- The Washington Times - Tuesday, October 15, 2002

Worldwide boycott-target Nike yesterday asked the U.S. Supreme Court to overturn a California decision that keeps the sporting goods company from denying that it runs Asian sweat shops, leaving accusations unanswered.
Overruling two lower courts that had dismissed the case, the state Supreme Court reinstated a 1997 lawsuit filed by San Francisco environmental activist Marc Kasky that accused the company of violating California's unfair-trade and false-advertising laws by denying that it hires underage workers and pays substandard wages.
Nike argues that its denials are protected speech under the First Amendment.
In its appeal filed yesterday despite the federal holiday, the Beaverton, Ore., company used italics for emphasis to complain that treating Nike denials as advertising unconstitutionally favors those boycotting its products and accusing the company of "slavery."
"Despite the fact that consumers are equally likely to reach conclusions about whether a company's conduct is ethical on the basis of accusations against the company as by its response, the [4-3 California Supreme Court decision] held that only the latter could give rise to a suit for unfair trade practices and false advertising," the 31-page brief said.
Two of the three dissenting state justices urged the U.S. Supreme Court to reverse the outcome on the grounds that "handicapping one side in this important worldwide debate is both ill-considered and unconstitutional."
Nike also issued a press release yesterday saying it will not release its annual "corporate responsibility report," and is turning down press interviews and speech invitations, all to avoid violating the order under appeal.
"Uttering even a word would become far more risky than simply keeping silent, if this ruling stands," said Harvard law professor Laurence H. Tribe, lead lawyer for the high-court appeal.
The company said the May 2 California decision prevents it from even replying in letters to the editor and newspaper op-ed columns "far beyond California's borders" so long as Nike's words may be heard or read in California.
Mr. Tribe's brief said letting the California decision stand would affect many companies that speak out on controversial issues, whether or not they do so in self-defense.
Among such companies is clothing giant United Colors of Benetton, which uses clothing ads and other forums to stage a major offensive against the U.S. death penalty. Benetton was sued on fraud charges by Missouri Attorney General Jay Nixon, who said the company turned a "photo essay" on death-row inmates into an advertisement for sweaters.
The Nike legal team also includes former U.S. Solicitor General Walter Dellinger, Washington lawyers Thomas Goldstein and Amy Howe, and the San Francisco firm that represented Nike in California courts.
Mr. Goldstein said Kenneth W. Starr, former U.S. Circuit Court judge and solicitor, is separately filing a brief on behalf of the U.S. Chamber of Commerce because of the potential impact on the nation's businesses.
The campaign against Nike, a cornerstone of anti-globalization forces, has made the company a butt of jokes and led to its Swoosh trademark being banned from many college sports programs and Canadian professional football.
The decision under appeal would allow monetary awards for statements deemed misleading, even if the company sought to assure they were accurate at the time the statements were made, Nike said.


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