The Bitter Truth - Commercial Speech and Public Relations   Back to Home Page
Nike Vs. Kasky Case
Chilling Effect
The Future


Some scenarios described below help to provide analogies in aiding the understanding of the Nike case's impact on corporate society.


The Scenarios

The following scenarios help to understand the impacts of commercial speech

Let's suppose your neighbor decided to write a letter to the local newspaper claiming you mistreated a crew of immigrant gardeners who were landscaping you lawn. In his letter, the neighbor called you exploitative, claimed you were running “slave labor” in a “sweatshop” environment. He also claimed you refused to let the workers take breaks or eat lunch. You are shocked and devastated and anxious to set the record straight to the community who now view you as evil. But before you get the chance, a local court issues an order stating you could be potentially sued if you dared respond publicly to the charges. Outrageous muzzling of your free speech? You would think so. Yet this is the essence of the California Supreme Court's ruling. At least in the eyes of the public relations community (Cripps, 2002).

Lawyers may now begin counseling businesses to withdraw from the public forum rather than risk a lawsuit over a viewpoint expressed in an advertisement or op-ed commentary (Cripps, 2002). This is a potentially fearful option not just for the business community, but for the consumers as well. It may basically shut businesses out of the public debate of issues that directly affect them.

What may be missed in the largely partisan debate is that, bottom line, businesses are not allowed to fraudulently advertise their products or services. They must reasonably obey government regulations on safety, workplace environments, labeling requirements, etc. Nike may very well have been running a den of slave labor and exploiting overseas workers who need every penny to feed their families. But shouldn't that be a separate issue?

In other words, if you did actually mistreat you landscaping crew, even though you claimed you didn't, you still face prosecution and punishment. The difference  is, you get to at least have a say in whether you did it or not.

Public debate is just that. It leads to answers rather than having them swept under the rug or avoiding altogether in fear of retribution. As Thomas Jefferson once said, “Difference of opinion leads to enquiry, and enquiry to truth.”

Consider another scenario. A New York-based company has led the industry in efforts to create environment-friendly practices. The CEO was just recently awarded the “Eco-Friendly CEO of the Year” by an East coast environmental protection group. Will the company issue a press release and give the award prominent headlines in its annual Environmental Report? Or will the company's lawyers and public relations team advise the CEO to grant no interviews, make no statements and say nothing at the awards ceremony? (Jenkins, 2003).

The honored CEO may very well take the safe route, especially considering the now widening reach of communications - where new published on the web easily finds its way into the state of California, whose residents may have a completely different idea of what is deserving of accolades in environmental efforts than, say, New Yorkers.

After the Nike ruling, many companies may opt for the “no comment” option. It is very well the easier option when considering the potential lawsuits in California for false advertising.

And how about this scenario: An activist group publishes full-page ads to accuse a company of exploitative labor practices in India. The company hires investigators to determine the validity of the charges and they find them to be untrue. Even an independent, third-party auditor finds them untrue. The Indian government states that the company is within compliance of national law. Does the company refute the charges publicly? Or does it rely on the safe “no comment” approach.

Again, companies may be advised its not worth it. If their claims are at all construed as “commercial speech,” they may be faced with stricter regulations and backlash.


Public relations and corporate communications re-think their strategies

Even if the company is successful in court, it is still a bitter victory. For the public display of litigation will be more harmful to the company's reputation than if they stayed completely out of the fray from the beginning.

Public Relations professionals, as well as corporate communications professionals, will consistently believe that the customer has a right to their message, and that it is immoral to deny them of that opportunity. To do so is to diminish the First Amendment. It is impossible to express ideas if the speaker is limited or denied access to a targeted listener. (Posch, 2001).

The rules remain in place to keep such speech truthful. But if it is chilled from the public, then what potential secrets will be kept?