In one of its most highly charged cases, the Supreme Court will soon rule on whether the First Amendment to the United States Constitution - the one that protects the free speech of living, breathing humans - allows multinational sneaker giant Nike corporation to deceive customers about working conditions in the company's global factories. These factories allegedly employ children under the age of sixteen, impose twelve-hour workdays, pay illegal poverty wages and expose workers to life-threatening environmental toxins.
The man who brought the lawsuit, Mark Kasky, is a runner who used to lace on Nike sneakers. But when Kasky found out that Nike - contrary to its own PR campaign - produces sneakers in factories that resemble 19th century London sweatshops depicted by Charles Dickens, he got mad. Kasky sued Nike under a California consumer protection law that requires companies to truthfully disclose how products are made.
Most Nike sneakers are assembled in Southeast Asia: China, Thailand, Indonesia, Taiwan, South Korea and Vietnam. There, Nike employs tens of thousands of workers, the vast majority women under the age of twenty-four. In the mid-nineties, a Nike whistleblower released an audit - conducted by Nike's own accounting firm -- of a large Vietnamese factory. The report found widespread violations of local regulations and pollution causing respiratory problems in seventy-seven percent of the workers. Soon thereafter, the Hong Kong Christian Industrial Committee released an exhaustive study of Chinese factories -- including three working for Nike -- which exposed eleven to twelve hour work days, compulsory overtime, violations of minimum wage laws, exposure to dangerous levels of dust and toxic fumes, and employment of child labor.
News accounts of Nike's global sweatshops snowballed. The Oregonian, Nike's home state newspaper, charged that "[t]he [c]ompany' s worldwide production system has turned the Beaverton [Oregon] giant into an international human rights incident." The North Carolina News & Record, queried: "[W]ho wants to enjoy products made on the backs of human misery?" The New York Times ran a series of eight articles in 1996 and 1997, documenting "grim conditions" and pervasive human rights abuses in Nike factories.
Despite the mounting evidence, Nike continued to represent itself as a model employer. Trying to burnish its image and protect a billion-dollar annual advertising budget, Nike pledged to customers that it did not employ child labor and that it paid minimum wages. The company sent letters to college presidents assuring them that it complied with health and safety laws and that Nike "is doing a good job" and "operating morally". (Universities face growing demands by students who formed "anti-sweatshop" groups to boycott Nike products.)
The California Supreme Court rejected Nike's claim that California laws requiring the company to speak truthfully violate Nike's First Amendment rights. That's when Nike appealed to the Supreme Court, fielding a multi-million dollar legal squad that makes the O.J. Simpson defense team look like underpaid public defenders. Harvard Law professor Lawrence Tribe will argue for Nike before the Supreme Court while multinational law firm Debevoise and Plimpton leads a battalion of dozens of corporate lawyers filing hundreds of pages of briefs.
In the past, the Supreme Court has extended all manner of constitutional protections to corporations. This despite the fact that the Constitution nowhere mentions the word "corporation." In an astounding act of legal prestidigitation, the Justices simply decreed that corporations are "persons" and thus entitled to all the safeguards of living, breathing humans. There has never been such a breathtaking fiction in American law since the legal system justified slavery in the nineteenth century by employing the myth that persons are property. For the Supreme Court to rule that property - i.e. corporations - are persons is equally extraordinary.
The true agenda of Nike and the legions of corporations supporting its Supreme Court case is to use the Constitution, especially the First Amendment, to subvert any attempts by the people and government to control corporate behavior. Corporate lawyers have already argued that the securities laws - the ones that require companies to report numbers truthfully to investors - also violate corporate First Amendment rights. Could there be a worse time in American history to argue that the Constitution protects corporations' ability to deceive workers, investors and consumers?
The Supreme Court now has an opportunity to renounce its judicial activism and rule for the people, not global corporations. "Just do it" should mean treat workers with dignity and tell the truth to investors.
Carl J. Mayer is one of the lawyers submitting Amicus Curiae briefs to the Supreme Court opposing Nike's First Amendment claim. A former professor at Hofstra Law School, he has written on corporations and the constitution.