Amicus Curiae Brief — Nike, Inc. v. Kasky

IN THE on

Supreme Court of the Unites States” ——

NIKE, INC., ef ul,

Petitioners,

Vv.

MARC KASKY,

Respondent.

On Writ of Certiorari

to the Supreme Court of California

BRIEF AMICI CURIAE OF FORTY LEADING NEWSPAPERS,

MAGAZINES, BROADCASTERS, WIRE-SERVICES, AND

MEDIA-RELATED PROFESSIONAL AND TRADE

ASSOCIATIONS (LISTED ON THE INSIDE COVER)

IN SUPPORT OF PETITIONERS

KELLI L. SAGER BRUCE E.H. JOHNSON*

DAVIS WRIGHT TREMAINE LLP P. CAMERON DEVORE

Suite 2400 Eric M. STAHL

865 South Figueroa Street JEFFREY L. FISHER

Los Angeles, CA 90017-2566 DAVIS WRIGHT TREMAINE LLP

(213) 633-6800 2600 Century Square

1501 Fourth Avenue

(Of Counsel listing in Appendix) Seattle, WA 98101-1688

(206) 622-3150

Counsel for Amici Curiae

February 28, 2003 *Counsel of Record

“tN

ae

LIST OF AMICI

ABC Inc.

American Booksellers Foundation for Free Expression

American Business Media

The American Society of Newspaper Editors

The Associated Press

The Association of American Publishers

Belo Corp.

Bloomberg L.P. -

CBS Broadcasting Inc.

Cable News Network LP, LLLP

The California First Amendment Coalition

California Newspaper Publishers Association

The Copley Press, Inc.

Daily News, L.P.

Dow Jones & Company, Inc.

Forbes, Inc.

Fox Entertainment Group, Inc.

Freedom Communications, Inc.

Freedom to Read Foundation

Gannett Company, Inc.

The Hearst Corporation

Magazine Publishers of America, Inc.

The McClatchy Company

National Association of Broadcasters

National Broadcasting Company, Inc.

Nationai Public Radio, Inc.

The New York Times Company

Newspaper Association of America

Newsweek, Inc.

PR Newswire Association LLC

Radio-Television News Directors Association

Reed Elsevier Inc.

Reporters Committee for Freedom of the Press

The Seattle Times Company |

Silha Center for the Study of Media Ethics and the Law

Society of Professional Journalists

Time Inc.

Tribune Company

U.S. News & World Report, L.P.

The Washington Post Company

TABLE OF CONTENTS

US OW ARI CURIE. ccccccccccssccsccsevscreccsvesvessseseosees l

SUMMARY OF ARGUMENT.................ccssssssssecsesssssoreesensees 1

TET 4

I. The California Supreme Court’s Decision, If

Il.

Affirmed, Would Inhibit the Media’s Ability To

Report on Issues of Public Concern Regarding

TTI csi eeiariereraeerneeertiaieeeremnenntenemmnenmeennntees 4

A. The California Supreme Court’s Definition of

Commercial Speech Vastly Enlarges the

Realm of Corporate Statements Subject to

ETI TERE Ee 4

B. Application of California’s Expanded

Consumer Regulations Would Impair the

Media’s Ability to Cover Numerous Issues of

Eat iniccnrisentnsrntecnensnnnesnensenensennnsescens 6

C. Nothing Inherent in Individuals’ Pursuit of

Corporate Interests Justifies Imposing Special

Burdens on Their Ability to Participate in

SEITE cinttenesitctantoninnnnnnnnnninenannsnanenentenessemenssass 13

Expansion of the Commercial Speech Doctrine

Beyond Statements That Do “No More Than

Propose a Commercial Transaction” Is

Unnecessary Because Media Coverage

Adequately Informs Consumers Regarding

Companies’ Controversial Business Practices. .............. 17

A. Corporate Communication with the Media,

Unlike Traditional Product Advertising,

Permits Public Scrutiny and Counterspeech. ........... 17

ii

B. The Media Coverage of Nike at the Center of

This Case Confirms That Subjecting Its

Speech to Consumer Protection Laws Is

Unnecessary and Inappropriate. ...............000002000+8

C. This Court Should Make Clear That Speech

That Does More Than Propose a Commercial

Transaction Cannot Be Treated as

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Ce crcsenecencierneacninnintanitemiinsnnniansiinaiinntty

APPENDIX A, Descriptions Of AMICI ..........c.:ccsceeseeeeseeees

APPENDIX B, Of Counsel Listing.................-ssssseeseseeeees

.22

.27

TABLE OF AUTHORITIES

CASES

Associated Press v. United States, 326 U.S. 1 (1945)......6, 21

Bates v. State Bar of Ariz., 433 U.S. 350 (1977)............000-+. 18

Bolger v. Youngs Drug Products Corp., 463 U.S. 60

Supe eceieihasieehesnsitenenabcnieieaiaieeataai 14, 28

Branzburg v. Hayes, 408 U.S. 665 ..........csccsscscsscsseseceeeeeees 20

Central Hudson Gas & Electrical Corp. v. Public

Serv. Comm'n, 447 U.S. 557 (1980) ........cc.-ccceecceeeeeeeeees 28

Chern v. Bank of America, 544 P.2d 1310 (Cal. 1976).......... 5

City of Cincinnati v. Discovery Network, 507 U.S.

ea cincerresincsieteiietiiiniinhitnaclatncaieeanniatiiiniaansiaidaiaiieacaarass 28, 29

Connick v. Myers, 461 U.S. 138 (1983) ..........:.cccceesseeeeeeeeeees 5

Consolidated Edison Co. v. Public Service Comm'n,

gE Tea ee Lerma ee Eee 14

Cortez v. Purolator Air Filtration Products, 999 P.2d

nN IIIT cihiecneirilieinteiahiasiatiata tetas 5

Edenfield v. Fane, 507 U.S. 761 (1993).........c.ccceeseeeseeees 2,19

Estes v. Texas, 381 U.S. 532 (196S).........cceccccoscscccscsccceseesess 20

First National Bank of Boston v. Bellotti, 435 U.S.

ee aiihiaiiidialiciitinintaiaictatiaitialciatia a iaaindiaiiiti 7, 14,21, 22

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

ETE asicnsvecicennsenavsietidsibdetenanienienainiiniatieadniieuaiaiiiinanipememmaaie 19

iv

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).......... 14, 20

Hustler Magazine » Falwell, 485 U.S. 46 (1988) ............+ 7

Keyishian v. Board of Regents, 385 U.S. 589 (1967)........... 27

Leoni v. State Bar, 704 P.2d 183 (Cal. 1985)...........ccceceeseeees 5

NAACP v. Button, 371 U.S. 415 (1963) .........ccccecceeeeereneeeees 27

New York Times Co. v. Sullivan,

a Se ccceninnetenrennssnsstenem 7, 16, 18, 21, 26

Ohralik v. Ohio State Bar Ass'n,

Re 3, 18, 26, 29

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).......ccececeerees 22

Bowe BOLT, GBS UD. BOR CRB cccccsccccccsccssescsesssnsssscsssssnem 18

Riley v. National Federation of the Blind,

J) | 21, 28

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)........ 18, 26

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) ......... 18

Sherman v. United States, 356 U.S. 369 (1958)...........0000++ 27

Thomas v. Collins, 323 U.S. 516 (1945) ......-s---ssesseeeeeeneensee 21

United States v. United Foods, 533 U.S. 405 (2001)....... 4,27

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976)... 17, 19, 27

Whitney v. California, 274 U.S. 357 (1927)........ceeeceeeeeeeees 18

ee ek

———_ ~— ee ee we ee si;

ee ee ee eee le es

Zauderer v. Office of Disciplinary Counsel, 471 U.S.

