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First Amendment protects barking… but not commercial speech?

By Amy Ridenour
web posted June 2, 2003

An Ohio state appeals court has dismissed a case against a man who barked at a police dog that barked at him first. The city had charged the man with dog "taunting." The court backed a municipal judge's opinion that the barking was covered under the First Amendment.

Meanwhile, the U.S. Supreme Court will soon rule on case that may determine if businessmen discussing their business practices have the same constitutional rights as those who bark.

The case, Nike Inc. v. Kasky, will determine if the Nike Corporation and other businesses have free speech rights when they respond to activists' criticism -- or, for that matter, praise -- of their business practices.

Activist Marc Kasky had sued Nike, saying that statements Nike made in press releases, letters to newspapers and advertisements on the subject of Third World working conditions were inaccurate. California's Supreme Court ruled that because Nike sells products manufactured in the Third World, its speech was commercial, not political, and not protected under the First Amendment.

The result of the ruling was that Kasky's criticism of Nike was protected, while Nike's response in its own defense was not.

Kenneth Paulson, senior vice president of the freedom Forum and executive director of the First Amendment Center, says: "While there's not a lot of public sympathy for an international corporation accused of exploiting workers, the California Supreme Court's decision reeks of unfairness. The court concluded that Nike was engaged in more limited commercial speech because the purpose of the ads was to sell products. The irony here is that Nike couldn't possibly hope that its letters to the editor or full-page ads would have the effect of selling more shoes. Their real goal was to counter the negative publicity that could lead to selling fewer shoes."

Dissenting in the case, California Supreme Court Justice Ming Chin defended First Amendment protections for commercial speech: "Handicapping one side in this important worldwide debate is both ill-considered and unconstitutional. Full speech protection for one side and strict liability for the other will hardly promote vigorous and meaningful debate."

Media companies including the New York Times, the Washington Post, NBC, ABC, CBS, the American Booksellers Association Foundation and the Magazine Publishers of America urged the Supreme Court to review the California case, while Bank of America, ExxonMobil, Microsoft, Monsanto and Pfizer have warned in an amicus brief "the effect of these California statutes on First Amendment freedoms is both immediate and grave, threatening all corporate speakers with civil and criminal liabilities for engaging in protected speech."

Corporate CEOs may not always be popular, but, as Deroy Murdock, a Scripps Howard columnist and member of the black leadership network Project 21 has observed, the First Amendment should protect CEOs as vigilantly as it does neo-Nazis on the march.

Amy Ridenour is the President of the The National Center for Public Policy Research. She can be contacted at legalbriefs@nationalcenter.org.

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