Nike Denied First Amendment Defense 371
Several people have written in about an interesting decision handed down by the California Supreme Court. Nike, which has been repeatedly criticized for sweatshop practices in its contractors' factories, has made a variety of statements to the press contradicting these allegations (although in general, third-party examinations find them to be substantiated). A lawsuit was filed, charging the company with deceptive advertising under California law, and Nike was accused of trying to greenwash its image. Nike claimed that the First Amendment prevented it from being sued for these statements. The first courts to look at the case agreed with Nike; the California Supreme Court agreed with the plaintiffs and allowed the suit to proceed. (See also Nike's press release.) There are all sorts of interesting issues raised concerning corporate and commercial speech, the protection it has/ought to have, etc. There's a law.com article that goes a little more into the legal issues.
Fraud is Illegal (Score:5, Informative)
Re:Fraud is Illegal (Score:2)
Freedom of speech is a good thing, for both indiduals and corporations, but they must be held accountable for what they say.
Nike SHOULD have the same right... (Score:2)
The court's ruling did not decide whether Nike's ads were false or misleading, instead leaving that for the trial court
This means the the court is NOT determining that Nike's statements constitute fraud, but shutting them up from making unpopular statements. I believe that Nike uses sweatshops, but I also think that they should be allowed to say that they don't, because I haven't gone to Indonesia or Guatemala and taken photographs of huge sweatshops that say 'Nike' on them. When someone has proof that they do use sweatshops (which many groups say that they do), and a court agrees with their proof, then Nike will have to say that they were big, fat, greedy liars (and then the American public will probably go on buying their products anyway, unfortunately).
Re:Nike SHOULD have the same right... (Score:4, Insightful)
Nike was trying to preemptively strike down the suit before the substantial issues in the case could be heard.
They're free to continue running the ads.
Let me guess - YANAL, right?
Re:Nike SHOULD have the same right... (Score:4, Insightful)
If Nike had won this case, it would meant that corporations would be able to lie through their teeth with impunity.
The court made a distinction:
This is not an onerous or unreasonable demand: Nike has a unique ability to know definitively what their own policy and aproaches are, and -- for the most part -- the public generally has to accept what they say as the truth because it's usually rather difficult to do the work it takes to independently investigate the truth of such statements.If what a company is doing is nasty, underhanded and disgusting, they may also be uniquely motivated to lie about what they're doing.
This also doesn't specially bind the company in the debate:
If I knowingly lie about what the company is doing, then I'm subject to a Libel suit (even if I'm not lieing, I could be subject to a SLAPP suit). Similarly, if the company knowingly lies about what they're doing, then they should be subject to a libel suit (or something equivalent to it). This rulling essentially says that they are.
Re:Fraud is Illegal (Score:3, Insightful)
I mean, come on... I'm all for free speech and whatnot, but making blatantly false statements in a deliberate attempt to deceive the public does NOT fall under first amendment protection.
Not Fraud! Happy Thoughts! (Score:4, Funny)
Quote: Just like many low cost 'no-brand' shoes, Bliss Shoes are made by brown people in strange dirty countries. But unlike low cost shoes, ours go through a de-guilting process during the label affixing and packing stages.
SEC filings (Score:5, Funny)
I don't know whether to admire or fear... (Score:2, Interesting)
In her separate, 30-page dissent, Justice Brown -- making references to Harry Potter, Lord of the Rings, and King Arthur's Court -- said Nike's statements should have been protected because the commercial and non-commercial aspects were "inextricably intertwined."
I'm so very scared, I mean Harry Potter????
Beginning of the end? (Score:5, Interesting)
(Historical Information [iiipublishing.com])
Re:Beginning of the end? (Score:2, Interesting)
Heralding the end? Maybe so.
Nike says it doesn't have sweatshops in Asia. Microsoft says Windows can't be feasibly modularized. They say these things under oath to speak the truth. And the list goes on...
Marketroids and corporate attack dogs don't seem to feel bound by law. Are they really so unaccountable?
Who is accountable? Management? Owners? Pondering corporate personhood, it dawns on me that it presents a possible legal contradiction. If a corporation is a person, and that person has owners, is that person a slave? Slavery was made illegal by a constitutional amendment.
The idea of corporate personhood as an extension of the idea of human personhood is too much of a stretch. Let's discard the idea entirely and codify a limited set of rights and responsibilities for these abstract entities. For-profit corporations exist for commerce and should be restricted to that role. If their owners and managers want to play in the political arena, they should do it personally. I'm talking about campaign finance reform. Oh, and maybe MSFT should try paying some dividends to shareholders. (BTW, I do not own shares of MSFT.)
</rant>
Can you say "double standard"? (Score:5, Insightful)
But just try to exercise your constitutional right of free speech by creating a website critical of Nike (or most other megacorporations, these days), and their lawyers will try and in most cases succeed at crushing you, leaving nothing but a smoking crater in their wake.
I guess in addition to yelling "Fire!" in a theater full of people, it's also wrong to yell "Sweatshop!" in a factory in Thailand full of orphans sewing the "Swoosh" on shitty sneakers at midnight.
On the plus side, at least I don't have to change my spending habits-- since I prefer plain, black sneakers and Nike only sells shoes that, if they were cars, would have been driven by pimps in the 70's.
~Philly
Re:Can you say "double standard"? (Score:4, Informative)
which are also made in sweatshops in china now.
more Evil than MS? (Score:4, Interesting)
Unfortunately, I don't believe that it's up to the court to decide. I think, consumers, should boycott Nike products.
