More than 60 entities, including CBS, the ACLU, The New York Times and even the U.S. government, have filed amicus ("friend of the court") briefs once again with the U.S. Supreme Court supporting Nike in its free speech case, Nike v. Kasky. In January, the highest court agreed to hear the case and the groups are hoping it will reaffirm the First Amendment right to free and open debate and overturn a California state court ruling that restricts the ability of businesses and other organizations to speak out on matters of public importance.
In reaching its decision against Nike in May 2002, the California Supreme Court expressly applied its ruling to statements that appear in op-eds and editorials, as well as to comments made to reporters -- not just paid commercial ads. In Nike's case, the speech at issue included such communications as letters to the editor, in which the company responded to public criticism about alleged workplace conditions in Asian contract footwear factories.
Warning of the dangers of the lower court ruling, the U.S. government wrote in its brief, "California's apparently unique provision that a private party may sue for misrepresentation -- even though the party did not reasonably rely on the statement, did not make a purchase, and was not injured in any way -- has the capacity to chill protected speech."
Additionally, the government said that the Supreme Court "should rule that the First Amendment bars private suits, such as [this one], that challenge the truthfulness of representations that caused the plaintiff himself no harm." It added that Nike's legal position does not undermine the government's existing authority to regulate false, deceptive or misleading speech.
Oral argument before the U.S. Supreme Court is scheduled for April 23, with a decision expected before the end of June.
SNEWS View: Now that the government itself has gotten involved, we are interested to see how its own court will respond!