Ask any elementary school student what amendments they know and I’d be willing to bet the response would include the First Amendment and how it grants us the freedom of speech. As we get older though, we learn this amendment is not a magical hall pass to say whatever we want; yelling fire in a crowded theatre, for example, is used an example of a restriction on free speech. Other restrictions include: “advocacy of illegal action, fighting words, commercial speech, and obscenity” (law.Cornell.edu, 2010). That list seems very straightforward, until you pause and realize how incredibly vague it is. There is no government list of “fighting words.” Obscenity which seems fairly basic has its lines blurred and is debated constantly. As frustrating and challenging as it may be, the First Amendment must have this ambiguity to some degree, because without it there would not be any freedom - just a list of things that are allowed.
In the case of Kasky v. Nike, commercial speech was what was called into question regarding Nike’s practices. During the late 1990s, Nike began a public relations campaign to improve their image after heavy public scrutiny of their labor practices (reclaimdemocracy.org). Marc Kasky filed a complaint against this campaign alleging that “ In the course of this public relations campaign, Nike made a series of six misrepresentations regarding its labor practices...” (reclaimdemocracy.org).
“So what’s the issue?” you may be asking. Nike made “misrepresentations” but those are not fighting words, and as long as they’re not advocating illegal activity or involve obscenities shouldn’t these misrepresentations be allowed? After all, the First Amendment doesn’t outlaw lying. This is where the issue becomes complicated. Kasky argued that Nike’s public relations campaign was commercial speech and was “based on negligent misrepresentation and intentional or reckless misrepresentation(reclaimdemocracy.org). It was also alleged that Nike engaged in business practices that were unlawful, and was a form of false advertising.
Based on the definition of the First Amendment outlined earlier, this clearly falls into the commercial speech exception and obviously Kasky was right and Nike is wrong...but it’s not that simple. Nike argued that their statements were not misleading because they do make positive impacts on the world, and that the statements made were not intended “only for the purpose of making purchasing decisions” (reclaimdemocracy.org). This is what the courts were left to reason out.
The Supreme Court agreed to hear the case, but then reversed its decision because the state court had not reached their decision (reclaimdemocracy.org). By a 4-3 vote the California Supreme Court concluded that Nike’s statements were commercial speech and could be punished if they were false or misleading. (Volokh, 2003).
The issue here for public relations professionals is not whether corporations should be allowed to make false or misleading statements, the law is quite clear on that matter. The issue is whether public relations campaigns can be construed as “commercial speech” and therefore have limited First Amendment protections. This may be a difficult concept at first for a public relations professional; we are usually very vocal about the fact that PR is not advertising and we are quite different even if advertising is used as a PR tool. If PR isn’t advertising, then how can it be held under “commercial speech”? Those points were brought up during trials and Justices Stephen Breyer and Sandra Day O’Connor brought up the issue the speech should have been protected because the commercial message was mixed with political speech and presented outside of a traditional advertising medium (Volokh, 2003).
A public relations campaign doesn’t necessarily guarantee an increase in sales and Nike’s claims that their statements were not intended only for consumers to base purchasing decisions off of could very well be argued. However, it can also be argued that despite Nike’s so called “intentions” why would they even engage in a public relations campaign if they did not expect it to positively affect the company in terms of sales and profits. Also, with media changing every day the term “traditional advertising media” is going to become increasingly vague in the coming years.
The case of Kasky v. Nike brought up many issues that directly affect public relations practice. Public relations is essentially the profession of argumentation, and what one person may consider highlighting the positives and carefully framing their campaign, another may consider negligent and intentionally misleading. As demonstrated in this post, the First Amendment was specifically designed to be broad to ensure freedom and even the courts have difficulty drawing hard lines on these issues.
Based on this case, public relations professionals should operate under the assumption their communications will be taken as “commercial speech” and despite corporate personhood debates, will not be fully protected under the First Amendment as a private citizen would be. While this may present some strain and need for greater creativity in terms of handling a crisis, like Nike’s labor criticisms, it can also prevent ongoing legal battles.
Potential First Amendment Issues PR Professionals May Face:
-Blogs- corporate or private, there is much debate about whether bloggers are actually considered journalists or reporters. In addition to the ethical concerns over taking “deals” there is also legal debate about whether bloggers should be subject to campaign-disclosure legislation (firstamendmentcenter.org).