Re:more Evil than MS? (Score:2)
So, are you agreeing with Nike here that deceptive advertising shouldn't be illegal due to First Amendment concerns?
Note that the courts are not holding them accountable for the sweatshops, just their deceptive advertising surrounding same.
Re:more Evil than MS? (Score:5, Informative)
They've been trying for years to claim that there is no evidence that smoking causes diseases such as lung cancer, bringing in their own paid "scientists" into "debates" in an attempt to legitimize their "viewpoint". Now I suppose we're going to start hearing that they should be allowed to make such claims as a free speech issue.
I remember when internal documents of a tobacco company were brought up in court stating that their primary market to advertise to to get new recruits was the "13 to 25" age group. Their defence? "Its a typo". Riiight. (Studies have shown that if you haven't started smoking by age 20, you're pretty much never going to start smoking).
Philip Morris ("Phillip"?) recently published a report on the "indirect positive economic effects of early death". Thats sickening.
Re:more Evil than MS? (Score:2)
That was really stupid of them. They should have said something like "Yes, our product is unhealthy; so is candy, fast food, and sitting in front of the TV all day. But this is America, and people have the right to make unhealthy choices". Blatantly lying to the public rarely works out in the long term.
Philip Morris ("Phillip"?) recently published a report on the "indirect positive economic effects of early death". Thats sickening.
Maybe, but it's also true. A RAND studay [ncpa.org] has shown that by dying earlier and collecting less Social Security and Medicare benefits, smokers pay substantially more in cigarette taxes than they cost the public in increased medical care. This is probably why governments at all levels would rather raise taxes on cigarettes than ban them, even when they are more than willing to ban other drugs that are far less dangerous.
It's Business (Score:2)
If I was in the tobacco business (which I'm not) I wouldn't give a rip about who *chooses* to use my product knowing full well that it is deadly. I'm not in the business to protect the public (that's what the government and organizations like Thomas T. Melvin [be-free.org] and The Truth [thetruth.com] are for). Cigarettes are not illegal, so if I can get you hooked at a young age I have a customer that will give me money on a weekly basis for the rest of his/her life. Makes sense to me.
If I spent my life building a hugely successful business, I think I deserve to be rewarded for my hard work. If there's one thing I learned from college, it's that hard work isn't enough. You have to step on people and back stab just to stay afloat.
You don't like that? Don't buy my product.
How many people do you know that are not aware that cigarettes are unhealthy? Not only that, but Philip Moris is now running anti-smoking ads on TV. What more could you ask from them? Since when has business been about being honest anyway?
If I spent my whole life crying and worrying about other people instead of myself, I would end up broke and probably insane.
This Flamebait was brought to you by the letters F and U, and the $ symbol.
Re:It's Business (Score:3, Interesting)
If I spent my life building a hugely successful business, I think I deserve to be rewarded for my hard work. If there's one thing I learned from college, it's that hard work isn't enough. You have to step on people and back stab just to stay afloat.
You have unknowingly touched on where I have a problem with tobacco from a capitalistic standpoint. Capitalism is based upon the consumer's ability to make informed decisions about where to spend their money. This in turn is based upon the principle that free will reigns supreme in the market: consumers and producers are free to decide how to best spend their money. Now, when addictive chemicals are introduced into the equation the model is no longer so pure, and the capitalist system is affected thereby. In the case of tobacco (and other substances with addictive chemicals as a key constituent) you are, to my mind, cheating insofar as capitalism is concerned.
Now, I understand that a certain degree of addiction can be said to take place when almost any substance is consumed. But I think you would agree that nicotine is in a class above other similar chemicals, due to its well known characteristic of being extrordinarily addictive. As such, the continued sale of tobacco causes me a degree of concern as a small-l libertarian. I believe in free market principles, but those principles must occasionally be protected from those who abuse the system. I am increasingly of the opinion that the tobacco companies, instead of merely being another successful player in the free market, are instead the incorporated version of the Cali cartel.
I understand that it is currently fasionable to believe that free will reigns supreme, and that in the case of smoking the initial decision to "spark up" is untainted by any addiction. But please keep in mind two things: First, that the initial decision is usually made in youth, when wisdom is not generally a core part of our character. Second, that the (wise) decision to cease smoking is made more difficult by the addictive nature of nicotine, and that this in and of itself is out of bounds for a successful and fair free market.
Re:more Evil than MS? (Score:2)
I speak specifically to the issue of "your average 13 year old". I certainly agree that by the age of 13 the information regarding the dangers of smoking have more than likely been clearly presented, and that a 13 year old has the capacity for decision making and understanding of consequences. This does not mean that we can fully expect them to make the correct decision about smoking, and that it's their "stupidity" that makes them choose wrong. The reason is that "your average 13 year old" is not necessarily going to use the threat of a nasty death 40 years in the future as the primary decision factor over peer pressure, rebeliousness, and other factors that are much more real to a teenager than lung cancer. Targetted advertising only makes this worse, and thus, no, it isn't "their own stupidity".
"Free speech" and corporation slaves (Score:3, Insightful)
Damn straight. I do not have a right to make deceptive/false claims like this, neither should a company.
My own thought on having US based corporations manufacture goods outside the country? The United Streets should view those factories as being within the US, and charge applicable fines to corporations that abuse their employees (by United States standards). If the company doesn't like it, fine, they can move their business to the other country. Of course, then they should pay stiff import fees, as in charge enough money to not make it worth it for the company. Problems with this?
