The US Supreme Court has dismissed the Nike case over a technicality, and now the industry is left with feelings of anticlimax and foreboding. Reactions from PR organizations and individuals have ranged from disappointed to rebarbative.
The PRSA, in particular, harshly criticized the justices and accused them of "naivete and ignorance in fathoming the complexities and significance of communications in today's society." Reed Byrum, PRSA's president, says that particularly in the era of the internet, the implications for companies go far beyond California's borders, as consumers can access information from any number of sources.
While one should not necessarily assume the Supreme Court does not grasp the intricacies of digital-age communications, there is no doubting the sincerity of PRSA's concern. It is possible that other activist groups will take advantage of the California ruling and file similar suits. But of greater worry to PR professionals is the potential impact this ongoing ambiguity may have on corporate communications strategies.
Harris Diamond, CEO of Weber Shandwick, who is also an attorney, says that he believes the Supreme Court made a mistake in failing to rule, particularly in an era when the public demand for corporate transparency has never been higher. "Fundamentally, what they have done is potentially created a chilling effect on communications," he says. "They have also potentially shut down many corporations, and given them an excuse not to engage in discussions with NGOs and activist groups."
Companies that are traditionally tight-lipped do not need any more reasons to withdraw from open debate. Nike itself set a standard for openness with its corporate responsibility report, only to cease public distribution of that important document when the California Supreme Court ruled it could be sued for exercising its right to free speech in reaction to activist statements. The biggest loser is the public, which may have only limited access to a free and open debate in the future, and instead will only have access to a select - yet constitutionally protected - point of view.
But the Supreme Court's decision not to render a decision was not the worst-case scenario. A ruling may have gone against Nike, which would have been truly devastating. It is likely that those of us who were raised on the allegories of First Amendment protection from famous Supreme Court decisions never fathomed for a minute that the case would go against Nike.
It would be foolish not to contemplate that possibility now, especially as there is every chance the Court will revisit the Nike decision another day, once the Kasky case reaches a conclusion.
Now it is time for the PR industry to move on and dig in for the long battle ahead. There should be a heightened sense of urgency for US companies to exercise their voices in open debate and, even more importantly, to prove the value of that dialogue to the public. Corporate PR departments and those who counsel them, especially those who have watched the Nike situation from the sidelines so far, need to boldly defend and exercise their right to constitutionally-protected speech. Like most things, one is inclined to take these things for granted until they are gone forever.