Professors To Take Nike's Case to High Court

When the Supreme Court considers how far the protections of free speech extend to commercial claims later this year, a Harvard Law School professor will be on the front lines.

The Supreme Court announced its intention to hear the case against last Friday.

The Supreme Court announced last week that it will hear the case where Tyler Professor of Constitutional Law Laurence H. Tribe will defend Nike, Inc., the world’s largest shoe manufacturer, in a case that concerns one of the most hotly contested legal topics in the last twenty years—commercial speech.

Nike, Inc. is being sued by a San Francisco-based activist, claiming that the company lied about the conditions in its overseas plants. The suit maintains that the public statements Nike had made about the conditions in its overseas plants constituted false advertising.

The California Supreme Court ruled against Nike last May, rejecting the company’s defense that its public statements were protected under free speech.

Tribe, who was approached by Nike after the California ruling, wrote in an e-mail that he regarded the California Supreme Court’s ruling rejecting Nike’s defense as “outrageous.”

A foremost constitutional scholar and a leading Supreme Court advocate, Tribe

came on as an attorney for Nike last summer and lobbied for the Supreme Court to hear the case.

Tribe said he believes that “the California court’s ruling [poses] a grave threat to free and open debate on major public issues.”

Companies have always enjoyed less protection under the First Amendment, and the case could determine the future of commercial speech.

“Speech which is essentially part of a commercial transaction—speech that states the terms on which something is offered for sale and that describes what is being offered—is part and parcel of the economic transaction itself,” Tribe explained.

If the California court ruling stands, companies may be more guarded when making statistics or reports public.

Nike, for example, announced in an October press release that it would not make public its corporate responsibility report, citing the California Supreme Court’s decision as the reason.

Nike has also stated in a press release that several news organizations, including ABC, CNN, CBS, the Washington Post, the New York Times, Co. and The Tribune Corporation have urged the Supreme Court to review the decision, primarily because they feel that the current result will, “inhibit the media’s ability to compare both viewpoints in order to ferret out the truth.”

—Material from the Associated Press was used in the compilation of this article