Global Policy Forum

By Jeff Seideman

Sad is the professional society that doesn't recognize a gift when it sees it. Yet that is precisely what happened when the PRSA and other industry groups filed an amicus brief with the US Supreme Court to overturn the decision and permit corporations to play loose with their facts. For an industry long burdened by doubts and innuendo about the credibility of its practitioners, this was breathtakingly shortsighted.

Despite the PRSA's claims, Kasky vs. Nike is not about freedom of speech; it's about where the line is drawn between the two well-established categories of speech: noncommercial and commercial. There's a big difference. The Supreme Court has long held that noncommercial speech (a.k.a. political speech), even when it's inaccurate, enjoys First Amendment protections, making it difficult for those claiming damages to receive relief. Advertising and other forms of commercial speech, intended to boost sales and profits, are held to a higher standard, with "truth in advertising" laws requiring advertisers to prove the accuracy of their statements.

There's no dispute about how the Nike case landed on the Supreme Court's doorstep. Nike has long been accused of using sweatshop labor. To counter these criticisms, Nike publicized a study that concluded the charges were untrue. Activist Marc Kasky sued Nike for false advertising, claiming its PR efforts misled the public about its working conditions. Rather than defend its claims, Nike said its statements were about its labor practices, not its products, and were therefore noncommercial speech.

Nike won initially, but the California Supreme Court reversed the decision, ruling Nike's PR campaign was commercial speech because it was made by the company, communicated to current and potential customers, and was designed to make the company more acceptable to the buying public. Nike appealed to the US Supreme Court, which has not yet decided whether to hear the case. If it doesn't take up the matter, the California ruling stands.

The court noted that the speech was commercial even though the subject wasn't specifically about products. It said companies recognize that social issues such as labor conditions contribute to the public's perception of a company and its willingness to buy its products. Can anyone disagree?

Is honesty a burden PR people can't bear? Of course not, particularly since it's what all PRSA members pledge to do when they join the organization. The Code of Ethics' Core Principle reads, "Protecting and advancing the free flow of accurate and truthful information is essential to serving the public interest and contributing to informed decision making in a democratic society."

Assuming the decision is upheld, the practical implications are obvious, easy to live up to, and a benefit to solo practitioners, agencies, and clients. Everyone wins - even the public. It says the factual statements we choose to make in press releases, bylined articles, speeches, and such will have to be truthful. This is exactly the same standard Nike and every other California advertiser already lives up to when they run ads.

And what of the amicus brief? It's a whiny legal tantrum that does more to highlight the weaknesses of the appeal than bolster it. It argues that corporations won't be able to defend themselves against activist charges if they have to vouch for the accuracy of their own statements (I'm not making this up!).

This was addressed by the California Supreme Court. It said corporations should be held to a higher standard than their critics because they can be expected to be more knowledgeable about their own operations, and have far greater resources to conduct research and learn the facts. Who better to be able to know whether Nike is running sweatshops than Nike?

As the nation recoils from scandal and moves toward full disclosure, transparency, and pro-forma reporting reforms, let's hope the Supreme Court doesn't take a step back and sanction misleading statements and half-truths. The PRSA should stop running interference for big-money interests. PR professionals, our clients, and the public need the Nike decision.

Jeff Seideman is president of the Boston Chapter of the PRSA, and has been elected to the board of directors of the national society for 2003, and is president of ImageTech Communications.

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