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