Well sure there are some to consider...how do you decide what "minimum wage" is in another country? $5 an hour in some third world country would make you rich enough to create a military rivalling your government's, probably. So that's something I couldn't answer. But the law guys should think about this....
Re:"Free speech" and corporation slaves (Score:2, Insightful)
The crux of your argument if that if a company does something wrong outside the country while doing business, then they should be able to be punished inside their home country for those practices.
Maybe Japan should be allowed to have a male-dominated factory in the US because that is how Japanese factories are run. If a US division of Honda promotes a woman to an executive position, then the promoter could be laid off for violating corporate policy. Maybe a Saudi company could ban women altogether from the workplace. Discrimination? Nope, just following the policy of the home country.
Legislating US behavior outside the country will not solve the problem. While in your case it might help this sweatshop problem, but it introduces a dangerous precident of helping to reduce a nation soverignty(sp?)when the host country's policy is different than you might like.
Nike's Advertising Budget (Score:2, Interesting)
http://www.nikewages.org/issuehistory.html
Am I the only person who thinks this is normal (Score:5, Informative)
In Britain, at least, the Advertising Standards Authority exists to ensure, among other things, that advertisments are truthful: surely this is a basic requirement - otherwise we end up with "Smoke Ciggies - They're Good For You". I fail to see how the First Amendment should guarantee a corporation's right to lie to the public in its advertising - this seems to be even more of a perversion of First Amendment rights than most.
So, is there something I'm missing, or was Nike's case really "We can say what we like with no respect to truth because the First guarantees our right to lie to Joe Public"? If so, then they should have been slapped down, and hard.
Re:Am I the only person who thinks this is normal (Score:2)
Take the auto industry for example, most adds are exagerated to a point that you would expect the car to perfom in any road condition but when you get behind the wheel in extrem wheather you find yourself scared for your life. These real life conditions are minor compared to the conditions that the adds claim.
No, they just act on complaints (Score:3, Informative)
After the "proof", the agency simply decides whether the "proof" was compelling. If it was truly a proof, the advert is let to stand. If it is decided that the advert is wrong, it is removed, and there may be a punishment for breaking the standards....
The ASA are government-funded, but have removed party-political posters from in-power governments before now. They're maybe not perfect, but they're not the shady "them", as government bodies are typically depicted.
Simon
Re:No, they just act on complaints (Score:2)
Precedent to go after Microsoft FUD (Score:2, Interesting)
So, does this mean that we can now sue Microsoft for all the FUD they plaster all over their website about what's legal and what's not?
I really hope that this one gets appealed all the way to the U.S. Supreme Court so that this gets sets as a nationwide ruling.
Of course, it would be nice if the SEC would make rulings ahead of time to prevent crap like this and Enron and so on. I think any publicly-traded company should be required to be honest. Lying to the public that trades your company is not a freedom of speech. It's failure to disclose.
That's RICH... (Score:3, Insightful)
What I find endless amusement in reading /. is statements like the above.
Lawyers have done an amazing job of compartmentalizing the applicability of ANY decision. That's why you need lawyers to decipher the law!
For example, a case hits the California district court, where a case is one that sets a precedent.
So, there you are, in Oregon, 10 miles from the California border. Think that District court decision applies?
NOT!
Take a look at the case. The only thing decided here is that Nike cannot use "Freedom of speech" to defend their case.
Nowhere does this decision say anything about incurring liability, thus this sets no precedent for a suit.
Talk to a lawyer some time. Spend a few hours at it. If you can get a lawyer friend or something to tell you all about it, you'll realize that they are just as knowledge about "Bills of attainder" and "writs of something-or-rather" as an experienced programmer must be in APIs, algorithms, and protocols.
Just as there is a S--tload of sloppy, crappy software developed by wannabes in their spare time, there is a similar sized load of legal advice by wannabe paralegals.
It'd be nice if this DID set a precendent in that regard. The idea of corporations having "constitutional rights" I find to be a sick perversion of society.
And, both Nike and Walmart certainly have my distaste.
Re:That's RICH... (Score:2)
So, there you are, in Oregon, 10 miles from the California border. Think that District court decision applies?
Yes, of course it does. Every court decision is a precedent, and a legal ruling by a District court somewhere in Jersey needs to be taken into account by all other courts ruling on similar issues all across the country, up to and including the Supreme Court.
Judges don't get to go around ignoring other judges just because they're in a different judicial district. Law is supposed to be consistent, equally and evenly applied. Now, clearly if one state has a law that another state doesn't, that's one thing, but this is a ruling about the protection afforded by the First Amendment, so yes, this district court in California's ruling is certainly relevant in courts across the land.
Out of touch judges (Score:5, Insightful)
Why do corps have freedom of speech at all? (Score:5, Interesting)
Well, good. That's an "inbalance" I can live with. Remember, the topic here is whether or not people are being subjected to sweatshop conditions at Nike factories (or contracted facilities) overseas. Whether you think this is wrong or "it's better than whatever else they'd be doing," I think you're at least entitled to hear the truth about how frequent and how severe it is. Making a corporation responsible to tell the truth in that situation seems like a great idea.
To me, the whole problem starts with "Santa Clara vs. Southern Pacific Railroad," in which the (US) Supreme Court ruled that a corporation is a natural person for the purposes of constitutional rights protections. Which I think is a crock. A corporation shouldn't be entitled to free speech under Article I because it's not a person. It's a legal abstraction.
