US Trains Big Gun on Small Plaintiff in Nike ‘False Ad’ Case

25 April 2003

The US solicitor-general, no less, was trundled out by the Bush administration Wednesday, his sights trained on a lone plaintiff in the California Supreme Court.

Marc Kasky, a former executive director of San Francisco cultural, educational, and recreational center the Fort Mason Foundation, had the temerity and stamina in 1998 to challenge certain advertising statements made by Nike, the globe’s largest manufacturer of shoes and sportswear.

Specifically, he invoked California’s false advertising legislation to accuse the Beaverton, Oregon-headquartered giant of making false and misleading public statements about its treatment of hundreds of thousands of workers employed in Asian factories to manufacture Nike products.

In support of his contention that Nike had issued false statements, Kasky cited company press releases and remarks by ceo Phil Knight claiming that its subcontractors were complying with wage, health and safety regulations.

In May 2002, the California Supreme Court ruled 4-3 that Kasky was entitled to bring the case, judging that Nike’s defensive statements were in essence an attempt to “maintain and increase its sales and profits”. In which light they were not free speech, which is protected against most such claims under the First Amendment; instead the claims should be treated as advertising, which is accountable in law.

Nike promptly appealed the ruling and the Supreme Court agreed to review the case. Enter US solicitor-general Theodore Olson, who on Wednesday urged the court to throw out the lawsuit lest “anyone with a whim, a grievance and a filing fee can become a government-licensed censor”.

Nike was represented by another top gun, Harvard University law professor Laurence Tribe, who told the court that the case could have a worrisome effect on the ability of a corporation to present its side in public debates over labor issues and business practices.

Opined Justice Stephen Breyer: “[Nike] “was probably trying to sell a product and trying to make a statement relevant to a public debate.” The high court might have difficulty in separating the two motives, he added.

Speaking to reporters after pleading the Nike case, Tribe said: “Maybe some of the things they [Nike] said were exaggerations. I don't know. But what I do know is that in our society we do not trust judges to end the conversation by saying, 'OK, I'll tell you [what is] the truth.' ”

Nike has no shortage of supporters, its position backed by an army of corporations as well as the American Civil Liberties Union and the labor organization AFL-CIO. Forty major news organizations also filed a brief in support of Nike [and, cynics add, in defense of the ad revenues it pours into their media properties].

Data sourced from: San Francisco Chronicle; additional content by WARC staff