-Field Ambiguity- Public relations is not a licensed profession like a doctor or a lawyer. There is much debate about this and whether licensing professionals should even be allowed because it could potentially restrict First Amendment rights to communicate freely.
-Advertising Blur- While there is a separation between PR and advertising, PR does use advertising as a tool. When advertising is involved, legal and ethical considerations need to be taken into account because it is no longer purely a PR campaign.
Additional Links:
- YouTube- Ashley Horton http://www.youtube.com/watch?v=ouZRv9suDrA. Provides a brief summary of First Amendment limitations in regards to public relations
- A broader issue related to commercial speech is also the issue of whether corporations are people. Corporate personhood is a hotly debated topic and one that probably will never fully be put to rest. For additional reading on corporate personhood, check out (http://reclaimdemocracy.org/corporate-personhood/).
References
Cornell University Law School. (2010, August 27). First amendment: An overview. Retrieved from http://www.law.cornell.edu/wex/first_amendment
First Amendment Center. (2013). FAQ press. Retrieved from http://www.firstamendmentcenter.org/faq/frequently-asked-questions-press
Reclaim Democracy. (2013). Kasky v. Nike — do corporations have a right to lie?. Retrieved from http://reclaimdemocracy.org/nike/
Reclaim Democracy. (2013). Nike petition to US Supreme Court. nike . Retrieved from http://reclaimdemocracy.org/wordpress/wp-content/uploads/2012/08/nikeincpetition_toussupreme.pdf
Volokh, E. (2003, June 30). Nike and the free speech knot. The Wall Street Journal. Retrieved from http://www2.law.ucla.edu/volokh/nike.htm
Nice job Katie. Thanks for being the first to serve as blog host. I'm looking forward to seeing how the others in the class respond with comments, questions, and/or examples that shed more light on this topic.
ReplyDeleteI couldn’t pick just one line out of the Conclusion of FREE ADVERTISING: THE CASE FOR PUBLIC RELATIONS AS COMMERCIAL SPEECH by Tamara R. Piety, so I included it entirely for your reading pleasure. It resonates with my beliefs on commercial speech.
ReplyDeleteVI. CONCLUSION
Those entities seeking to profit from information injected into the stream of commerce need to be accountable for the quality of that information. The incentives for the information to be misleading and inaccurate are too great and the consequences to the public too high for it to be in the public interest to issue these companies a First Amendment blank check. Public relations statements are issued in support of marketing and commercial objectives. For-profit corporations have no other legitimate reason to issue such speech. There is no reason why the public should subsidize them by not only ensuring that they can get “free advertising” in the context of public relations, but that there will be no legal consequences for false speech. Given the relative paucity of explicit claims in “traditional advertising,” claims which under current doctrine can be tested for their truth, and the clear marketing and commercial relevance of explicit claims made in the public relations context, far from being cut back, the Supreme Court ought to make clear that the commercial speech doctrine includes statements made in the public relations context.256 The Court should reaffirm the commitment it made earlier in the doctrine’s genesis, that merely inserting a matter of public interest will not immunize commercial statements from regulatory scrutiny when the public is likely to be misled.257 It is still in the interest of the proper functioning of the market that “the stream of commercial information flow cleanly as well as freely.”258
* Ms. Piety is an Associate Professor at University of Tulsa College of Law. Article was presented at the 2005 Law, Culture & Humanities Conference in Austin, Texas. Retrieved from http://law.lclark.edu/live/files/9638-lcb102pietypdf
I think the blurred lines between commercial and corporate speech is where PR practitioners find themselves being called spinners. It is a slippery slope. When one uses the umbrella of corporate speech to “tell” about the company’s policies (code of ethics, fair labor, etc), it comes off as trying to “sell” a product which is unethical and unlawful.
Furthermore, The Center for First Amendment Studies (CFAS) web-site says, “Absolute freedom to do and say as one pleases cannot exist in society. Sooner or later, society exerts pressure on individuals to curtail their freedoms for the good of all. Indeed, one can say that civilization, particularly western civilization, with its holding the individual in high value, is a study in how individual freedoms are balanced against the needs of the group”. This is kind of similar to the debated topic of corporate personhood that Katie brings up. Does it come down to that now corporations are what determine our laws or should it be individuals? To me this all sums up to one word - honesty. Overall, it is important and necessary that corporate and commercial speech both is truthful and respects the public.
CFAS provides programs designed to educate students about their First Amendment heritage, its impact on new technologies, and to encourage faculty members to do original research on freedom of expression. Retrieved from http://www.firstamendmentstudies.org/wp/libel.html.