That said, I don't necessarily think that there should be severe limits on "corporate speech," but to protect them with the same constitutional power as a person creating an artwork or making a politcal protest... please. All corporate speech should be considered commercial speech and should be required, if nothing else, to be true.
Re:Why do corps have freedom of speech at all? (Score:2)
Re:Why do corps have freedom of speech at all? (Score:4, Interesting)
Um, no, it has nothing to do with "the Left".
As it stands, a *corporation* does in fact have the legal rights of a human being. Read the message you're replying to. Meanwhile, individuals in the corporation are shielded from personal responsibility for the corporation's actions. If a corporation where indeed legally treated as a collection of individuals, the situation would be totally different -- and probably much better. But it's not, thanks to, I'm going to have to say, "the Right".
Re:Why do corps have freedom of speech at all? (Score:2)
Actually, you are wrong.. Business Law 101 would tell you that corporations have some of the rights that individuals enjoy, but not all of them. Try a quick google search before you criticize.
Re:Why do corps have freedom of speech at all? (Score:2)
No, there is no shield for personal responsibility. For instance, in the recent Enron case, "Arthur Anderson" the business was charged with breaking the law as well as the head of their Houston office. There is not now nor has there ever been any shield for criminal or civil liability for a corporation's employees or officers.
It is true that the shareholders' liability is limited to the amount they invest in the corporation, but this has nothing to do with the concept of corporate personhood.
Re:Why do corps have freedom of speech at all? (Score:2)
They can be, its called peircing the corporate veil. If you don't follow certain guidelines in running a corporation, the law can and will come after individuals.
Re:Why do corps have freedom of speech at all? (Score:2)
Piercing the corporate veil means going after the shareholders' assets. It is not necessary to pierce the veil to sue or indict an officer of a corporation. There is no shield from liability for an officer's actions.
Re:Why do corps have freedom of speech at all? (Score:2)
Re:Why do corps have freedom of speech at all? (Score:3, Insightful)
Not at all. That's the thing - you don't become part of the corporation at all, ever, even if you devote your entire life to it. I'm not arguing against the right of individual people to say anything at all that they wish, but instead the ability of using a "corporate veil" to say things that aren't legally tied to any one person. Like company policy statements, for example.
Isn't a corporation just a collection of individuals, no matter how much the Left tries to depersonalize things?
I think that's a bit disingenuous. For one thing, no, a corporation isn't just a collection of individuals, it's a legal abstraction designed to protect the people behind it from liability for actions taken on behalf of the corporation. In general, this is a good thing; I don't think every sigle employee of Enron should be able to be sued by its creditors, for example.
But the end result is that the corporation itself has virtually no liability: it is a profit-driven entity, with no duties beyond making money for the shareholders. It seems like this is the depersonalizing part: a legal entity motivated only by profit can create all kinds of pollution, squalid working conditions, unsafe products, you name it, and they have way more rights to do all this than any of us have to resist it.
Re:Why do corps have freedom of speech at all? (Score:2)
Obviously not the employees- just the *owners*. Stockholders should be liable relative to their stake in the company.
That way, it becomes the stockholder's *responsibility* to know what's going on, rather than simply their right. It also means that boards would be more likely to hire trustworthy people.
Re:Why do corps have freedom of speech at all? (Score:2)
That way, it becomes the stockholder's *responsibility* to know what's going on, rather than simply their right. It also means that boards would be more likely to hire trustworthy people.
No thats not how corporation law works. In the end, the board of directors is the legally responsible body for the corporation since they have access to all records of the company and they can hire and fire the employees.. stockholders are exempted from liability for a couple reasons, because they don't hire the employees, because they don't have a say in the day to day operations in the company, and because if stockholders were liable, no one would even invest in companies..
Re:Why do corps have freedom of speech at all? (Score:2)
Isn't a corporation just a collection of individuals, no matter how much the Left tries to depersonalize things?
No, that is exactly what the Corp is not. Otherwise, the employees would be legally liable for Nike's actions. There are a lot of rights that a corp doesn't have, such as the vote - they are not an individual, and should not be considered a person.
Re:Why do corps have freedom of speech at all? (Score:2)
Or perhaps you believe that the people who work for a corporation should be individually liable for the debts of the corporation? Or that employees should be held responsible for any criminal actions of the corporation (a notion that could have far-reaching consequences of Nike?)
The fact that a corporation is distinct from the people who work for it isn't some liberal propagana trick. It's the whole reason they exist in the first place! You should try addressing your own ignorance before decrying the beliefs of "the Left".
Re:Why do corps have freedom of speech at all? (Score:2)
Re:Why do corps have freedom of speech at all? (Score:2)
"Of course not" you'll say. At which point the whole argument that corporations are "just a collection of people" breaks down, because now some people are more and some people are less responsible for the actions of a corporation.
Re:Why do corps have freedom of speech at all? (Score:2)
If you don't know that, maybe you shouldn't defend corporations so quickly? The whole CONCEPT is that if the business does criminal acts, it is the corporation that takes the rap and the people running it are not held personally responsible.
Another very fundamental concept (perhaps even more fundamental) is that the corporation also shields the people running it from financial liability. If the corporation goes 60 billion dollars in debt, you can't go after the people who made the decisions for the money. They can keep on doing it without ever having to be confronted with a personal side to the indebtedness of their corporation. This helps them remain undistracted by responsibility while they do all the things we've seen corporations do, like rip off all their employees and implode.
I don't mean to be overly hostile, but wake up.
