Preventing Corporate Domination of the Political Process: Nike, Inc. v. Marc Kasky (Amicus Curiae Brief)

Preventing Corporate Domination of the Political Process: Nike, Inc. v. Marc Kasky (Amicus Curiae Brief)

April 23, 2003
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On April 23, 2003, the United States Supreme Court will hear oral argument in Nike v. Kasky. In that case, a California activist, Marc Kasky, brought a claim alleging that athletic apparel maker Nike Inc. deliberately misrepresented facts about working conditions at overseas factories as part of a public relations campaign to counter anti-sweatshop activists. In response, Nike contends that the First Amendment insulates it from liability, even for false factual statements about the conditions in its own overseas factories. Nike contends that its right to engage in speech on public issues will be chilled, i.e. that it will be hesitant to provide future corporate communications, if it must defend lawsuits for unfair business practices based on untrue factual statements about its corporate practices.
 
The issues involved in this case are the same as those at the heart of corporate participation in the political process-namely, to what degree may the government regulate corporate "speech" that does not fit the Supreme Court's definition of "commercial speech"? Although many groups filed amicus briefs in support of Marc Kasky, NVRI submitted the only brief that addressed the heart of the issue: Corporations are not persons and should be subject to more extensive regulation than individuals. Thus, while an individual has a right to lie because personal self-expression is protected speech, there is no reason to make such allowances for corporations, which are creations of the state.
 
NVRI's brief, drafted on behalf of ReclaimDemocracy.org, argues that Kasky's lawsuit does not violate the First Amendment because corporations have no right to lie about their own operations and because they are not entitled to the same constitutional protection as individuals. Corporations wield undue influence in the political process and often try to hide behind the First Amendment in doing so. This case provides an opportunity to reframe the debate and directly presents the question whether these state-created entities should be able to rely on the First Amendment in their distortion of public debate. As such, the case could have far-reaching implications for the field of campaign finance law.