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If Nike, Inc., claims that its overseas factories aren’t sweatshops, is it engaging in the public debate over its business practices? Or is it just trying to sell more shoes? That’s the question the U.S. Supreme Court will consider in April. Activist Marc Kasky is suing Nike under California’s false advertising and unfair trade practices act, claiming that the company’s public statements qualify as commercial, not political, speech. The distinction is crucial, because the Supreme Court has ruled that commercial speech enjoys less First Amendment protection and can be subject to some restrictions. Nike argues that it has a right to defend itself publicly through paid advertising, press releases, letters to the editor, and statements on its corporate Web site. Should the Supreme Court decide that such efforts qualify as commercial speech, the impact on businesses would be significant. Many media outlets have taken an interest in the case, too, since they fear that companies would stop talking to reporters altogether. Nike general counsel James Carter spoke with reporter Heather Smith about the implications of the case. Corporate Counsel: What is at risk if Kasky prevails? James Carter: Companies . . . [won't] have the same rights to [engage in] a free and robust debate on an even playing field with critics and others who have that opportunity. [And that will be] to the detriment of the listeners, whether they are consumers or just the public interested in these issues. CC: How would you define commercial speech? JC: It would relate to a particular . . . product. [The] statements that are the basis of this case are not about specific products. CC: Why have media organizations been so concerned about this case? JC: A company wouldn’t be protected by the fact that statements were made public through third parties, even reporters. So if I’m a reporter, one concern would be that I can’t get free or easy access to companies to talk to me about issues that are in this realm � globalization, corporate responsibility, whatever � because those companies would recognize that their statements, even [if made] on an informational background basis . . . could put them at risk. CC: If the Court decides that Nike has engaged in commercial speech that can be restricted, could the company present its positions any other way? JC: I don’t think we can. That’s really the heart of the issue here. We have a public profile. We are the case about globalization in many people’s minds, so if we’re not given this opportunity . . . to talk [about the topic], I don’t know that we have another option. . . . It’s hard to talk about globalization and factories in Asia without talking about ourselves as part of the process. And that’s what we’re asking for � the opportunity to do that.

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