Re:Why do corps have freedom of speech at all? (Score:2)
Its because you don't understand how it works legally.. its not something you can be or not be with someone on, its the law.
If someone does an illegal act while working for a company, there are circumstances in which that person can be held personally accountable, but for the most part, the corporation as a whole is held accountable.
If for instance, the corporation builds a dam which later fails, the corporation is the person you sue when your house gets washed away, not the CEO or the bridge builder, assuming each acted as a ordinarily prudent person and it wasn't a forseeable problem and such.
Re:Why do corps have freedom of speech at all? (Score:2)
Re:Why do corps have freedom of speech at all? (Score:2)
Uh, no. I can work for any corporation which may be held to different standards, yet still go out in the street and demonstrate my free speech all I want. I corporation is a bit of legal fiction that only exists in our minds and in legal books...it is not an entity that deserves some inalienable rights granted by God.
"Isn't a corporation just a collection of individuals, no matter how much the Left tries to depersonalize things?"
A corporation is also a contract with the public and the government, involving a charter (which can be revoked) and several special privelages and responsibilities.
Re:Why do corps have freedom of speech at all? (Score:2)
No. A corporation is a legal fiction considered to be an entity of its own, with its own set of rights and responsibilities, as long as the people working for the corporation don't do anything wrong, they still have all the rights and responsibilities of a normal person. It's not really a hard concept, just high misunderstood because most people don't take those introductory law classes that most highschools and colleges offer.
Re:Why do corps have freedom of speech at all? (Score:2)
Other corporate rights (Score:5, Insightful)
Then I suppose you think corporations (including non-profit corporations, of course) should be denied:
It's easy to bash corporations (and good for a few karma points), but try to imagine a free society where the above situations are possible. Imagine what would happen not just to our economy, but to our society -- many charities and universities are non-profit corporations -- if these rights didn't exist.
Remember, the Bill of Rights doesn't "give" rights to anyone -- it only prevents the government from taking them away.
Cheers,
IT
Re:Other corporate rights (Score:2, Interesting)
Try to imagine a free society without corporations at all, would be one solution. Granted that's a drastic step from where we are now, but it's part of the reason the US fought for independence in the first place -- the boston tea party was a revolutionary response against monopolistic practices by the UK-based East India Tea Company.
First of all, in early America, a corporation wasn't a thing recognized by the federal government at all - they were state-based. And no, they didn't have any rights. They were legal entities to pool the financial interests of a several people for a specific transaction, or series of transactions. If someone acted illegally on behalf of the corporation, poof! It was dissolved.
Basically, yeah, it sounds like an okay system to me - corporations have their charter (right to exist) yanked if they act illegally. I understand your due process concerns, and yes, the alleged illegal behavior should be proven before a charter is revoked.
Re:Other corporate rights (Score:2)
Re:Other corporate rights (Score:4, Insightful)
Corporations have religions?
"the right to be free from unreasonable search and seizure -- Uncle Sam can just walk into your small business without a warrant and take your stuff. (4th amendment)"
Correct...they don't have the *RIGHT* to be free from unreasonable search and seizure because they are not *PERSONS*. Now sure, they can have a reasonable *expectation* to be free from unreasonable search and seizure, but since corporations are (supposedly) beholden to the public who gave them their charter, their privelages, and their responsibilities - then YES the public should be able to execute inquiries into a corporations behavior at any time. Of course this DOESN'T happen all the time because just because we can do it, doesn't mean we have to be jerks and do it. Most of the time there is no reason to.
"the right to due process (5th) and speedy and public jury trials for criminal offenses (6th)"
Yeah, that sucks doesn't it? Poor poor legal abstraction, let me weep for thee. On the other hand, large corporations have the money to tie the courts up forever, often to the point that the public just gives up.
"imagine a free society where the above situations are possible."
Gladly.
"many charities and universities are non-profit corporations"
Uh, I'd be *highly* suspect of a "non-profit charity" whatever the hell that is. And for what it is worth, YES, I think universities should be open to public inspection and critique.
Other corporate rights (Score:2)
by IntelliTubbie on 01:01 PM May 4th, 2002 (#3462838)
(User #29947 Info)
To me, the whole problem starts with "Santa Clara vs. Southern Pacific Railroad," in which the (US) Supreme Court ruled that a corporation is a natural person for the purposes of constitutional rights protections. Which I think is a crock. A corporation shouldn't be entitled to free speech under Article I because it's not a person. It's a legal abstraction.
Then I suppose you think corporations (including non-profit corporations, of course) should be denied:
the right to be free of religious persecution -- the government can freely discriminate against Jewish, or Muslim, or atheist corporations (1st amendment).
the right to be free from unreasonable search and seizure -- Uncle Sam can just walk into your small business without a warrant and take your stuff. (4th amendment)
the right to due process (5th) and speedy and public jury trials for criminal offenses (6th) -- the government can shut your business down without reason and without telling you what you've been charged with, and give you a secret trial or delay the trial indefinitely.
It's easy to bash corporations (and good for a few karma points), but try to imagine a free society where the above situations are possible. Imagine what would happen not just to our economy, but to our society -- many charities and universities are non-profit corporations -- if these rights didn't exist.
"Remember, the Bill of Rights doesn't "give" rights to anyone -- it only prevents the government from taking them away."
Fine, then corporations can simply give up the benefits of being a corporation (we certainly wouldn't want to impose by *giving them* any special privelages). Corporations can just dis-incorporate, give up any special privelages that were granted to them, and revel in their freedom!