Corporate personhood complicates already difficult topics like commercial speech and First Amendment issues. Personally, I don't believe corporations should have the same First Amendment rights as private citizens because they aren't. A corporation has the power to do more potential harm than a private citizen, so I think limiting it within reason makes sense. I agree with you that it's necessary that corporate and commercial speech is truthful, but realistically I see corporations testing how far they can stretch that truth.
ReplyDeleteI have to agree with your overall conclusion Katie and Sarah. Yes some could say that is certainly a challenge for public relations professionals to have different rights within the First Amendment compared to private citizens, making our words more heavily scrutinized, but as both of you pointed out, we have more power to have a larger positive or negative impact with our words. In the Nike case, I feel that the judges were correct in their ruling stating that their statements were "commercial speech" because at the end of their day their goal was to change the public's negative perception of their brand in order to revamp their sales. Yes were are a separate field from advertising, but when working for certain companies like Nike, whose success is based on their sales of products, a portion of the messages we send to the public are meant to help the promotion of sales by bettering the public's opinion of the company.
ReplyDeleteNike was valid in their argument against trying to provide false information to the public because the First Amendment does give them the room to make this argument, but at the end of the day their words are going to have an impact on the public and their audiences because they are a globally recognized brand. That power is much different than the words of a common citizen. Some may argue that there should be no distinction because that is unconstitutional, however as a non accredited profession we basically have our ethics to be our guides and the fact of the matter is that not all public relations professionals are going to follow those ethics. By having this "commercial statement" clause within the First Amendment for those public organizations and professions who have the power to have an effect on public opinion and perception, it creates a standard and punishment system that our field needs to keep practitioners in line.
The First Amendment is rightfully vague enough to allow citizens to have the freedoms of speech our nation prides itself on. It is because of this that white supremacist organizations like the one in this week's readings can post their beliefs and philosophies on the internet for all to see and no one can force them to take it down. When these thoughts are taken into action is when laws are broken. Our words and messages as public relations practitioners encourage certain ideas and possible actions to the public, which is why we need to be held at a higher citizen. We promise to tell the truth to the public and it is important that repercussions for false information are enforced.
Good points! While overall I agree with the court's decision, I don't blame Nike for trying to fight it in court. Any PR professional is going to try to present their client in the best possible light and defending Nike's practices had to be a tricky situation. Ultimately, Nike overstepped the freedoms of the First Amendment and went from "positive light on a negative situation" to "false statements".
DeleteWell done Katie!!
ReplyDeleteYou made it a point in your post to acknowledge the fact that Public Relations professionals are not licensed as a doctor or lawyer are in their profession. This idea and concept of licensing PR professionals has resonated with me since my first day in Principles and Theories when our homework included this exact discussion. I raise this point here, now in the class, because I believe one of the hardest things to manage in public relations is where to draw the line, because as Sara pointed out, it is indeed, so blurred. Unlike being a doctor or a lawyer there is no definitive code of ethics when it comes to PR which is where I believe Nike ran into trouble in this case.
This example is extreme but it is the best one I can think of: If you take a look at the wrongful death of Michael Jackson and Dr. Conrad Murray's trial, he was easily convicted of involuntary manslaughter because he was negligent in his practices. There is a definitive line of knowing what is right and what was wrong and he was blatantly wrong, and it cost a life. Where in the world of PR does it have definitive answers to any situation...? It doesn't. That's not to say that PR professionals shouldn't be held responsible for following the law, morals, and created codes of ethics but it certainly makes it much more difficult to prove "negligence" in Public Relations.
I could not agree with you more when discuss the vagueness of the first amendment. If you really think about it, the first amendment is HIGHLY up to interpretation which is what makes it so tricky. Everyone's opinion of the First Amendment varies. For example, "Fighting Words" what exactly does that constitute? Perhaps in one persons opinion it is a threat to their well being while someone else could easily interpret the antagonizing political campaigns as such. Again, I know those examples are extreme but it just goes to show just how difficult it is to use the First Amendment against someone or some organization in a court of law.
I agree with the outcome of the case because had the outcome been to let Nike off the hook with just a slap on the wrist would open a huge can of worms. They needed to set the precedent. The courts do have to set an example and I understand that. No one is above the law. Yes, Public Relations professionals seem to often be caught between a rock and a hard place (aka the right thing to do and the right thing for your company). However, that is a part of the job in my opinion. You know what you are getting into. At some point your morals will be put into question and it is up to you as the individual to make a decision. The bottom line is that yes, the PR waters are foggy so tread very carefully.
