Aw, shucks. I have to admit, I don’t really understand all the flap over this Nike case. From what I’ve been told, it seems sort of straightforward. A fellow is saying Nike’s speech was an “unfair trade practice” because it wasn’t telling the truth.
I’ve got to say, I agree with him. Call me simple, but if a company talks to the public about how it does business, about its products — about the things, in short, that help me decide whether to buy those snazzy shoes — it ought to shoot straight.
In other commercial speech, companies can’t fib. You can’t lie in a TV commercial, and by golly, you shouldn’t be able to lie in a press release about how your company makes products.
And there’s the rub, to many of the folks who disagree with me. This speech by Nike, they say, isn’t commercial speech. It’s free speech. Now I know the Supreme Court has already said that spending money is considered protected speech — which is a heaping pile of cow dung, truth be told — but I keep scratching my head about this and can’t figure it out.
If Nike’s speech in this case isn’t commercial, then what is it? Companies don’t tell people about the grub they ate for dinner, or what their favorite movie is. Now maybe if they were telling me who to vote for, or whether we ought to have the death penalty, I would have to rethink myself.
Some people say that if Nike doesn’t win this case, well then, any crank could shut businesses down by lying about them. Uh-uh, no they couldn’t. Nike could still sue ’em for libel. And other people say that Nike was just weighing in on an important public conversation — global labor. Uh-uh, no they weren’t. In this case, Nike was talking about the way it does business. It was talking about its own factories and its own products.
That’s commercial speech, dad gum it. And people use that speech to decide whether to buy from Nike or Adidas or Reebok. Given that, Nike needs to tell the truth, or pay the fiddler.