Re:Other corporate rights (Score:4, Insightful)
Sole proprietorships, partnerships, are all liable. It is only the incorporated company that gets to disclaim personal responsibility.
I have NO problem with the IRS walking into a corporation's premises and taking stuff, if they feel a need to- without any sort of legal process.
Because the corporation itself is an end-run around legal process, allowing people to conduct business without any trace of responsibility.
Now, if you have Uncle Sam walking into a sole proprietorship and taking stuff, when the sole proprietorship means a person IS LIABLE for the acts of the business and NOT exempt from this, well, then I have a problem, and I see your point.
Since a corporation gets to completely shrug off legal liability why should they get the privacy, property, speech rights of entities (people) which ARE liable?
Re:Other corporate rights (Score:2)
Then I suppose you think corporations (including non-profit corporations, of course) should be denied:
the right to be free of religious persecution -- the government can freely discriminate against Jewish, or Muslim, or atheist corporations (1st amendment).
the right to be free from unreasonable search and seizure -- Uncle Sam can just walk into your small business without a warrant and take your stuff. (4th amendment)
the right to due process (5th) and speedy and public jury trials for criminal offenses (6th) -- the government can shut your business down without reason and without telling you what you've been charged with, and give you a secret trial or delay the trial indefinitely.
If they're not people, they can't.... (Score:4, Insightful)
People have religions. Corporations, not being people, can't have religions. You might as well talk about corporations wearing blue jeans. The people who own corporations, on the other hand, as well as the employees of those people, may have religions, and discriminating on the basis of the religions of any of those people would remain illegal.
the right to be free from unreasonable search and seizure
The people who own the corporations have those rights, so the corporations don't need psuedo-human status to gain those rights. My car doesn't need its own status as a "people" to be free from search and seizure.
the right to due process (5th) and speedy and public jury trials for criminal offenses (6th)
People have due process. The officers of the corporation are people, and are responsible for the actions of the corporation that they own and control (just as I'm responsible for the actions of the car that I drive). I mean, it might be nice if my car (not me) got sued after an accident, but it doesn't make any sense, and it doesn't make any sense in the case of corporations either.
Giving corporations the legal status of property makes far more sense than calling them "people", and doesn't take any rights away from any real person anywhere.
Re:Other corporate rights (Score:3, Insightful)
PR vs Advertising -- a false distinction? (Score:2)
Re:PR vs Advertising -- a false distinction? (Score:2)
ACLU On Nike's Side? (Score:4, Insightful)
I don't always agree with the ACLU's choice of clients or their politics, but I understand their absolute need to be there to defend people and personages that the general public wouldn't defend, but since WHEN do corporations have the right to free speech, especially deceptive speech?
The ACLU is absolutely, unflinchingly wrong in this case.
Re:ACLU On Nike's Side? (Score:2)
Good quote (Score:5, Insightful)
Exactly. When Nike said those things, they weren't directly describing a product they were selling. It was more of a debate.
One could argue that such things may be black and white, so no debate is needed. But such issues never are. Sometimes issues can't be reduced to a simple one sentance soundbite. We've all seen news articles where a quote is taken out of context, allowing it mean sometime more sinister than the situation actually is, even though the brief statement may be literally true. In these cases, the accused should be able to elaborate on some of the details.
However, if this ruling stands, special interest groups will be able to express any complaint they wish, and corporations will be more likely to just say "we can't confirm or deny that accusation" no matter how truthful or baseless the accusation is. This will make corporate secrecy even worse.
Re:Good quote (Score:2)
The claim is that Nike is being willfully deceptive about their practices. Describing how you come to manufacture a product is describing a product, in many cases.
For example, I may want to know that only union labor is used in the manufacture of a particular item. Or, I may wish to know that no animals were harmed in the manufacture of a product. A company may have the right not to tell me about their practices, otherwise they could be attacked with endless enquiries on every facet of operation, but they don't have the right to outright lie about them.
If this is just a debate, with differing opinions, then the court should not find Nike guilty of deceptive advertising (note the CA Supreme Court is only allowing the suit to go forward). If, however, they willfully made deceptive statements. That's something else.
Nike: The Great Defenders of the First Amendment? (Score:5, Informative)
Nike respects the first amendment like Enron respects their employees.
pherris
Check out:
http://www.shey.net/niked.html
http://www.
http://www.villagevoice.com
Re:Nike: The Great Defenders of the First Amendmen (Score:2)
/. should start including links to the relevent portions of the constitutional text whenever it posts one of these stories. Sheesh.
Re:Nike: The Great Defenders of the First Amendmen (Score:2)
Last I checked, Nike is not a gov't agent, so they don't have to respect or even care about your first admendment.. the first admendment protects people from government censorship, not from everyone they want.
Free speech, like free software, isn't "free" (Score:3, Insightful)
"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."
(Blackstone's Commentaries on the Laws of England)
Under the California ruling, Nike has lost neither its right to free speech nor its responsibility for the consequences. This is as it should be.
here's the deal (Score:2, Informative)
Nike claims that it is doing sweatshop workers a service because the workers get paid a higher salary than they would get otherwise if they were working in farming. For the most part this is true. The $100/month that Indonesian workers get paid is more than the median national income. But they are producing thousands of pairs of shoes that each sell for about $100...
Re:here's the deal (Score:4, Insightful)
I can't speak directly on the specifics of Nike's facilities and those of its contractors. In general, however, these statistics can be extremely misleading. Yes, the sweatshops tend to pay much more in cash than their workers might make on the farm or in their old villages. But their workers may have to move to a larger (more expensive) town to work there, or they might be required to buy uniforms or tools at prices set by the company, that sort of thing.
