Fwd: 'Commercial speech' definition debated

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Date: Thu 24 Apr 2003 - 13:42:09 GMT

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    Justices grapple with Nike case

    'Commercial speech' definition debated

    By Lyle Denniston, Globe Correspondent, 4/24/2003

    WASHINGTON -- The Supreme Court spent a prolonged hearing yesterday searching for a constitutional formula to protect the free-speech rights of companies even while preserving government power to regulate commercial messages.

    Although most of the justices engaged in lively debate during the public session, they finished without leaving any strong hints of how they will rule on a major test case involving Nike Corp., the world's leading sports shoe and gear manufacturer.

    Nike has come under fire under a California business fraud law for its public defense of its reputation against critics who say its overseas sneaker factories are run as sweatshops that are threatening people and the environment in Third World nations.

    Much of the court's hearing, lengthened to 70 minutes from the usual 60 because of the case's complexity, was devoted to justices' efforts to define ''commercial speech'' when a company's messages are not purely advertising messages but do help to create a positive public image for the firm and its products. Under the First Amendment, ''commercial speech'' gets less protection than ''political speech'' on public issues.

    Justice Stephen G. Breyer, who emerged as a dominant figure in the questioning, noted that the Supreme Court in 1983 had given First Amendment protection to a company that sent unsolicited flyers in the mail for its birth control devices. He then questioned whether Nike's public defense of its manufacturing practices was different and, if so, how the court could define that difference under the First Amendment.

    Nike's lawyer, Harvard law professor Laurence H. Tribe, said Nike's public relations campaign -- involving letters to the editor, to university presidents and athletic directors, and public speeches -- involved ''an extended argument as to why the claims [of unsavory business practices] were unfounded.'' No part of its message, he insisted, was commercial promotion.

    Nike is seeking to head off a trial of a San Francisco environmental activist's lawsuit against the company, based on claims that its reaction to critics was nothing more than a deceptive campaign to persuade people to buy Nike products. But Tribe said that such a proceeding would lead to the equivalent of a ''verdict of guilty of unlawful business practices,'' branding Nike as a global outlaw.

    Environmentalists were after Nike, the professor argued, as ''the chief exemplar of the evil of globalization'' -- commercial domination of Third World nations by multinational companies.

    Later in the hearing, when the lawyer challenging Nike, Paul R. Hoeber of San Francisco, was at the podium, Breyer continued his quest for
    ''help in writing an opinion'' that would sort out the difference between a First Amendment that encourages ''all of our citizens to engage in public debate'' but that also permits government ''to regulate unfair, deceptive advertising. How do I draw that line?''

    ''The only debate in this case,'' Hoeber replied, ''is what is going on in the shoe factories. That is not the same as a debate about a large public issue; it is about this company's practices.''

    The free-speech cause of Nike and other corporations got a major boost from the Bush administration, as Solicitor General Theodore B. Olson urged the court to strike down the California fraud law because it allows private individuals to sue to enforce it.

    ''California has transferred governmental authority to regulate marketplace speech to anyone with a grievance who can pay the [court] filing fee,'' Olson argued. ''That gives an individual the power to enhance his own agenda, unaccountable to anyone, with no proof that he has suffered any harm.''

    Several justices showed a deep interest in the constitutional challenge to the California scheme, but some indicated that they had doubts that the validity of that private enforcement arrangement was at issue in the case.

    The justices are expected to rule before the end of June.

    This story ran on page E3 of the Boston Globe on 4/24/2003. Copyright 2003 Globe Newspaper Company.

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