Advertising, PR and news media groups had already rallied to Nike's side when it sought an early U.S. Supreme Court test. But the justices last spring refused to decide the case, in effect telling Nike it had to stand trial first-and lose-to bring this constitutional issue back to Washington. Nike's caution has left California's dangerous reading of what is and is not protected business speech on the books and unchallenged. Accepting that status quo is not an option.
The Nike case extends the reach of false advertising law to business statements in defense of corporate policies. On public issues, our system relies on the listener to decide what to believe, and gives speakers wide freedom to make their case. Government rightly polices false or deceptive product claims. But stretching the concept of "commercial speech" to justify intrusion by courts and regulators into other speech areas is fraught with danger.
Corporate policies-on working conditions in overseas plants (the issue in the Nike case), environmental issues, governance and so on-must be open to scrutiny. Marketers must be free to say what they stand for and be ready to defend what they do. Fallout from the Nike case may result in better internal reviews before corporations speak. But it can also chase companies off the platform entirely if a silence born out of of self-censorship is seen as better than running the risks of the California courts.