The essence of the conflict in Nike vs. Kasky is whether companies and their communicators are able to speak in an unencumbered way, to defend themselves after an assault by critics and to be free of litigation harassment from dissenters. A favorable ruling on behalf of Nike would preserve the First Amendment's guarantees for corporations and their communications.
The California Supreme Court decision would label Nike's public pronouncements "commercial speech," not free speech, and therefore make it subject to litigation and possible regulation. The California justices created a new test, based on three standards, to determine what is and is not "commercial speech" under California law. The U.S. Supreme Court previously had discarded all three of these because they could not guarantee freedom of speech.
Impact far beyond Nike
Should the U.S. Supreme Court ultimately uphold the California court ruling, the impact would reach far beyond Nike. Nearly every major company operating in the U.S. sells or does business in some way in California and would be covered by the California court's policy (and be liable to suit in that state's courts).
Unchanged, the Nike vs. Kasky decision has far-reaching implications, and not just for the corporate communications and agency public relations professionals who make public statements for institutions. It also would adversely affect advertising agencies and their allied professions-designers, printers, photographers and copywriters.
The California court's ruling invites critics of a company's policies to file suit and argue that a company's defense of its policies is no different than advertising or a sales pitch. In other words, that it's just part of its overall effort to sell goods or services and therefore subject to regulation under California's "false advertising" law.
If critics chose to whittle down a company to the point where it would stop speaking out, they could do so by filing multiple frivolous suits that contested the truth of the company's public statements. The company would quickly grow tired of the price of making public statements and would be rendered silent. No more news releases. No more public outreach. No more issue ads. Just silence-at least from the company. The critics, on the other hand, could continue their statements because the First Amendment would continuec to protect their right to speak-free of the threat of litigation challenging the accuracy of their assertions.
If the California ruling is left standing, company spokespersons, many of whom are part of the Public Relation Society of America's 20,000 members, would be gagged from making public pronouncements on controversial matters. CEOs will further withdraw from engaging in public statements, joining in debate on public issues of importance to their companies or even engaging in industry discourse. CEOs already are dangerously silent. This ruling would further cement that silence.
Have those on the side of the plaintiff in this case, environmental activist Marc Kasky, thought about the ramifications it would have on the American public? The public would be deprived of access to vital information about the views of companies on aspects of their activities that may affect lives and communities.
Supporters of the California Supreme Court's ruling say they are only interested in the "truth." As they well know, they mean the truth as they interpret it-without challenge. And, unchallenged, these critics of American society will start winning victories in public debates over issues of business conduct or policy, debates where business voices are stilled by threats of litigation.
Speech protections for all
For more than 200 years, the public has ultimately relied on the U.S. Supreme Court to guard the First Amendment from assaults, whether from the "left" or "right." The court has protected free speech by warding off untoward legislation and court rulings. I am hopeful that the U.S. Supreme Court's decision to review the Nike vs. Kasky case will eventually result in the preservation of speech protections for all, including speech by business.
If the U.S. Supreme Court rules against Nike, American business leaders, and those of us who communicate on behalf of those companies, will face a new challenge: It will be to start learning from those countries throughout the world where free speech on public issues has long been suppressed or forbidden.
I challenge our fellow communicators to commit themselves to a spirited and aggressive defense of First Amendment protections for all those in the United States, including the corporations who employ our citizens. At this stage, it's still our right.
Reed Bolton Byrum, managing director of public relations, Trilogy, Austin, Texas, is 2003 chairman-CEO of the Public Relations Society of America.