Can a Press Release Be False Advertising?
W A S H I N G T O N, April 23 -- If a coffee chain falsely advertises that its beans are harvested in a "rain-forest friendly" manner or a tuna company labels its product "dolphin-safe" when it's not, both companies could be in violation of false-advertising laws.
But what about public statements that a company issues through press releases and in letters to newspaper editors?
Is this also advertising, and thus subject to consumer fraud charges if found to be false? Or is it political speech entitled to much broader protection under the First Amendment?
That is the question that the U.S. Supreme Court tackled today when it heard Nike vs. Kasky.
At issue in the case is whether statements the Oregon-based athletic shoe behemoth made in defense of its labor practices can be considered grounds for a consumer fraud lawsuit, as the man who brought the case, San Francisco resident Marc Kasky, argues, or whether Nike's speech is protected by the First Amendment.
To resolve the issue, the justices face the daunting task of defining commercial speech, a vague category that they agree covers television and newspaper advertisements, but doesn't necessarily include press releases, letters to newspapers, and the myriad other ways that a company communicates to the public.
If such speech is found to be commercial, it may be subject to false advertising laws. If it is deemed political, it would be entitled to broader First Amendment protection.
Is It Both?
"It's both," Justice Stephen Breyer said during the hour-long session, "[Nike's] both trying to sell a product and contribute to political speech. So what do we do?"
Essentially, says American University constitutional law professor Jamin Raskin, the court's decision will clarify "whether all corporate speech is commercial because it has as its bottom line profit, or whether corporations can act outside that as political beings."
If the court finds for Kasky, he will have an easier time winning a lawsuit against the company, but a ruling against Nike could cause companies operating in California to curb corporate speech.
Popular Reads
ABC News Live