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Nike Vs. Kasky Case
Chilling Effect
The Scenario
The Future


The Nike case may has left many in the public relations and corporate communications fields wary of what they publish in public. The case's lingering effects may be felt for some time.


The Impact of Nike Vs. Kasky Case on Commercial Speech

The Rapidly Closing Gap On Corporate America And Public Trust

Now that Nike has opted out of the free speech legal battle of the decade, companies will take a more cautious approach to social reporting. Public relations firms have already begun examining how to carefully move through the public fray in fear of Kasky's everywhere.

In an op-ed piece for the Minneapolis Star Tribune, Douglas Spong noted that the day of open forums in the marketplace may be a bygone ideology.

“This was supposed to be a new day,” he wrote (2003), “An age of enlightenment in corporate America. When transparency leads to understanding and understanding leads to trust.”

But now we may be relegated to just the facts. Instead of allowing state attorney generals to prosecute what the public considers unfair, misleading or untrue business practices, any “California surfer dude can take the law into his own hands, act as a pseudo attorney general and file suit against any organization for which he was not personally harmed or wronged" (Spong, 2003).

Although it seems a bit hard to believe in the current environment of corporate fraud, most public relations firms try to live by the mantra of “make your best case, but always tell the truth (Cripps 2002).” But with commercial speech limiting open exchange, and firms risking litigation by seeking to broaden the scope of public debate, then the public may end up hearing only one side. The public relations community believes that lawyers will begin counseling businesses to withdraw from the public forum rather than risk a lawsuit over opinions expressed in an advertisement or op-ed commentary (Cripps 2002).


Distinction in regulations is greatly needed

At a time when corporate communications are under a microscope, there clearly needs to be  a greater distinction between commercial and non-commercial speech. The court seemed to have missed a golden opportunity.

The general public tends to harbor a distrust toward corporate America already. Recent scandals with Enron, KPMG, Arthur Andersen and now Martha Stewart do little to bridge the gap of trust between the two entities. And creating an environment where the transparency into corporate operations is muddied will certainly not help. It is counter-intuitive to confine corporate communications with the threat of a potential lawsuit on every press release.

This is why every major newspaper backed Nike, whether they wanted to or not. They knew they had to. Creating an environment where a corporation is inhibited to speak openly on its activities will deprive the public of access to important news stories and other vital social and political information.






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