Great points about how subjective the First Amendment is. I thought the same thing when reading the exceptions, for one person a criticism of their family would be taken as "fighting words" but the speaker may have just intended it as a critique and then it's left up to the courts to decide. I think the First Amendment needs to be vague so as not to restrict freedoms, but it definitely adds a level of difficulty when you're in a profession such as public relations that relies on words and persuasion so heavily.
DeleteKatie,
ReplyDeleteI don’t inherently like or support misrepresentation in advertising or public relations campaigns; however, it is something we just have to accept. Advertisers paint the pictures they want us to see instead of showing us a picture and allowing us to interpret it on our own. There really are misrepresentations everywhere. When Beyonce was named the “Most Beautiful Person in the World,” (on the heels of her fraudulent pregnancy), there was an uproar over how she possibly could have been named or voted “Most Beautiful.” Certainly most of us could come up with someone more beautiful and besides, her celebrity was unpopular at the time (surely the only reason we doubted). Then came stories of People magazine actually using the “Most Beautiful Woman” (and possibly “Sexiest Man?”) as a sort of advertorial or a misrepresentation – they were trying to promote Beyonce to raise the station of her celebrity, not that she was not famous, but her popularity had been waning. So here we have a seemingly reputable, long-running magazine and we learn they aren’t actually voting on these people. How were they deciding on them? Should Beyonce instead be named, “the celebrity with the deepest pockets” or perhaps “the celebrity with the biggest money machines in her corner?” Does it even make sense that they just name whatever celebrity is having a bad week to an honor that will increase their favor? Does it really work? We have to consider celebrities as “brands.” They are their own brand. Britney. Paris. Lindsay. Scarlett. Rihanna. Tupac. Eminem. Hendrix. Kim Kardashian is a celebrity that is known for her publicity stunt wedding. Do we tolerate misrepresentation in our celebrities, but then not allow it in advertising? Should lying to consumers be allowed simply because it is protected by the First Amendment? Was there no other advertising alternative for Nike except deliberately deceiving the public? Could they not have been more creative and come up with a PR campaign that send the same message, but had a positive tone and was not deceptive? I think I agree with the “commercial speech” argument, because I believe that corporations have an ethical/moral responsibility to their publics. I don’t like limiting the powers of the First Amendment, or renaming the rights of corporations, but sadly, we cannot rely on them to act ethically in all of their campaigns, so maybe “regulation” through assigning their rights under commercial speech is the way to go.
Great points about celebrities being brands. Which definitely blurs corporations as people even more than it already is! I think the main thing is while celebrities may be selling things, they're still people not corporations. Celebrities also have limited rights and privacies (kind of like an in between with regular people- celebrities- corporations) when it comes to defamation and being a public figure (which I believe is next weeks topic).
DeleteI think Nike could have focused on other areas of its company and avoided the whole labor dispute entirely, but it would have been seen as a cop out and I think that's why they took a chance on the controversial messaging and hoped it would work out for them in the end.
http://www.businessweek.com/stories/2003-04-27/free-speech-or-false-advertising
ReplyDeleteThis article gives more information on the case, but also outlines the case for "commercial speech."
Great link!
DeleteKatie, I thought this was a great post. You were thorough, thoughtful and insightful all at the same time; impressive work!
ReplyDeleteThe First Amendment is a very loosely written law and vague, to say the least. But isn't that how it should be? Isn't that the way we would rather have it? In the 1790s-early 1800s we had the Alien and Sedition Acts. Essentially, those acts stripped your ability to say what you wanted about the government. If you spoke negatively, you were thrown in jail. After long, it had been realized that those acts were in fact unconstitutional and they were repealed.
There have been various other attempts in American history where the government has made attempts to censor the press and censor speech. Abraham Lincoln did it during the Civil War, many others after him tried unsuccessfully too. But what makes America so different from everywhere else is that First Amendment and the freedoms that come with it. Thomas Jefferson said that without the freedom of the press/freedom of speech, America wouldn't be able to stand alone and survive. Throughout history it has been an epic debate of what does the first amendment mean. It has varying means depending on who is arguing about it.
