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Essay on US Supreme Court Case: Nike, Inc. v. Kasky, Marc
The Facts
Nike, Inc. (“Nike”), an Oregon-based corporation, makes and sells athletic apparel. In 1997, an employee of Nike leaked a confidential audit by Ernst & Young about Nike’s labor practices in Southeast Asia. The audit said that workers in the Nike factory were exposed to toxic chemicals without protection, subjected to physical, verbal and sexual abuse, forced to work illegal excess overtime without proper pay, and suffered from poor ventilation and lack of drinking water. Most people in the factories are women under the age of 24.
Nike has been actively writing press releases, sending letters to newspapers, athletic directors, and university administrations since the early 1990s, claiming that workers in Nike factories were treated well. The leaked audit seems to show that Nike’s statements in these press releases and letters were either false or misleading. Marc Kasky is an activist in California who is suing Nike based on a California consumer-protection law that allows one person to sue a company on behalf of all the people of California for consumer-protection violations (New York Times, 2002). Kasky is suing Nike for issuing false or misleading statements to the people of California regarding Nike’s labor practices.
The Issue
Are the statements issued by Nike commercial speech and therefore subject to laws regulating commercial speech, false advertising or other forms of commercial deception or are their statements protected speech?
The First Amendment
The First Amendment guarantees the right to freedom of speech, generally unrestricted by the government. However, there are limitations for certain types of speech. Commercial speech -- speech that is motivated by profit and serves a commercial purpose – can be regulated. In an effort to protect consumers, commercial speech regulation mandates that commercial speech cannot be false or misleading.
To determine if speech is commercial, courts apply a three-prong test, considering the speaker....
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