More importantly, it's sometimes the case--again speaking very vaguely because I don't know much about this particular company--that the big business interests in poorer countries use illegal (or legal but unethical) means to remove farmers and craftspeople from their farms and villages, where they had lived in a barter or subsistence economy with very little cash.
For example, a young woman in Country X might be earning in the factory ten times the cash she used to make selling eggs from her family's half-dozen chickens; but back home she had nearly free rent, was able to make her own clothes, and had Grandmother nearby to watch the kids. She might have been poor by our standards on the farm but would have had a reasonably stable life, some control, a family network, and the ability to fall back on neighbors and friends when things went wrong.
In the factory, her schedule is dictated, the bosses don't know her or care to, even talking to your fellow workers is punished, and everything costs money. She might not have come there in a truly voluntary way. Perhaps the contractor bought all the local farms from the previous landlord and jacked up the rent just to get cheap labor in the factories. Maybe the government radically increased taxes on small farmers to get the same result. Or, in some countries, she may have been just ordered off the farm by corrupt police or government officials.
I believe that comparing dollars-per-day is dangerously misleading if it's done by the standards of the modern western middle class. Of course you and I know that making ten times as much money per hour is "better." But we're used to paying money for everything, and we don't mind it because of the nice effects of the division of labor that allows. Our job mobility, communication resources, and general ability to control our own lives mean we can hold employers accountable, even in a slow economy. It's not always like that for overseas sweatshop workers--they're far more likely to be evicted from their old villages, and left to work in the factories or starve, than to have freely made a choice to come to the big city for a factory job.
Sure, it may not be as grim all of the time as I'm making it sound. I'm mainly just objecting to the facile proposition that the higher cash wages from the sweatshop system are incompatible with exploitation.
Freedom of speech, not freedom of commerce (Score:2)
Nike can speak all they want, they just can't sell those items which they have falsely promoted.
Maybe that's semantics, but it makes sense to me.
Not a good precedent (Score:2)
Free Speech, yeah, right.... (Score:3, Insightful)
If I were engaged in a "public debate" and deliberately spread lies about Nike (or any other major corp), saying they operated sweatshops, dumped toxic chemicals, or any number of other accusations that I knew were false (or that I had just made up and didn't actually have any evidence), and I managed to find someone who'd actually publish the message far and wide...
Nike would sue me for libel or slander in no time at all.
But if the dissenting judges get their way, Nike et all will remain above the law when it comes to making deliberately false statements about themselves!
Individuals and activist orgs (plaintifs) have got to tell the truth, but major corps (defendants) are allowed to lie when speaking to the public. Yeah, right, that'll "promote vigorous and meaningful debate". I'm glad only a minor of the judges bought (or maybe they were "bought" $$$) into this bullshit!
Being able to speak freely, . . (Score:2)
KFG
The European Solution (Score:2)
Freedom for US, none for THEM (Score:2, Insightful)
This goes for free speech too now. At least it's consistent.
Re:Freedom for US, none for THEM (Score:2)
So what? It's not their right to free speech that's being curtailed here.
Disastrous boilerplate PR (Score:5, Interesting)
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Nike forbids child labor (...) meeting or in some cases, exceeding certain U.S. and international labor standards.
Look! We're meeting certain international standards!-
Nike pushed the envelope of corporate transparency by placing user-friendly information on it's Web site, www.nikebiz.com
Look! We can't spell, either!-
Nike belongs to the Fair Labor Association, a White House inspired organization to monitor and set policies for companies manufacturing in developing countries.
Look! Our inspiration comes from the place that would never put commercial interests before social, human or environmental rights: the White House !!! Hmmm... Maybe the majority would rather influence this "modern" world, than just describe it?Nike not the real villain (Score:3, Insightful)
We in Europe and also the USA make life hard for them by keeping their food and their textiles out of our markets. So they have to turn to other work, such as making trainers for Nike. The real villains are the Protectionists, who wage economic warfare against the poor of the world with trade barriers.
Am I a shill for Nike? Read my declaration of interest [freeserve.co.uk]
hmm (Score:2)
Alan Caplan, one of the plaintiff's lead attorneys, saw a different message in Thursday's ruling. "Every company is going to have to meet the standard now," the Bushnell, Caplan & Fielding partner said. "If you're going to put statements out about [corporate policies], you're going to have to tell the truth."
In that case, I'm all for this decision, regardless of what the aclu wants to complain about.
Alternatives to sweatshops: (Score:4, Informative)
They make all of their garments in Los Angeles, and their workers get paid a living wage, work in comfortable conditions, and have a say in how their company is run.
As far as sweatshop-free athletic shoes, the least of many evils appears to be New Balance [newbalance.com] - most of their labor is American, they don't spend any money on product endorsements, and they're committed to product quality. Note that they're privately held, not a publicly traded company, which helps to explain why they don't feel pressured to compromise their ideals in exchange for higher profits.
I'd love to hear about other examples of alternatives to sweatshops if anyone knows of them.
Re:Alternatives to sweatshops: (Score:2)
That's what they get (Score:2)
Should corporate "speech" be protected? (Score:2)
The reason corporations were invented was to shield corporate officers from personal liability. I'm not sure even that justification makes sense. But even if the reasonableness of liability shielding is granted, why should corporations enjoy privileges like the First Amendment? Those rights should be for people, not for legally contrived abstractions.