IE arsessisieeiaincieteiataeesltoarieatatinneneraterttaiaaaiaiaaiiibin 18

OTHER AUTHORITY

Faulk, Richard O., A Chill Wind Blows: California's

Supreme Court Muzzles Corporate Speech, 16

No. 21 Andrews Del. Corp. Litig. Rep. 11 (2002)......... 12

Federalist No. 10 (Madison) (J. Cooke ed. 1961) ................ 15

First Amended Complaint, Union of Needletrades

Indus. & Textile Employees, et al. v. The Gap,

Inc., et al., No. 300474 (Ca. Super. Sept. 23,

Gray, Fred D., The Sullivan Case: A Direct Product

of the Civil Rights Movement, 42 Case W. Res. L.

EE eRe erent ne a ree 16

Lewis, Anthony, New York Times v. Sullivan

Reconsidered, 83 Colum. L. Rev. 603 (1983)................ 16

Loeb, Jonathan A. & Sklar, Jeffrey A., Be Careful

When Your Company Speaks, AGS&K Business

III siiatiiasidenntiaiccepiasialihasighieniiasiiliintsrittatataatiaatatainiin 12

Mill, John Stuart, On Liberty (Blackwell ed. 1947)............. 18

Sullivan, Kathleen M., Cheap Spirits, Cigarettes, and

Free Speech: The Implications of 44 Liquormart,

1996 Sup. Ct. Rev. 123 (1996). ........cc.cocccccesccsesssssesseeeees 19

Richman, Greenwashing on Trial, MotherJones.com

SEE ens Ptr s Oe a 13

Redish, Martin H., Product Health Claims and the

First Amendment:

Scientific Expression and the

Twilight Zone of Commercial Speech, 43 Vand. L.

Bae. B4BS CIGD I ccecccecsccsccecevcesecsecerscscvecnssnsscnseveseversooseosees 9

Wood, Gordon S., The Radicalism of the American

Revolution (1992)

PTEPEPETECLLOCCOOC LEELA

INTEREST OF AMICI CURIAE

Amici, which are listed on the inside cover and de-

scribed in Appendix A, are leading newspapers, magazines,

broadcasters, wire-services, and media-related professional

and trade associations in the United States and abroad.! They

share an interest in enforcing the First Amendment’s

prohibition against governmental interference in public

debates. Indeed, many Amici are actively reporting on the

globalization controversy that is at the center of this case, and

most of Nike’s communications to the press at issue here

were sent to them. Because the California Supreme Court’s

extension of the “commercial speech” doctrine impermissibly

intrudes on traditional methods of media coverage and public

debate, Amici respectfully submit this brief in support of

reversal.

SUMMARY OF ARGUMENT

I. The California Supreme Court’s decision — which

for the first time treats press releases, letters to the editor, and

other types of submissions to the press as “commercial

speech” that is subject to consumer protection law — seriously

jeopardizes the media’s ability to report on important issues

regarding corporate America. Even a cursory review of

prominent press coverage from the past few years reveals a

vast array of corporate speech — on issues ranging from race

discrimination to environmental sustainability to personal

health and safety — that would now be subject to California’s

new strict liability dragnet. If the decision below is not

reversed, business representatives will be deterred from

! Letters of consent have been filed with the Clerk. Pursuant to Supreme

Court Rule 37.6, Amici state that no counsel for a party authored this brief

in whole or in part, and no person or entity other than Amici and their

counsel made a monetary contribution to the preparation or submission of

this brief.

speaking to the press about these and other public issues.

This chilling effect will deprive the public of access to

important news stories and the clash of competing view-

points that undergirds the First Amendment.

Equally pernicious, the California laws at issue here

threaten to distort the business-related news that the press

continues to cover. Although the California Supreme Court

stated that certain inherent attributes of companies justify

requiring their speakers “to make greater efforts to verify the

truth of [their] statements” to the media and to prevent such

statements from being potentially misleading, Pet. App. 22a,

the First Amendment does not permit a state to disfavor one

side of public debates in this manner. To the contrary, the

Framers believed, and this Court has held, that the right to

weigh the credibility of various public advocates must be left

to the citizenry. Indeed, when, as here, certain organizations

become the focus of public scrutiny becatse of their alleged

lack of integrity or morality, courts should be especially

intolerant of rules that would discourage such entities from

speaking to the press to defend themselves.

II. Extending the definition of commercial speech

beyond advertisements that do no more than propose

commercial transactions to include corporate statements

about publicly debated business operations is not only

misguided, but it also is unnecessary. Commercial speech is

subjected to reduced First Amendment protection to prevent

“uninformed acquiescence,” Edenfield v. Fane, 507 U.S. 761,

774-75 (1993) — that is, the harm that consumers may suffer

if they respond to false product advertisements before there is

an opportunity for counterspeech and reflection. But when a

business practice becomes a matter of public concern, the

media scrutinize corporate speech and typically place

potentially misleading statements into context, thereby

providing timely and corrective information.

That, in fact, is exactly what happened in this case.

Respondent himself acknowledges that “[t]he media have

continued to expose Nike’s actual practices,” First Amended

Complaint (Petitioners’ Lodging) § 19, and an extended

review of contemporaneous press coverage of Nike confirms

that every one of Nike’s allegedly misleading statements

either was never reported or was challenged by counter-

speech in the same media outlets in which they were printed.

Under these circumstances — when the press provides

consumers with competing information and time to reflect on

it — the First Amendment prohibits states from making

speakers on either side of a debate strictly liable for

potentially deceptive or factually inaccurate statements.

Accordingly, this Court should make it clear that only

speech, such as traditional product advertising, that does no

more than propose a commercial transaction may be treated

as commercial speech. Traditional product advertising is a

“business transaction in which speech is an essential but

subordinate component,” Ohralik v. Ohio State Bar Ass'n,

436 U.S. 447, 457 (1978) (emphasis added), but a company’s

speech regarding its corporate culture, such as Nike’s speech

here, is a public statement in which business is an essential

but subordinate component. The ordinary checks on such

public statements are able to mitigate the effects of any

deceptive assertions they contain. Even when companies

attempt to raise or defend their corporate culture or social

image in advertising-type arenas, as Nike did here in its

“editorial advertisements,” the commercial element of such

communications does not pertain to the actual performance

or quality ot products or services, or to the terms and

conditions upon which they are available. Rather, these

communications are aimed at swaying public opinion on a

topic of public concern. As such, these social-image

statements also should be afforded the full protection of the

First Amendment.

ARGUMENT

I. THE CALIFORNIA SUPREME COURT’S DECTI-

SION, IF AFFIRMED, WOULD INHIBIT THE

MEDIA’S ABILITY TO REPORT ON ISSUts OF

PUBLIC CONCERN REGARDING CORPORATE

AMERICA.

A. The California Supreme Court’s Definition of

Commercial Speech Vastly Enlarges the Realm of

Corporate Statements Subject to Regulation.

The California Supreme Court has taken a doctrine

that this Court created to expand the First Amendment’s

protection of business speech and used it vastly to restrict

companies’ ability to participate in public debates.

According to the decision below, speech is now

“commercial” so long as it (i) is made by sumeone engaged

in commerce “or someone acting on behalf of a person so

engaged,” Pet. App. 18a, such as an individual spokesperson

or a trade association; (ii) is likely to reach potential buyers

or customers; and (iii) involves descriptions of “business

operations,” employment or manufacturing policies, or other

attempts to “enhance[] the image of [a company’s] product or

of its manufacturer or seller.” Pet. App. 19a-20a. Petitioners

have amply explained why this test is inconsistent with this

Court’s precedent, see Pet. for Cert. 10-15, but Amici wish to

highlight three aspects of this new doctrine.

