Byline: Frank J. Murray, THE WASHINGTON TIMES
Supreme Court justices will decide this week whether a world-famous company's denial that its products are made in sweatshops constitutes "false advertising" or an exercise of its First Amendment rights.
The case was filed against Nike Inc. by a California resident, Marc Kasky, who sued to have California courts gag the company under the state's Unfair Competition Law, require it to surrender money earned in the state, retract the words and utter no more.
Although Mr. Kasky was not an injured party, as lawsuits typically require, he was able to file the lawsuit in the role of "private attorney general" to force the state to act.
"The First Amendment does not countenance that novel form of private action in light of its severe threat to freedom of speech," U.S. Solicitor General Theodore Olson said in an amicus brief asking to argue for Nike before the high court, a request granted April 7.
A key issue at Wednesday's hearing is whether a private citizen can assume a government role, squelch speech and seek damages when he is not personally injured by the comments. The justices will vote Wednesday afternoon in a closed-door conference, and the opinion announcing their decision is expected to be made public in late June.
The California Supreme Court ruled against Nike and ordered a trial of the case to proceed under laws governing "commercial speech," which the company's appeal said violates the First Amendment by gagging its efforts to convince lawmakers and to defend itself publicly in press releases and paid issue advertisements.
Opponents say Nike, a $9-billion-a-year company, seeks a license to lie so it can sell more shoes.
"Granting companies a right to lie is similar to allowing counterfeit money into circulation; it undermines confidence in the system," said Nathaniel Garrett, who is with the San Francisco branch of the Sierra Club, which filed one of 10 briefs supporting Mr. Kasky.
"These misrepresentations were not part of any political debate but were made by Nike to encourage consumers to buy a pair of its shoes," said San Francisco lawyer Alan M. …