Re:Heh.. (Score:2)
Re:Heh.. (Score:2, Interesting)
If you think Nikes are really good shoes (style, function, construction) you need to head somewhere other than FootLocker for shoes. There are dozens of sports shoe makers, try one. You'll find that nikes are designed for looks first, function second.
How many times have you had a beloved old pair of Nikes that eventually wore down to sharp plastic bits digging into your heel? Nikes are poorly made shoes, with poorly paid workers, whith fantastic marketing.
Fiduciary Duty (Score:3)
That's part of this whole notion of "fiduciary duty". Nike is literally doing the best it can for its stockholders. In a way, any company that *doesn't* do this isn't living up to its full fiduciary duty. (Sure, we can hope that Nike's actions will eventually generate enough consumer backlash that it won't be the most profitable course of action for them, but we've been hoping that for a long time now.)
Which is why I think fiduciary duty being the end-all and be-all of a corporation's existance is a crock. Too many people have forgotten that the original reason for allowing corporations was not to maximize profits, but rather to maximize production. As a society, we chose to allow corporations to form because we thought this would allow more people to reap more benefits - in a sense, a better world for all. And in a lot of ways, it's worked.
But we've let it go too far now. We need to start reigning the corporations in,and reminding them of their original purpose - to benefit society as a whole, not as a portion. It's time we reinstated partial legal responsibility for corporation ownership. You buy a share of a company, you better be prepared to use that share to make sure the company is doing right, not just maximizing profits, otherwise, you could lose more than just your investment.
Re:Lying (Score:4, Insightful)
In particular, companies should not be allowed to lie.
Re:Sue in California! (Score:2)
There are multiple courts, the California Supreme court ruled against nike, which was GOOD. They tried to use the first amendment to cover advertising fraud. They *normally vote in line with the people of the state.
Then there is the local district courts, they seem to be in favor of the corporations. These are elected officials you know... (They are in Washington state, so I'm assuming California is the same)
Then Federal court, which seem to be a tool for federal government. This is why people are found innocent in the State courts and found guilty in the federal courts. (Another long discussion about 5th amendment, duel sovereignty, etc..)
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Even when laws have been written down, they ought not always to remain unaltered. - Aristotle (384 BC - 322 BC), Politics
sig issue (Score:2)
Blockquoth the poster's
In counterpoint, the Philosopher also said:
I guess in a book called "Politics", it makes sense that Aristotle plays both sides of the fence.
Re: OT: sig issue (Score:4, Insightful)
Aristotle's stance is consistent; it merely doesn't hug one of the extremes.
One problem today in American politics is that a politician is expected to take an extreme stance, and stick to it, like "Abortions for all!" or "No abortions for anyone!" In my mind, the very fact that both extreme stances exist and conflict is essentially proof that neither one in and of itself is correct.
Aristotle is right on both counts; 1) there needs to be a way for laws to adapt when conditions render them obselete; and 2) there needs to be a system set up so that laws can't be changed based on the whims of the moment.
I think the U.S. actually follows these guidelines pretty well; it takes so many votes to amend the constitution that we've really only done it a handful of times. Amendments like the "flag-burning amendment" or "abortion amendment" or "health insurance admendment" have been thought too frivolous to really have to go that deeply into our legal system. Really, with the exception of prohibition, most of the amendments have been absolutely necessary as times changed. Women's sufferage isn't something that should come and go as the national mood changes, but it is certainly something that needed to be implemented when various technologies drastically changed the role of the woman in society.
Re: OT: sig issue (Score:2)
Re: OT: sig issue (Score:2)
Now, some people hate the Knesset cause it's so damn slow to get anything done. This, again, is because of the coalition system and you have to get enough votes from a lot of varied interests to support your bill. Personally, I think this is a virtue in government -- less opportunity for capture by entrenched interests, more opportunity for diversity of support and consensus.
-l
Re:Sue in California! (Score:2)
What the First Amendment guarantees is that you can criticize the government, not that you can shout "Fire!" in a crowded theater. Thus, if Nike really did lie about their buisiness practices, then it is perfectly constitutional to punish them.
Please note: I am not a lawyer. I am simply a US citizen who has an interest in our government. This is not legal advice.
Re:Wait, there's a different issue (Score:2)
For some purposes (Score:2)
Precedent does not in actuality confer full personhood. Corporations cannot withold evidence on grounds of self incrimination. On the other hand, as far as I know they can't be criminally prosecuted. Corporations need and should have the legal status of persons insofar as itis necessary to carry out their legitimate functions, but no further. I think this standard is reasonable, but it has not been applied in a reasonable way in the past.
For example, some right of free expression is necessary that they can sell their goods. They should even be able to speak out on public issues which affect their businesses. However, I think this privilege has been drawn overbroadly in the past to include outright engagement in politics. This gives them the kind of power that is beyond the reach of almost any individual, which is not good.
The ruling in the article appears narrowly drawn so that the first amendment privilege given to corporations is contracted, but only slightly as befits a well crafted legal ruling. Corporations have no right to misrepresent their business practices. This makes sense. I as a person have a right to misrepresnet much of my life, because it doesn't really concern you. However consumers are increasingly considering business practices as part of their puchasing decisions. Because we live in a world where brands are one of the most important properties, it is not unreasonable for consumers to have a right to a true image of what a company stands for. If you are selling a brand as well as sneakers, then you are responsible to represent that brand truthfully.
Re:Corporations are not People (Score:3, Insightful)
Re:And this is News for Nerds... (Score:3, Insightful)