First, although this Court has “usually defined” com-

mercial speech as that which “does no more than propose a

commercial transaction” to consumers, United States v.

United Foods, 533 U.S. 405, 409 (2001), the California

Supreme Court explicitly held that commercial speech

includes statements directed solely to reporters or newspaper

editors in their capacities as newsgatherers. Pet. App. 4a,

18a. The California Supreme Court thus ruled that a business

may be sued for consumer protection violations based on

answers given to reporters’ questions, press releases, op-ed

pieces or “editorial advertisements,” regardless of whether

the business’s speech is printed or appears as part of a news

story that includes opposing viewpoints.

Second, the California Supreme Court held that corp-

orate communications to the media need not be false or even.

purposely or negligently misleading in order to be actionable.

Pet. App. 7a. The Court ruled that such speech is unlawful —

regardless of the speaker’s intent or the public’s actual know-

ledge — if it is “actually misleading or [it] has a capacity,

likelihood or tendency to deceive or confuse the public.”

Pet. App. 7a (quoting Leoni v. State Bar, 704 P.2d 183, 194

(Cal. 1985)) (emphasis added); see also Cortez v. Purolator

Air Filtration Prods., 999 P.2d 706, 717 (Cal. 2000) (strict

liability for deceptive practice under unfair trade practices

law); Chern v. Bank of Am., 544 P.2d 1310, 1316 (Cal. 1976)

(same under false advertising law). Applied outside of

traditional advertising arenas, this standard seemingly holds

businesses strictly liable for ordinary “spin.” If an executive

or trade association granting an interview portrays a

controversial business practice in the most favorable light —

perhaps by omitting certain background details — then the

statements may well have a “capacity ... to deceive or

confuse the public,” thereby making them unlawful. What is

more, it makes no difference whether the resulting media

story clarifies these corporate statements or combines them

with other speakers’ allegations to create a balanced news

story. As evidenced by Respondent’s allegations in this case,

it is the corporation’s raw speech that provides the basis for

punishment under California law, regardless whether the

media repeat it or place it into context.

Third, although this Court has held that “speech on

public issues occupies the highest rung of the hierarchy of

First Amendment values,” Connick v. Myers, 461 U.S. 138,

145 (1983) (quotation omitted), the California Supreme

Court ruled that “it does not matter that Nike was responding

to charges publicly raised by others and was thereby

participating in a public debate” on an issue of intense

national and international interest. Pet. App. 25a. In the

California Supreme Court’s view, when public debate turns

to a company’s services or “business operations,” the

company, but not its critics, may be held strictly liable if its

public statements are determined to be potentially misleading

or false. Pet. App. 25a-27a. Indeed, under that Court’s

through-the-looking-glass view of commercial speech, the

more intense the media debate is regarding a company’s

business practice, the more likely it is that a company’s

statements will be subject to regulation and potential

litigation. This is because issues regarding a company’s

business operations that are hotly debated naturally are more

likely to affect purchasing decisions and the company’s

bottom line, and thus the company’s joinder in the debate is

more likely to be motivated in part by a desire to “maintain{[]

... profits and sales.” Pet. App. 25a.

B. Application of California’s Expanded Consumer

Regulations Would Impair the Media’s Ability to

Cover Numerous Issues of Intense Public Concern.

Accurate and useful reporting depends on considering

all sides of an issue. When a public debate concerns a

company’s business operations, attaining such a complete

picture requires newsgatherers to get information not only

from interest groups and the company’s detractors, but also

from the company itself. The First Amendment’s protection

of the press, in fact, “rests on the assumption” that gathering

and disseminating “information from diverse and antagon-

istic sources” will best serve the public welfare. Associated

Press v. United States, 326 U.S. 1, 20 (1945). Reporters

regularly strive to obtain corporate statements on issues

involving their businesses to ensure that their stories are

complete. News stories that impart the view of each

opposing party are more likely to be deemed trustworthy or

neutral by the reader or viewer.

The California law at issue here will seriously hamper

the media’s ability to obtain these critical business-oriented

statements. As a general-rule, any law that “impose[s] strict

liability on [speakers] for false factual assertions” regarding

public issues has “an undoubted ‘chilling’ effect” on valuable

speech. Hustler Magazine v. Falwell, 485 U.S. 46, 52

(1988); accord New York Times Co. v. Sullivan, 376 U.S.

254, 277-78 (1964). This Court has held that the threat of

liability has the same effect in the corporate context. If states

could punish corporate speech on any public issue that

“materially affected” the company’s profitability:

[mJuch valuable information which a

corporation might be able to provide would

remain unpublished because corporate man-

agement would not be willing to risk [those

penalties]. . . . In addition, the burden and

expense of litigating the issue — especially

when what must be established is a complex

and amorphous economic relationship -—

would unduly impinge on the exercise of the

constitutional right. [T]he free dissemination

of ideas [might] be the loser.

First Nat'l Bank of Boston v. “ellotti, 435 U.S. 765, 785 n.21

(1978) (quotation omitted). California’s expansion of the

commercial speech doctrine presents exactly these risks.

Because issues concerning companies’ business

operations are increasingly fundamental to the world’s social

and political landscape, the withdrawal of corporate voices

on those issues from the media would deprive the public of

vital information. Nike, for example, is not the only

multinational corporation whose labor policies in third world

countries have been the focus of public scrutiny. An

executive from another company, Cutter & Buck, responded

to allegations that its garments were made in overseas

“sweatshops” by telling the media that “I have no objection

to outside monitoring because I have every confidence our

factories would pass.” Les Blumenthal, Combating

Sweatshops: Not All Clothing Retailers Are Embracing

Clinton’s Plan To Have Voluntary Inspections of Overseas

Clothing Factories, The News Tribune (Tacoma, Wa.), April

15, 1997, at B4. Labor organizations sued the company,

alleging that its executive’s statement amounted to false

advertising in the same way that Nike’s speech did. First

Amended Complaint 4§ 95 & 125, Union of Needletrades

Indus. & Textile Employees, et al. v. The Gap, Inc., et al.,

No. 300474 (Ca. Super. Sept. 23, 1999). Such lawsuits are

sure to dampen public discourse on this issue.

In addition, media coverage of corporations’ business

operations goes far beyond labor policies in developing

countries. A selection of recent news coverage reveals the

extraordinary reach of the chilling effect that the California

Supreme Court’s decision would impose:

¢ Civil rights groups recently have alleged that

several companies’ practices of stocking different

merchandise or requiring different forms of payment in

predominantly minority communities amounts to invidious

racial discrimination. When asked to explain why its “no

check” policy appeared to be limited to stores in

predominantly black neighborhoods, an executive for the

parent company of KB Toys stated that despite using “check-

acceptance services designed to screen for problem checks”

in the pertinent stores, fraudulent check rates still “can be as

high as 20 percent.” Stephanie Stroughton, Suit Alleges Bias

by KB Toys, Wash. Post, Dec. 16, 1999, at Al. Although

facts like these are critical to the public debate over whether

retail “red-lining” practices are wrong and should be

ee

— = Pee.

——

prohibited, the Kasky doctrine would hold that businesses

contribute information to this debate at their peril.

by Prior to Kasky, it was accepted wisdom that “[i]f a

real scientific debate about the health impact of a product

exists, the manufacturer would retain a fully protected [First

Amendment] right to comment on that debate” outside of its

direct advertisements and product labels, “even though the

likely and intended impact of the comment on the listener

would be the creation of a desire to purchase that product.”