Back in my media law and ethics class I took my junior year at Quinnipiac (MSS 340 for those familiar with it), we had to argue cases. We would pick one side and argue against someone else. The class didn't know the outcome of the case, but the two "lawyers" did. Even if our side had lost, we still had to argue as if we could win the case. I got the opportunity to argue Cohen v. California (1971). It is quite the case. Paul Cohen had his conviction overturned for the crime of disturbing the peace for wearing a jacket inside the Los Angeles Courthouse in the corridor outside the division 20 of the municipal court that displayed the phrase, "F--- the Draft." (the word was spelled out).
Judge Harlan's decision read as follows: "[A]bsent a more particularized and compelling reason for its actions," Harlan continued, "the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense." In his opinion Justice Harlan famously wrote "one man's vulgarity is another's lyric" (Wikipedia).
My job for this argument was to argue against Cohen. I tied in the first amendment saying that the word was a loud word, even if it was unspoken, because it caused people to divert their attention. When someone uses that word, people look up, it causes a stir. I said that because of this, they constituted as "fighting words" which is prohibited under the amendment. I said that it could reasonably cause a riot, especially if someone had lost a loved one as a solider in the war and found his loud language offensive. The amendment is in place to protect the marketplace of ideas and I argued that Cohen tried to tear that down.
My point is that the amendment is vague for these reasons; to interpret what we think and bring healthy discussion to the table as a result. I like the arguments you made, Katie. I think Kasky was right. How could you do a PR campaign without knowing it is going to impact your bottom line. You don't, otherwise it's a useless campaign. People don't do these things for fun or for the hell of it. I agree with Kasky.
I definitely agree with you about the First Amendment. Passing legislation that limits those freedoms is dangerous and potentially a slippery slope. Taking rights away, or limiting them, in reaction to some sort of controversy seems like an easy fix; but the consequences of those decisions are far reaching.
DeleteI can see why the courts ruled as they did, but I think it was a risk Nike had to take. There was a lot of negative attention and they had to mitigate that, I think if the statements weren't false or at least a bit more vague, the courts ruling would have been different.
One more great source:
ReplyDeletehttp://faculty.simpson.edu/brian.steffen/www/cmspeech.html
Interesting read!
DeleteGreat work, Katie. This was an excellent example of the blurred lines PR professionals face when it comes to the First Amendment.
ReplyDeleteThe First Amendment is a wonderful, beautiful thing. Without it, we wouldn't have Martin Luther King Jr's "I Have a Dream" speech, or Courtney Love's (random, I know), speech on piracy and music. The First Amendment literally gives people a voice, even to those who can't speak. It's also, as you wrote, a highly debated, interpreted, and manipulated piece of United States history.
After reading some of the others' responses, my thoughts clicked with Beth's. The world of entertainment is riddled with sneaky PR campaigns that are timed perfectly with the release of a new movie or a new album. The news that Tom Hanks has diabetes just happened to come out at the time Captain Phillips was being released. Kenny "Babyface" Edmonds has a new album coming out in December and - look at that! - he was just honored with a star on the Walk of Fame. Nothing in entertainment is coincidental. It's all calculated, timed perfectly, and it's done to raise awareness of the celebrity and to boost sales.
Isn't that exactly what Nike was being accused of in Nike vs. Kasky?
As PR professionals, our job is to create a positive relationship between the public and the corporation. That means being transparent when necessary, and at other times staying quiet. In this situation, I don't think Nike - or any corporation, for that matter - could just sit back and then the accusations be thrown at them without responding. Nike is a world-wide, multi-billion dollar company. Most people know that they have shady business practices. The fact of the matter is, most profitable companies have shady business practices. It doesn't prevent people from buying their sneakers or shorts. What I would argue is that it's not the material that makes Nike so popular - it is HOW their brand is portrayed. It's their public relations campaigns, their advertising, the athletes who they sponsor. Their whole business is built on who they are, so of course they were going to do anything necessary to make sure that their image and reputation remained intact.
I agree with Kacey in that this case needed to set an example for all other similar cases that will inevitably follow. It's unfortunate, but as the profession has already done throughout the years, it will continue to evolve and progress. Both with and against the First Amendment.
Great points about timing and when these stories come out. I think because these things happen all the time Nike really got slammed on this because of the false statements. Every company does things like this, and because of the First Amendment as shady as it is they can't be taken to court over it. However, when corporations cross that line that already allows for so much and use false statements and deceive the public they're going to definitely have to answer for that. It'll be interesting to see how cases like this progress in the coming years.
ReplyDelete