Lawsuits Against Nike.

Why Have American Courts Abandoned the Freedom of Speech?

Nike and Reebok, two of today’s most prominent athletic brands, have been embroiled in an ugly spat over control of the sportswear business. The feud was particularly nasty because it involved two giants in competing markets, with Nike making more than twice what Reebok does in a comparable niche. For the first time, it looked like the companies were about to come into direct competition, with high-powered lawsuits being filed in court by both sides. And it looked as if Nike was going to win…

But then, in yet another bit of good news for Nike, the United States Supreme Court announced that it would not take up the Reebok case, which brought to an end the legal battle that claimed undue enrichment to Nike.

According to the court’s decision, the second amendment gives the people the right to sue anyone they feel is infringing upon their right to freedom of speech. This means that the lawsuits could be brought against those who make statements that are deemed to have a negative impact on their business or company, regardless of whether those statements are true or not. Furthermore, the second amendment also protects the right of people to use any lawful means to protect themselves from defamation, so long as such protection does not impinge on another person’s rights.

The crux of the matter was the contention that Nike had engaged in conduct of false advertising by permitting their endorsers to promote products that amounted to commercial speech that was detrimental to Nike’s business interests.

The argument went that because Nike allowed its employees to speak out in support of a particular product (in this case, a basketball shoe), the shoes were endorsed by Nike and therefore amounted to false advertising. The crux of this reasoning is that while Nike might have free speech rights to speak about its products, its employees’ speech did not deserve protection under the first amendment.

In holding that the United States Supreme Court exceeded the scope of Congress’ Commerce Clause authority in determining that Nike violated the anti-boycott act, the appeals court cited to cases concerning political speech.

The court based its holding on Tinker v. Des Moines Power Co. (supra) and again quoting from cases taken from political speech cases decided by the United States Supreme Court. In Tinker, the Court held that the federal government could not ban the publication of an anti-oil advertisement. The court noted that it could not read the words of the law to extend protection to political speech. In the political speech cases, the Supreme Court held that the press enjoyed absolute free speech rights.

The courts also cited instances in which they concluded that corporations were not allowed to engage in political speech.

Two of these examples are cited below. The first involved a case concerning the airing of a movie about a candidate for Congress. The second involved the broadcasting of a documentary attacking a candidate for Congress.

Interestingly enough, when the United States Supreme Court reviewed the constitutionality of a criminal law against hate speech in a major university, it did not mention the courts’ determination that corporations enjoy certain rights to free speech.

The court instead left the issue to a lower court. It is not clear why the courts prefer to review cases involving private citizens rather than higher courts, when those same courts are responsible for protecting the civil liberties of all Americans.

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