Martin H. Redish, Product Health Claims and the First

Amendment: Scientific Expression and the T wilight Zone of

Commercial Speech, 43 Vand. L. Rev. 1433, 1453 (1990). A

passage from a recent magazine cover story evinces this

principle:

David Ludwig, director of the Obesity Pro-

gram at Children’s Hospital in Boston, says

his research shows that “for every additional

serving of soft drinks a day, a child’s risk of

becoming obese increases by 60 percent.”

Ludwig’s soft drink study also suggests that

calories from sugar-sweetened drinks do not

seem to be as filling as calories from other

foods. Soon after Ludwig’s results hit the

media, studies paid for by the National Soft

Drink Association used government data to

show that soft drinks do not cause obesity. “If

you go through all the scientific evidence, you

see there is no link between consumption and

obesity,” says Sean McBride of the

NSDA. . . . This debate is only the beginning.

Amanda Spake & Mary Brophy Marcus, The Fattening of

America, USS. News & World Report, Aug. 19, 2002, at 46.

Indeed, this debate already is spreading to the health effects

of school lunches and of McDonald’s-type fast food.

10

Because food and beverage manufacturers’ speech on such

health-related issues undoubtedly is in part driven by product

image and economics, Kasky would restrict speech on one

side of these disputes, thereby inhibiting the media’s ability

to compare both viewpoints in order to ferret out the truth.

¢ A similar controversy recently occurred in Oregon

over a proposal to adopt a state law requiring labeling of

genetically engineered foods. Interest groups supporting the

initiative asserted that food companies are creating

“Frankenfood” — that is, “something we can’t control” — and

that they are “like little kids playing with a chemistry set in a

back bedroom.” Brad Cain, Labels for Genetically Altered

Food Put to Vote, Seattle Times, Aug. 12, 2002, at B2. A

spokesman for food manufacturers responded that genetic

alterations are “in all kinds of food, and there’s never been a

single case of illness or any other problem.” /d With

consumer protection regime like California’s in place, the

spokesman may well have declined to offer such a response,

and voters may have been deprived of this news coverage

concerning an issue central to the proposed initiative.

¢ There also are heated public debates regarding

sustainable environmental practices and whether people

should support companies that treat natural resources in

certain ways. Environmental groups, for instance, have

called on consumers and chefs to boycott swordfish and sea

bass on the ground that the seafood industry is over-fishing

those species. But the industry says that boycotts are

unnecessary because fishing companies’ new, self-imposed

quotas are sufficient to protect the ecosystem. Carolyn Jung,

Activists, Industry Debate Reason for Swordfish Comeback,

San Jose Mercury News, Oct. 16, 2002, at 1; Beth Daley, Sea

Bass Overfishing Tests Industry's Policing Ability, Boston

Globe, Aug. 21, 2002, at Al. Such give-and-take is critical

to developing effective policies not only for oceans and

rivers, but also for the world’s forests and mines. See, e.g.,

1]

Glen Martin, Redwood Logging Firm Recognized for

Sustainable Practices, S.F. Chron., Nov. 17, 2000, at All;

Terry McCarthy, Plumbing the Pasture, Time, July 16, 2001,

at 22. Yet “as public concern about the environment grows,

there is an increasing acceptance in executive suites that

industrial reform” concerning a wide range of practices “can

be good for the environment and good for profits.” Eric

Roston, New War on Waste, Time, Aug. 26, 2002, at A28

(emphasis added). Hence, the economic component of these

sustainability debates apparently makes them subject to

California’s strict liability regime.

* Finally, some important public debates occur

between two businesses. Following a recent spate of

accidents involving Ford Explorers, Bridgestone/Firestone

alleged that “the real problem” derived from unsafe vehicles,

while Ford “vehemently insist[ed] it [was] a tire problem.”

Terril Yue Jones, Bridgestone Rejects Wider Recall Request,

L.A. Times, July 20, 2001, at Bl. Although these

companies’ public descriptions of their safety tests were

driven partly by a desire to protect their profitability, id , they

also imparted vital information to consumers in the

automotive market. Under Kasky, however, such differing

corporate statements provide fodder not only for tort

lawsuits, but for “false advertising” claims as well. This type

of threat may well deter the release of contemporaneous

safety-related information the next time around, perhaps

regarding air travel. See Sally B. Donnelly, Just Plane

Dangerous, Time, Aug. 13, 2001 (dispute between airline

and its repair company). Even if a company honestly

believes its contested practice is safe or lawful, the prospect

of immediate nuisance lawsuits — not to mention additional

Kasky-based claims if a jury later disagrees with the

company’s public assessment of its practice, see Pet. App.

pao - could be too high a price to pay for defending it in the

media.

12

The threat of liability under the decision below is so

serious that businesses already have begun to constrict their

lines of communication with the press. Business periodicals

are advising companies that “[uJ]nless and until the U.S.

Supreme Court reviews Kasky . . . [t]he safest course may be

to make no reference at all to one’s products, services, or

business operations — but that may amount to saying nothing

at all when one’s industry is under general attack.” Jonathan

A. Loeb & Jeffrey A. Sklar, Be Careful When Your Company

Speaks, AGS&K Business Report (visited Oct. 23, 2002)

<http://www.alschuler.com/print/ brsum02.html>; see also

Richard O. Faulk, A Chill Wind Blows: California's Supreme

Court Muzzles Corporate Speech, 16 No. 21 Andrews Del.

Corp. Litig. Rep. 11 (2002) (urging corporate executives to

devise “preventative systems” for vetting corporate

communications and campaigns, “even those that are

‘defensive’ in nature”); Roger Parloff, Can We Talk? A

Shocking First Amendment Ruling Against Nike Radically

Reduces the Rights of Corporations to Speak Their Minds,

Fortune, Sept. 2, 2002, at 102 (describing need for businesses

to alter behavior as a result of Kasky).

There can be no doubt, in sum, that an affirmance

here would transform the way that the media report on a vast

array of public issues. Businesses, big and (even more so)

small, would be deterred from speaking on issues concerning

their operations, or they would offer only bland, indisputable

claims, for fear of being held liable for good faith errors or

unintended but potentially “misleading” implications. Spon-

taneous interviews also would be far less informative, for any

alert business would rely on carefully crafted statements

designed to keep it out of court. When news stories

themselves center on media entities or media practices — such

as the recent coverage of AOL Time Warner, the ultimate

parent of Amici CNN and Time Inc., or the current debate

over the cross-ownership and increasing consolidation of

news outlets — the California laws here present still more

13

difficulties, for they render media companies and their trade

or professional associations doubly subject to vexatious

litigation. Media organizations, as business entities, are

subject to liability for their public descriptions of their

business operations. And media organizations, as publishers,

are potentially subject to legal claims arising out of their

coverage of their corporate parents that their competitors are

not. The result of all this will be far less public information

regarding important corporate issues, to the detriment both of

businesses’ supporters and their critics.

C. Nothing Inherent in Individuals’ Pursuit of Corp-

orate Interests Justifies Imposing Special Burdens

on Their Ability to Participate in Public Debates.

