Nike, Inc. vs. Kasky
Kasky, acting on behalf of the public, brought suit against the Nike Corporation seeking monetary and injunctive relief under California laws designed to curb false advertising and unfair competition. Kasky alleged that Nike, in response to public criticism, and to induce consumers to continue buying its products, made false statements of fact in press releases, letters to newspapers, and other public documents, about its labor practices and the working conditions in the factories that produce its goods. The superior court dismissed the complaint on the basis that the speech in question was non-commercial speech, and the court of appeals affirmed. The California Supreme Court reversed, holding that the speech in question was commercial speech because it was directed by a commercial speaker to a commercial audience, and it made representations of fact about the speaker’s business for the purpose of promoting sales.
Questions Presented:
1. When a corporation participates in a public debate — writing letters to newspaper editors and to educators and publishing communications addressed to the general public on issues of great
political, social, and economic importance — may it be subjected to liability for factual inaccuracies on the theory that its statements are "commercial speech" because they might affect
consumers' opinions about the business as a good corporate citizen and thereby affect their purchasing decisions?
2. Even assuming the California Supreme Court properly characterized such statements as "commercial speech," does the First Amendment, as applied to the states through the Fourteenth Amendment,
permit subjecting speakers to the legal regime approved by that court in the decision below?
Decisions under Review
http://www.courtinfo.ca.gov/opinions/archive/S087859.DOC
http://www.courtinfo.ca.gov/opinions/archive/S087859M.DOC (modification of opinion)
