Toward a Marketplace of Dissent

If the first amendment is to have an organizing symbol . . .
let it be the image of the dissenter.

-- Steven H. Shiffrin³⁵²

For all its PR campaigns, Nike could never dodge the bullets fired by New York Times columnist Bob Herbert, who devoted nine columns to attacking the shoe company s labor practices abroad.³⁵³ Here is a sampling of what he said:

· While the fabulous wealth of men like Philip Knight and Michael Jordan continues to soar, the pathetic wages of the workers who make Nike products are ruthlessly suppressed. ³⁵⁴

· Nike executives know exactly what is going on in Indonesia. They are not bothered by the cries of the oppressed. It suits them. Each cry is a signal that their investment is paying off. ³⁵⁵

· Rather than crack down on the abusive conditions in the factories, Nike has resorted to an elaborate international public relations campaign to give the appearance that it cares about the workers. But no amount of public relations will change the fact that a full-time worker who makes $1.60 a day is likely to spend a fair amount of time hungry if three very simple meals cost $2.10. ³⁵⁶

· The abuses continue, even as Mr. Knight spends untold millions trying to show what a good guy he is. ³⁵⁷

Absent New York Times Co. v. Sullivan,³⁵⁸ such hard-hitting journalism may have been met by a libel action. Tellingly, though Nike vigorously refuted Marc Kasky s claims, it never filed a defamation suit against him. What could not likely be accomplished by Nike in the realm of defamation, however, could be achieved by Kasky in the realm of consumer protection. Given the California Supreme Court s ruling, the law remains stacked in favor of anti-corporate speech. Even if one agrees with that critique, and we are sympathetic to it to a point, can it really be denied that this scenario smacks of content discrimination? Perhaps activists take comfort in suppressing a modicum of Nike s communications because they feel that, in almost every other way, the company s burgeoning ad budgets drown out their progressive messages. In essence, government censorship is invoked to rectify, at least to some degree, what they perceive to be a speech imbalance. But, of course, that form of tit-for-tat is not a stratagem easily reconciled with the First Amendment. We cannot censor corporate messages without deconstructing the architecture of America s commercial culture at the same time. For our advanced capitalist society to endorse such a stratagem would be highly dysfunctional.

This level-the-playing-field approach to First Amendment law assumes that censorship is vital to a healthy democracy. But are there other, non-censorial ways to counter the corporate message machine? Consider again Bob Herbert s pounding rhetoric. PR can never buy that kind of unrelenting copy. If anything, the Fourth Estate acted admirably, with a flood of stories, columns, and editorials, in taking on the corporate Goliath. As Naomi Klein asserted, Nike s sweatshop scandals have been the subject of over 1,500 news articles and opinion columns. ³⁵⁹ That torrent of news analysis, we posit, more than evened out the verbal playing field in this case. In fact, one senses that the more that Nike escalated its PR campaign, the more the press rose to the challenge. And in the course of it all, millions of Americans came to see Nike in a new and not so flattering light.

But the Kaskys and ReclaimDemocracy.orgs of America must, nonetheless, retain an equal right to criticize and condemn the captains of commerce, those who in their eyes drain people s life force in the name of profit. If corporations can drape themselves in the First Amendment, at least as to true claims about products and/or questionable claims about things like labor practices, then citizen critics need an equally robust First Amendment. That is why we propose, in broad and preliminary outline form,³⁶⁰ three corresponding citizen rights:

· First, a right to criticize corporate conduct freely without fear of defamation actions, absent some real showing³⁶¹ of malice or reckless disregard, even if the corporation is not a public figure.

· Second, the constitutionalization of anti-SLAPP law principles³⁶² to safeguard corporate critics against abusive defamation suits and related kinds of legal actions.

· Third, an enhanced and vigorous First Amendment right to parody and critique corporate entities, products, or communications by a liberal use of their intellectual property, such as trademarked logos or copyrighted materials, so as to contribute meaningfully to public debate.³⁶³

The idea in all of this is to foster dissent to the greatest extent possible. If the critics of corporations cannot change the structure of capitalism and the culture it creates, let them at least rail against corporations and their communications in the hope that it is still possible to prick the conscience of a nation. By that measure, those who value the First Amendment owe a peculiar debt to Marc Kasky, not because he championed censorship but because he defended dissent.