OP-ED: Supreme Court missed its chance to uphold First Amendment rights

By choosing to punt on the Nike First Amendment case, the US Supreme Court has opened up a Pandora's Box of disquieting scenarios. Imagine a congressional hearing with no witnesses from the business community because they're all fearful of the potential liability of testifying. Or imagine the business-news shows without industry reps because they think it isn't worth the legal jeopardy.

By choosing to punt on the Nike First Amendment case, the US Supreme Court has opened up a Pandora's Box of disquieting scenarios. Imagine a congressional hearing with no witnesses from the business community because they're all fearful of the potential liability of testifying. Or imagine the business-news shows without industry reps because they think it isn't worth the legal jeopardy.

Indeed, at the very time when America is asking private organizations to assume greater social responsibility, the US Supreme Court has sent a chilling message: Do so at your own peril. Far-fetched? Not really. Not if you look at the California Supreme Court ruling that the US Supreme Court refused to strike down or uphold earlier this summer. In essence, the US Supreme Court held in its hands the power to preserve a fundamental First Amendment guarantee, and with it, the inalienable right of an organization to make its voice heard in today's cacophonous environment. Instead of protecting that fundamental right, the court chose to put it off till another day. The issues surrounding the Nike case are not complex: Does the Constitution give Nike the right to engage in important matters of public debate? If so, do organizations have the right to hire outside counsel to help them articulate their views? Is the work produced by those professionals thereby protected by constitutional guarantees governing the freedom of expression? Champions of the First Amendment across the ideological spectrum have been hoping all year that the Supreme Court's answer to those questions would be a resounding "yes." Instead, what we heard at the end of the court's session this summer was, "Well, maybe yes, maybe no. Let's let the lawsuit proceed and see how it all shakes out." Now the case has gone back to California to work its way through the judicial system. Regrettably, the court missed the overriding issue in the Nike case, which is an organization's right to publicly voice its opinion. Nike wasn't trying to sell sneakers when it responded to charges of unfair labor practices. To rule that such speech is commercial and, therefore, subject to myriad regulation and financial penalties, imperils America's freedom of expression. And that's not just the parochial view of a member of the public relations profession: a host of scholars, business, and labor advocates and others filed amicus briefs urging the Supreme Court to reverse the original California action. My firm didn't work on the Nike labor-practices issue. Nor is Nike a current client. Nor can I speak to the particular facts that underlie the Nike case. I can, however, suggest why Nike chose to hire outside public affairs counsel. It's for the same reason that companies engage outside legal or auditing or information-technology practitioners. The rules of engagement governing public discourse today have become increasingly complex. Yesterday's genteel debate has been replaced by a 24-7 free-for-all with a news cycle that never ends. Navigating this arcane world has become as challenging for companies as complying with new regulatory standards or the latest revision to the tax code. A company whose core competency is making shoes should not be expected to steer its way through such formidable obstacles without help. US law has long recognized that the relationship between clients and their outside legal counsel merits extraordinary protection. In the view of business advocates, news organizations, and constitutional scholars who have weighed in on the Nike case, the work produced by companies and their outside communications counsel merits the extraordinary protection of the First Amendment. The press releases, op-ed pieces, letters to the editor, et al, that Nike and its consultants developed for the labor-practices issue were not designed to help the company push its product lines. Defending itself against charges of inhuman working conditions in overseas "sweat shops" is the last issue with which a company wants to see its image associated. But once the issue has been aired, Nike has a constitutionally protected right to participate in the discussion. As the US Chamber put it in its amicus brief, "Speech on public-policy matters has always been understood to lie at the heart of the First Amendment, and incorrect statements regarding such matters have always been protected because mistakes are inevitable in such debates." Just as Nike has a right and an obligation to advocate for itself in a court of law, the company also has a right and an obligation to advocate for itself in the court of public opinion. Let's hope that Nike wins if the case is pursued in California. But the US Supreme Court missed an opportunity to close Pandora's Box.
  • Robert Mathias is managing director of Ogilvy Public Relations Worldwide's Washington, DC office.

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