The ACLU Story

[W]hy is the ACLU devoting resources to argue that
transnational corporations like Nike should enjoy
Bill of Rights protections?

-- Jeff Milchen, Director, ReclaimDemocracy.org⁴⁹

When Marc Kasky filed his lawsuit against Nike, Ann Brick was a lawyer for the Northern California chapter of the American Civil Liberties Union.⁵⁰ In time, she would file papers defending Nike—actually, defending Nike’s First Amendment right to be free of lawsuits of the kind brought by Kasky.⁵¹ As a child of the ’60s revolution and a graduate of the University of California Law School at Berkeley,⁵² Brick shared Kasky’s commitment to improving the plight of the poor and oppressed; she valued his willingness to go after international corporate wrongdoers; and she very much respected the fact that he spoke out. But another value was at stake here: free expression, namely, Nike’s right to respond to its critics’ charges without being hauled off to court. Sensitive to that value, Ann Brick took up legal arms against Marc Kasky. Her endorsement of Nike’s commercial speech rights was consistent with the national ACLU’s position. But that position had not gone without challenge in the progressive community.

In July, 1992, internal Philip Morris, Inc., papers documenting substantial financial grants to the American Civil Liberties Union were leaked to Britain’s Yorkshire Television.⁵³ The Yorkshire show caught the attention of retired journalist Morton Mintz, who had assumed that the ACLU had opposed tobacco-ad restrictions at a time when it had no monetary links to tobacco corporations. Instead, Mintz discovered that over a six-year period, Philip Morris had donated $500,000 to an ACLU foundation that had solicited the grants. The Mintz report led to a press conference on July 29th featuring consumer advocate Ralph Nader and Sidney Wolfe, Director of Public Citizen Health Research Group, who called on the ACLU to resist contributions from Big Tobacco. “We have been baffled by the seemingly inconsistent position of the ACLU on the issue of commercial speech,” said Scott Ballin, a coalition member.

The flap continued, the ACLU responded vigorously,⁵⁴ and America’s most famous civil liberties group went on to support, over strong objection, the commercial free-speech rights of tobacco, alcohol, and other corporate giants, including Nike. Kasky v. Nike, somewhat like the 1978 Skokie case,⁵⁵ thus divided the liberal community.

The ACLU of Northern California submitted amicus briefs in support of Nike, first in the California courts and later in the U.S. Supreme Court.⁵⁶ Outside of judicial forums, moreover, the ACLU took pains to describe and justify its legal position in the court of public opinion. “Our main concern in cases like Nike,” the ACLU explained, “is to ensure that important First Amendment protections are not eroded because the speaker or the speech in question is unpopular or controversial. Thus our brief was not about the merits of the controversy surrounding the conditions under which Nike’s products are manufactured.”⁵⁷ Rather, the organization filed an amicus to establish that “on the particular facts of the case, Nike was entitled to the full protection of the First Amendment in responding to the criticism leveled at it by others.”

Distinguishing Nike’s press releases and letters from typical advertisements, the ACLU’s position paper characterized them as ammunition in a war of words:

Nike was responding in the same places in which it had been the subject of criticism and in which the debate about its practices was going on. The intended audience was the general public that had read the newspaper articles and columns and seen the television shows that had criticized Nike—whether or not these members of the general public were also potential buyers of Nike’s products.

A strong First Amendment culture cannot “accept the logic that speech that furthers the economic interests of a company is always commercial speech,” lest “businesses will never be able to speak freely.” The cornerstone of a vibrant free speech society is to trust to “the people . . . to separate the wheat from chaff” when assailed with conflicting information. “While it may not always be a perfect system,” the ACLU concluded, “it is far better than one in which the government becomes the arbiter of truth, thereby silencing one side of the debate.”

Marc Kasky and the ReclaimDemocracy.org campaign were not swayed by the ACLU’s rhetoric. Indeed, they were stunned, so much so that they launched a campaign to urge the ACLU to “stop promoting corporate ‘rights’” of free speech.⁵⁸ The ACLU’s support, they reasoned, was undermining democracy rather than strengthening it. The whole idea of the First Amendment, or so they thought, was to wrestle power away from the powerful rather than further empowering them to oppress the downtrodden. The fight was on. The Left was fighting the Left.