The chilling effect that Kasky would impose on

businesses’ participation in public debates is, to a substantial

extent, not even contested. It is an explicit goal of some

interest groups supporting the decision. One “corporate

watchdog group” has explained that “[i]f this case is

successful, it could undermine the greenwashing strategies of

a lot of corporations that attempt to promote a positive

environmental or social image to undermine their critics and

minimize the damage done to their brand.” Josh Richman,

Greenwashing on Trial, MotherJones.com (Feb. 23, 2001)

<http://www.motherjones.com/web_exclusives/features/news

/greenwash.html> (quoting Joshua Karliner, Executive

Director of Corpwatch). After the California Supreme

Court’s decision was announced, an editorial that was widely

circulated on anti-globalization websites declared that “[t]he

ruling was a victory for the public interest and groups taking

on powerful corporations and their image-makers.” Jeff

Milchen, Bill of Rights Freedoms Belong to People, Not

Corporations, Pac. News Serv. (May 14, 2002) <http://

www.news.pacificnews.org/news/view_article.html?article i

d=300>. The Kasky decision, in other words, benefits anti-

14

globalization groups’ public relations campaigns, not

consumers.

The California Supreme Court essentially acknow-

ledged as much. The Court conceded “that application of [its

ruling] may make Nike more cautious, and cause it to make

greater efforts to verify the truth of its statements.” Pet. App.

22a. Making speakers more “cautious,” as this Court has

explained, is simply a euphemism for chilling speech. Gertz

v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). But the

California Supreme Court, Respondent, and Respondent's

supporters apparently believe that businesses’ public

statements — but not their critics’ — may be subjected to strict

liability rules because businesses are motivated in part by

pecuniary interests and they supposedly have a superior

ability to substantiate their press releases. Pet. App. 27a;

Opp. to Pet. for Cert. 25.

The First Amendment does not permit a state to

disfavor corporate speech in this manner. Companies that

comment on public issues outside of direct product

advertisements enjoy the First Amendment’s “full panoply of

protections,” regardless of their motivations for doing so.

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68 (1983);

see also Consolidated Edison Co. v. Public Serv. Comm n,

447 U.S. 530 (1980) (power company has unrestricted First

Amendment right to comment on debate over nuclear

power). Indeed, in holding in Bellorti that corporations have

an unfettered right to speak out on proposed legislation that

would affect their finances, this Court made it plain that even

when such speech is merely reprinted in an editorial

advertisement, the public “may consider . . . the credibility of

the advocate. But if there be any danger that the people

cannot evaluate the information and arguments advanced by

[a business], it is a danger contemplated by the Framers of

the First Amendment.” Jd. at 791-92. They believed that a

commercial motivation — such as a “creditor{]” or

15

“manufacturing” interest — was perfectly legitimate, and that

liberty and sound social policy would best be achieved by

allowing a free press and an inquisitive public to weigh the

unrestrained expression of ail interested parties. Federalist

No. 10 (Madison), at 58-60 (J. Cooke ed. 1961); see also

Gordon S. Wood, The Radicalism of the American Rev-

olution 336-37 (1992) (Framers encouraged open pursuit of

all interests, including commercial interests).

The First Amendment’s mandate that the media and

the public, not the courts, evaluate the credibility of speakers

in public debates should not be watered down during this

period of heightened skepticism of corporate practices.

When businesses speak out on public issues, the media are

just as capable of evaluating and investigating their speech as

anyone else’s. And when the media run stories including

factual assertions from businesses, the public’s increased

wariness of such assertions hardly provides reason to punish

businesses for any inadvertent inaccuracies or unintended

implications. The public is quite accustomed to dealing with

potentially misleading speech from interest groups and

politicians, whose motivations for speaking are often just as

selfish as businesses’, and whose reputations for unvarnished

veracity are often just as suspect.

Indeed, if anything, it is now more important than

ever that courts refrain from discouraging business

representatives from speaking out on issues regarding their

corporate cultures. News coverage and investigative jour-

nalism are frequently driven by clashes of competing points

of view. Thus, when the media are unable to obtain

corporate responses to allegations of misconduct, they may

shelve such stories for fear of publishing something that is

too one-sided, or simply for lack of an apparent controversy.

The more often, in other words, the media get a “no

comment” from business, the less often they may run stories

on business-related issues. In this respect, an affirmance here

16

would have exactly the opposite effect than the California

Supreme Court and its supporters intend. The inner

workings of corporations would become less transparent, not

more So.

This Court has confronted a situation presenting a

similar danger before. The litigation that culminated in New

York Times Co. v. Sullivan, 376 U.S. 254 (1964) — which,

like part of this case, was based on an “editorial

advertisement” purchased in a newspaper — was “part of a

concerted strategy” designed to chill press coverage of one

side of a pressing public issue: the desegregationists’ side of

the civil rights movement. Fred D. Gray, The Sullivan Case:

A Direct Product of the Civil Rights Movement, 42 Case W.

Res. L. Rev. 1223, 1226 (1992). And like this case, the

decision under review in Sullivan came from a region on the

leading edge of one side of the debate. A state supreme court

attempted to use one state’s law effectively to regulate media

coverage throughout the nation. See Anthony Lewis, New

York Times v. Sullivan Reconsidered, 83 Colum. L. Rev.

603, 605 (1983).

One generation ago, this Court held in Sullivan that

imposing strict liability in “one of the major public issues of

our time” for speech containing falsehoods would undercut

the First Amendment’s basic purpose of assuring “uninhib-

ited, robust, and wide-open” debate on such issues. 376 U.S.

at 270-71. It is imperative that this Court refuse to allow the

law of one state single-handedly to dry up information on one

side of another major public debate, this time over corporate

globalization.

17

Il. EXPANSION OF THE COMMERCIAL SPEECH

DOCT RINE BEYOND STATEMENTS THAT DO

NO MORE THAN PROPOSE A COMMERCIAL

TRANSACTION” IS UNNECESSARY BECAUSE

MEDIA COVERAGE ADEQUATELY INFORMS

CONSUMERS REGARDING COMPANIES’ CON-

TROVERSIAL BUSINESS PRACTICES.

The California Supreme Court’s expansion of the

commercial speech doctrine not only threatens to hamper

media coverage of public issues regarding corporate

America, but it does so for no good reason. One of this

Court’s principal justifications for curtailing the level of

protection afforded to commercial speech is that such speech

typically affords consumers little time or ability to scrutinize

its truthfulness. While that loric may make sense in the

realm of product labels and advertisements, it lacks any force

whatsoever when the corporate speech at issue is directed

toward the media in the context of an extended public debate.

Indeed, the very press coverage of Nike that forms the

backdrop of this case demonstrates that the media serve as an

effective watchdog over corporate press releases and more

than adequately counterbalance companies’ assertions

regarding controversial business operations. Accordingly,

this Court should make it clear here that the universe of

“commercial speech” cannot be expanded beyond com-

panies’ statements that do “no more than propose a

commercial transaction.” Virginia State Bd. of Pharmacy v.

as Citizens Consumer Council, Inc., 425 U.S. 748, 762

A. Corporate Communication with the Media, Unlike

Traditional Product Advertising, Permits Public

Scrutiny and Counterspeech.

_ This Court has explained that “[i]n assessing the

potential for overreaching and undue influence” of speech,

‘the mode of communication makes all the difference.”

18

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 475 (1988).

Hence, one of the main reasons that this Court affords

commercial speech less First Amendment protection than

other speech is that the public ofter. “lacks sophistication” or

access to the information necessary to evaluate a

manufacturer’s claim. Jn re R.MJ, 455 U.S. 191, 200

(1982) (quoting Bates v. State Bar of Ariz., 433 U.S. 350, 383

(1977)). When a company asserts that its product contains a

certain ingredient, for example, that claim may not provide

any realistic opportunity for factual or ideological debate.

See Rubin v. Coors Brewing Co., 514 U.S. 476, 496 (1995)

(Stevens, J., concurring). Consumers, therefore, “may

respond to [false advertisements] before there is time for

more speech and considered reflection to minimize the risks

of being misled.” Jd. Even within the realm of commercial

speech, this Court has held that statements that are “more

conducive to reflection and the exercise of choice on the part

of the consumer” receive incrementally more First Amend-

ment protection. Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 642 (1985) (print advertisements more

protected than personal solicitations); Ohralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 457-58 (1978) (same).

