (That’ll be determined by a future court case). What’s at issue is – assuming Nike did lie – can Nike can be sued for lying?<\/p>\n

The Fifty Minute Hour argues that Nike wasn’t “attesting to a property of a product they were trying to sell; they were responding to claims that the company is morally bad in some way<\/i>.” But Nike was attesting to a property of their merchandise; how merchandise is made is a property of it.<\/p>\n

In fact, The Fifty Minute Hour agrees with me in the next paragraph: ‘If it turns out that they said, “you should buy Nike shoes because they’re made by happy workers who each make six figure salaries,” and the statements of fact are not true, they shouldn’t be protected.’<\/i><\/p>\n

By saying that, the Fifty Minute Hour is siding against Nike. Nike is arguing that, as a First Amendment matter, they should be protected against lawsuits over false statements like “Nike shoes are made by workers who each make six figure salaries” or (more realistically) “Nike pays average line-workers double-the-minimum wage in Southeast Asia,” so long as those statements are made in press releases and other such outlets, rather than in paid ads. If Nike had won this case, then it wouldn’t be possible to sue them over such false statements<\/i>.<\/p>\n

For the free market to function well, consumers need access to accurate information. Consumers who’d prefer to avoid buying shoes made with virtual slave labor, for example, need accurate information about labor practices in order to be able to express their preferences in the marketplace. Simply to keep the free market running reasonably well, corporations should not be given a right to lie about their products’ characteristics – including how the products were manufactured – in their press releases and public statements.<\/p>\n

Reclaim Democracy has a good page of resources <\/a>concerning this case. (Although they take Kasky’s side in the lawsuit, they also provide links to many pro-Nike arguments.).<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

There’s been a lot of good blogging at The Fifty Minute Hour lately (a blog which I’ve just this week added to the right-wing section of my blogroll). I think my readers will probably enjoy this post about how the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[91],"tags":[],"class_list":["post-264","post","type-post","status-publish","format-standard","hentry","category-free-speech-censorship-copyright-law-etc"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/264","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=264"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/264\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=264"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=264"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=264"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}