A corollary of this Court’s inability-to-reflect

rationale is that false or misleading speech in the “com-

mercial” context may be regulated because it “lacks the value

that sometimes inheres in false or misleading political

speech.” Rubin, 514 U.S. at 496 (Stevens, J., concurring).

The usual rule is that “[e]ven a false statement may be deem-

ed to make a valuable contribution to public debate, since it

brings about ‘the clearer perception and livelier impression of

truth, produced by its collision with error.’ ” Sullivan, 376

U.S. 279 n.19 (quoting John Stuart Mill, On Liberty 15

(Blackwell ed. 1947)); see also Whitney v. California, 274

U.S. 357, 377 (1927) (Brandeis, J., concurring) (“the remedy

to be applied” to false political speech “is more speech, not

enforced silence”). But in the sphere of product advertising,

19

the predominant goal is sales, not knowledge, and the time

frame is short, not long. Thus, this Court has held that the

regulation of misleading commercial speech prevents

“uninformed acquiescence,” Edenfield v. Fane, 507 U.S. 761,

774-75 (1993), because “the consumer is not expected to

have the competence or access to information needed to

question the advertiser’s claim.” Kathleen M. Sullivan,

Cheap Spirits, Cigarettes, and Free Speech: The Implications

of 44 Liquormart, 1996 Sup. Ct. Rev. 123, 156 (1996).

The California Supreme Court’s extension of the

commercial speech doctrine in this case rips the doctrine

completely away from this underpinning. The decision holds

that a business’s speech is “commercial” even if it pertains

merely to a company’s social “image,” Pet. App. 19a-20a,

rather than to any actual product, and even if it pertains to an

extended media debate, rather than an ephemeral purchasing

decision.

This extension is wholly unjustified. Whatever force

the inability-to-reflect rationale has when applied to

consumers’ evaluation of the tangible attributes of a product

disappears in the context of debates over good corporate

citizenship. By holding that consumers require “protection”

from potentially misleading information pertaining to a

company’s social image, the California Supreme Court has

applied a version of the “paternalistic approach” to

commercial speech regulation that this Court long has

rejected. Virginia State Bd. of Pharmacy, 425 U.S. at 770;

accord 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,

496-98 (1996) (plurality opinion); id at 520-23 (Thomas, J.

concurring in the judgment). It is paternalistic to assume that

consumers lack the ability or sophistication to decide for

themselves whether a company’s image reflects reality, or

whether that image should influence their purchasing

decision at all.

20

Furthermore, the California Supreme Court’s decision

obfuscates the press’s role in the marketplace of ideas. This

Court has long recognized that the press is “a mighty catalyst

in . . . informing the citizenry of public events and

occurrences.” Estes v. Texas, 381 U.S. 532, 539 (1965).

This is because the media do more than simply provide an

empty vessel for third parties to disseminate their speech.

See Branzburg v. Hayes, 408 U.S. 665, 729 (Stewart, J.,

dissenting). Rather, it is a core function of the press to

consider the source of statements that it receives, as well as

to investigate those statements’ veracity and to set them

beside the counterspeech of other interested parties. Thus,

when a news organization receives a company’s press release

regarding its business operations, the organization can bring

independent judgment to bear on the accuracy of the release.

If a company’s assertions are not credible, the media can, and

sometimes do, decline to run any story on the subject. When

media entities publish controversial claims by businesses

(either because the claims are open to debate or because a

publisher feels that the subject of a report is entitled to

present its side of the story), they generally contrast those

claims with independent analysis or opponents

counterclaims. Cf Gertz, 418 U.S. at 344 (press provides

means of “counteract[ing] false statements” regarding public

figures). Unlike the typical advertising scenario, in short,

potentially misleading corporate press releases in the course

of a public debate are tempered by their clash with competing

speech.

Even when the media reprint a business’s speech in

an op-ed or an editorial advertisement, that speech is very

likely to be responsive to, or challenged by, other articles in

the same publication. In contrast to advertisements that

directly propose commercial transactions, companies usually

do not take the trouble to purchase space to discuss their

business operations unless those operations have become the

subject of considerable public scrutiny. Compare, e.g.,

21

a

James Gleick, Tangled Up in Spam, N.Y. Times Magazine,

Feb. 9, 2003, at 42 with Microsoft Corp., Spiking the

Spammers, N.Y. Times, Feb. 13, 2003, at A33 (editorial

advertisement); see also Sullivan, 376 U.S. at 266 (editorial

advertisements are “an important outlet for the promulgation

of information and ideas” by non-publishers). Certainly that

was the case with Nike. Consequently, as with press

releases, the media typically arm the public with the

resources for full reflection on business practices discussed in

op-eds and editorial advertisements.

Not only is the press effective in ventilating corporate

speech and in unmasking misleading claims regarding issues

of public concern, but it is the preferred means of doing so.

“[S]elf-government suffers when those in power suppress

competing views on public issues ‘from diverse and

antagonistic sources.’ ” Bellotti, 435 U.S. at 777 n.12 (quot-

ing Associated Press, 326 U.S. at 20). Accordingly, “[t]he

very purpose of the First Amendment is to foreclose [the

government] from assuming guardianship of the public

mind” through unnecessarily regulating the content of public

debate. Riley v. National Federation of the Blind, 487 U.S.

781, 791 (1988) (quoting Thomas v. Collins, 323 U.S. 516,

545 (1945) (Jackson, J. concurring)). Whenever the press

presents the public with adequate information to assess the

accuracy of a speaker’s claim, “the people in our democracy

are entrusted with the responsibility for judging and

evaluating the relative merits of the conflicting arguments.”

Bellotti, 435 U.S. at 791 (emphasis added).

The California Supreme Court’s decision here

pretermits this entire process of ventilation and individual

assessment. It holds that the moment a company sends a

press release or letter to the media that offers a potentially

misleading portrayal of the company’s business operations,

the company may be sued and held strictly liable. It does not

matter whether the media ever print the company’s

22

statements or, if they do, whether they place those statements

in context or beside assertions refuting them. This holding

impermissibly substitutes state regulation of the content of

public debate for media scrutiny and counterspeech. What is

more, the ruling handicaps the business side of all public

debates regarding business issues, by “licens[ing] one side of

a debate to fight freestyle, while requiring the other side to

follow Marquis of Queensberry rules.” R.A.V. v. City of St.

Paul, 505 U.S. 377, 392 (1992). Especially in these

circumstances, “the First Amendment is plainly offended.”

Bellotti, 435 U.S. at 785-86.

B. The Media Coverage of Nike at the Center of This

Case Confirms That Subjecting Its Speech to

Consumer Protection Laws Is Unnecessary and

Inappropriate.

The record and the press coverage related to this case

underscore the imprudence of the California Supreme

Court’s decision. Although the purported linchpin of

Respondent’s complaint is that Nike has deceived the public

by making misleading statements to the press regarding its

business operations, Respondent himself acknowledges that

“(t]he media have continued to expose Nike’s actual

practices.” First Amended Complaint (Petitioners’ Lodging)

q4 19; see also id. Exs. F-L (collecting some such articles).

Indeed, a review of the contemporaneous press coverage of

Nike during the controversy in the mid-1990’s over its

overseas manufacturing practices reveals that every single

one of Nike’s allegedly misleading statements either was

never reported or was challenged by counterspeech in the

same media outlet. This is what one would expect regarding

an issue of intense public concern, and it leaves one at a loss

to comprehend why state regulation is necessary or

appropriate in this area.

_

23

Respondent complains about four statements that

Nike made in press releases. The first one was a response to

mounting protests in 1996 that Nike, as summarized in a

column in The New York Times, “benefit{s] directly and

indirectly from the systematic oppression of the Indonesian

people” and that “Nike executives . . . are not bothered by the

cries of the oppressed. It suits them. Each cry is a signal that

their investment is paying off.” Bob Herbert, Nike's Bad

Neighborhood, N.Y. Times, June 14, 1996, at A29. Nike

countered in its press release that it treated its overseas

workers well and that the average line-workers’ wage in

Asian facilities was “double the government-mandated

minimum.” Compl. 9 46. Nike’s release did not generate

any immediate press reports. When the media eventua!ly ran

stories repeating Nike’s double-the-minimum-wage claim,

they generally stated in the same articles that the claim was

potentially misleading. Business Week, for instance, reported

that “Nike Chief Executive Philip H. Knight defends the

Indonesian operations, saying that sneaker assemblers in

Indonesia earn an average of double the minimum wage. But

that’s because they have no choice but to do overtime.”

Elisabeth Malkin, Pangs of Conscience: Sweatshops Haunt

U.S. Consumers, Business Week, July 29, 1996, at 46. The

San Francisco Chronicle, the leading newspaper in

Respondent’s hometown, further noted in an article printing

Nike’s claim that developing countries “deliberately set

[minimum wages] below the subsistence level” and that a

human rights group was asserting that Nike pressured such

countries into denying overtime and keeping worker pay

artificially low. Stephanie Salter, Decent Wages for Nike

Workers? Just Do It, S.F. Chron., June 27, 1996, at A19.

Respondent also complains about Nike’s statement in

the same press release that it provided “free meals” to its

employees. Compl. § 52. But when the San Francisco

Chronicle investigated this claim, it reported that despite

such promises, a factory in Indonesia “started deducting 25

24

cents-a-day from workers’ daily wages as a charge for the

cost of lunch.” Julia Angwin, The Tired Souls Behind Nike

Soles: Indonesian Worker Tells of Suffering, S... Chron.,

July 26, 1996, at B3. When a representative business

periodical repeated Nike’s assertion, it also noted that other

groups, “on the other hand, are concerned about persistent

reports of exploitative conditions.” Andy Zipser, Nike:

Shareholders Will Be Sweating It Out, Too, Barron’s, Sept.

16, 1996, at 10.

Coverage of Nike’s two other allegedly misleading

assertions in press releases followed a similar pattern of point

and counterpoint. Nike’s representation that its “expatriates

ensure safe working conditions and prevent illegal working

conditions, Compl. 4 28, was quickly challenged in a

nationally televised segment on CBS’s news magazine 48

Hours. The story recounted “a fair number of incidents of

physical abuse of workers” in violation of local regulations at

Nike’s Asian factories and suggested that Nike exercised

very little control over supervisors of those factories. 48

Hours: Just Doing It (CBS television broadcast, Oct. 17,

1996), transcript available at <http://www.saigon.com/

~nike/48hrfmt.htm>. A Time magazine article added that

Nike had a “credibility problem” on this issue because even

if factory owners truly abide by “the Indonesian

government’s labor standards[, that] is saying very little”

because those standards condone such dubious practices as

child labor. Nancy Gibbs, Cause Celeb: Two High-Profile

Endorsers Are Props in a Worldwide Debate Over

Sweatshops and the Use of Child Labor, Time, June 17,

1996.

Nike’s final contested press release — in which it

asserted it guaranteed “a living wage for all workers,”

Compl. § 62 — was issued about one year later, in response to

renewed allegations against the company. In the fall of 1997,

leading newspapers reported that a coalition of women’s

25

groups was charging that Nike’s Asian female employees

“often suffer from inadequate wages, corporal punishment,

forced overtime and/or sexual harassment.” Steven

Greenhouse, Nike Supports Women In Its Ads, But Not Its

Factories, Groups Say, N.Y. Times, Oct. 26, 1997, at A30:

see also Dottie Enrico, Women's Groups Pressure Nike on

Labor Practices, USA Today, Oct. 27, 1997, at B2. (By this

time, several Internet sites also were collecting and posting

negative press coverage of Nike in order to combat, as one

such website entitled “Boycott Nike” put it, Nike's

“progressive image.” Boycott Nike (visited Feb. 12, 2003)

<http://www.saigon.com/~nike/nike.htmI>.) After Nike

issued its responsive press release, a typical media story

repeating Nike’s “living wage” claim also included an

assertion from an interest group that “Nike’s workers in

Vietnam could ‘barely afford three meals a day let alone

transportation, r-nt, clothing, health care, and much more.””

Nike's Treatment of Women Overseas Assailed; Spokesman

Defends Pay, Dallas Morning News, Nov. 2, 1997, at A44.

An ESPN television documentary that later aired orrthe issue

also directly challenged Nike’s claim. See Compl. § 64

(describing Outside the Lines: Made in Vietnam: The

American Sneaker Controversy, ESPN television broadcast,

April 2 & 11, 1998)).

Nike’s letters to the editor and editorial advertise-

ment that Respondent complains of also met with vigorous

concurrent counterspeech. Nike’s letter to the editor of The

New York Times, in which it claimed that it provided

employees “free meals, housing and health care,” Compl. §

52, appeared amidst several scathing editorials in that

newspaper — as well as in one of Respondent's local papers —

concerning Nike’s overseas business practices. See Bob

Herbert, Nike 's Pyramid Scheme, N.Y. Times, June 10, 1996,

at Al7; Bob Herbert, Nike 's Bad Neighborhood, N.Y. Times,

June 14, 1996, at A29; Bob Herbert, From Sweatshops to

Aerobics, N.Y. Times, June 24, 1996, at Al5: Bob Herbert.

26

Trampled Dreams, July 12, 1996, at A27; Stephanie Salter,

Decent Wages for Nike Workers? Just Do It, S.F. Examiner,

June 27, 1996, at Al9. Nike’s editorial advertisement

asserting that it was “doing a good job” and “operating

morally,” Compl. § 58, appeared during this same time

period and on the same day (June 24, 1997) as one of Mr.

Herbert’s columns. It was followed later by another editorial

in the San Francisco Chronicle claiming that “Nike’s

hypocrisy knows no bounds.” Tim Keown, Hypocrisy is

Nike's Sole Purpose, S.F. Chron., Dec. 14, 1997, at E1.

In light of all of this contemporaneous and -asily

accessible press coverage, it is difficult to understand how

consumers could have been misled by any inaccuracies in

Nike’s speech. At the very least, any person who wished to

factor Nike’s labor practices into her purchasing decisions

would have been alerted that serious allegations had been

leveled against Nike and that Nike’s credibility was being

questioned. If consumers believed Nike’s statements, it was

not because they lacked the ability to reflect on the ongoing

controversy or because they lacked access to “more speech

challenging Nike’s assertions. See Rubin, 514 U.S. at 496

(Stevens, J., concurring); Ohralik, 436 U.S. at 457-58. Nor

was it because any party’s false statements did not “make a

valuable contribution to the debate” by triggering additional

investigation and corrective speech. Sullivan, 376 U.S. at

279 n.19. In the classic mode of public discourse on a

controversial issue, the media ventilated competing claims

and provided the people with information that allowed them

to draw their own conclusions. The California Supreme

Court’s decision rendering such press coverage inadequate

tramples basic First Amendment principles.

27

C. This Court Should Make Clear That Speech That

Does More Than Propose a Commercial Trans-

action Cannot Be Treated as Commercial Speech.

The California Supreme Court’s decision illustrates

the damage that can occur when this Court’s rules governing

free expression are less than plain. This Court has long

observed that statutory schemes that regulate speech are

bound to chill valuable discourse if they contain opaque

standards that keep people guessing as to whether certain

statements fall within their ambit. See, eg, NAACP vy.

Button, 371 U.S. 415, 432-33 (1963) (“precision must be the

touchstone” in regulating First Amendment freedoms). The

same is true of this Court’s decisions in this realm.

Whenever possible, this Court should “clearly inform” lower

courts and the public whether and how certain categories of

speech may be regulated. Keyishian v. Board of Regents,

385 U.S. 589, 604 (1967). And when initial explanations

from this Court fail to provide adequate guidance, “the Court

should not rest on [its] first attempt at an explanation for

what sound instinct counsels. It should not forego re-

examination to achieve clarity of thought, because confused

and inadequate analysis is too apt gradually to lead to a

course of decisions that diverges from the true ends to be

pursued.” Sherman v. United States, 356 U.S. 369, 379

(1958) (Frankfurter, J., concurring).

Such reexamination is in order here, for this Court’s

jurisprudence defining what expression constitutes com-

mercial speech does not currently provide the unambiguous

direction that the First Amendment demands. In the seminal

Virginia State Bd. of Pharmacy decision, this Court defined

commercial speech as that which “does no more than propose

a commercial transaction.” 425 U.S. at 762 (quotation

omitted). But this Court has since muddied the waters by

suggesting that alternative tests might sometimes be relevant.

See United Foods, 533 U.S. at 409 (commercial speech is

28

“usually defined” by the “no more than” test); City of

Cincinnati v. Discovery Network, 507 U.S. 410, 422 (1993)

(noting that this Court termed “a somewhat larger category”

of speech as commercial in Central Hudson decision);

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n,

447 U.S. 557, 561 (1980) (“expression related solely to the

economic interests of the speaker and its audience” is

commercial); Bolger, 463 U.S. at 66-67 (looking to a still

different “combination” of factors). Various lower courts

now employ inconsistent standards in determining which

speech is commercial. See Br. Amicus Curiae of Chamber of

Commerce of U.S. in Support of Pet. for Cert. at 5-8.

The media are especially affected by this uncertainty.

Reporters need to operate in a legal landscape in which

sources, including business leaders, are assured that innocent

misstatements or unintentionally misleading remarks will not

subject their companies to lawsuits. Even when business

personnel are not caught off guard by a request for an

interview, such persons need to be able to impart information

to the media with a clear understanding of legal rules

governing their statements.

Accordingly, this Court should hold here

unequivocally that only speech that does no more than

propose a commercial transaction — that is, speech that does

no more than promote tangible qualities of a product or

service in a traditional advertising format — may be treated as

commercial speech and subjected to strict liability rules such

as the California laws at issue here. Corporate statements

that are directed to the press or the public outside of a

traditional advertising format are best characterized as

imparting a business point of view on an issue of public

concern, even if those statements include references to the

company’s products or services. See Riley, 487 U.S. at 796

(1988) (commercial speech that is “inextricably intertwined

with otherwise fully protected speech” must be treated the

29

same as other public discourse). The ordinary checks on

public statements will adequately correct any deceptive

assertions in such statements.

Even when companies attempt to raise or defend their

corporate social image in advertising-type arenas, as Nike did

here in its editorial advertisements, such companies are not

exhorting the public to buy their products in a way that

triggers the need to punish them for any misleading messages

they may convey. Governments may punish commercial

speech more readily than non-commercial speech only in

order to “protect[] consumers,” Ohralik, 436 U.S. at 460, or

to “prevent[] commercial harms.” Discovery */2twork, 507

U.S. at 426. If these objectives are to have any meaning (and

any limit) in our modern society, they must pertain only to

tangible aspects of products and services — whether shoes are

actually leather or whether they actually are on sale for $75.

Although some consumers may be influenced in their

purchasing decisions by a company’s social image or its

labor or environmental practices, misleading statements

regarding those practices do not pertain to the actual

performance or quality of products, or to the terms and

conditions upon which they are available.

Put another way, traditional advertising or solicitation

is a “business transaction in which speech is an essential but

subordinate component,” Ohralik, 436 U.S. at 457 (emphasis

added), but a company’s speech regarding its corporate

culture, such as Nike’s speech here, is a public statement in

which business is an essential but subordinate component.

When a company’s public statements are designed in part to

participate in such public debates, this Court should refuse to

allow a state to substitute a strict-liability consumer-

protection regime for the First Amendment's preferred

process of investigation, counterspeech and reflection.

30

CONCLUSION

For the foregoing reasons, the decision of the

California Supreme Court should be reversed.

Respect. ‘y submitted,

BRUCE E.H. JOHNSON*

P. CAMERON DEVORE

Eric M. STAHL

JEFFREY L. FISHER

DAVIS WRIGHT TREMAINE LLP

2600 Century Square

1501 Fourth Avenue

Seattle, Washington 98101

(206) 622-3150

KELLI L. SAGER

DAVIS WRIGHT TREMAINE LLP

Suite 2400

865 South Figueroa Street

Los Angeles, CA 90017-2566

(213) 633-6800

Counsel for Amici Curiae

[Of Counsel listing in

Appendix B]

* Counsel of Record

~~ ———

la

APPENDIX A

Descriptions of Amici

ABC, Inc., alone and through its subsidiaries, owns

ABC News, the ABC Radio Network, abcnews.com, and

local broadcast television and radio stations that regularly

gather and report news to the public. ABC produces, among

other programs, the news programs World News Tonight with

Peter Jennings, 20/20 and Nightline.

American _ Booksellers __ Foundation _for _ Free

Expression (ABFFE) is the bookseller’s voice in the fight

against censorship. Founded by the American Booksellers

Association in 1990, ABFFE’s mission is to promote and

protect the free exchange of ideas, particularly those

contained in books. It disseminates information about

dangers to free expression on its website, www.abffe.com.

ABFFE also publishes a monthly newsletter, which it

distributes to subscribers, and makes other publications

available to the public throug? its on-line store. ABFFE has

hundreds of bookseller members who are located from coast

to coast.

American Business Media, founded in 1906, is the

business-to-business industry association for global infor-

mation providers that represent magazines, websites, trade

shows, conferences, newsletters, and other media. These

member companies reach an audience of more than 88.9

million professionals and generate more than $239 billion in

industry revenues.

The American Society of Newspaper Editors (ASNE)

is a professional organization of more than 800 persons who

hold positions as directing editors of daily newspapers in the

United States and Canada. The purposes of the Society

|

OO

include assisting journalists and providing an unfettered and

effective press in the service of the American people.

The Associated Press, founded in 1848, is world’s

oldest and largest newsgathering organization, providing

content to more than 15,000 news outlets. Its multimedia

services are distributed by satellite and the Internet to more

than 120 nations.

The Association of American Publishers, Inc. (AAP)

is the national association in the United States of publishers

of general books, textbooks and educational materials.

AAP’s approximately 300 members include most of the

major commercial book publishers in the United States and

many smaller or non-profit publishers, including university

presses and scholarly associations. AAP members publish

most of the general, educational and religious books and

materials produced in the United States.

Belo Corp. is a media company with a diversified,

market-leading group of television broadcasting, newspaper

publishing, cable news and interactive media operations in

the United States. Belo owns nineteen television stations that

reach 13.9% of U.S. television households, and publishes

four daily newspapers with a combined daily circulation of

approximately 900,000 and a combined Sunday circulation

of almost 1.3 million in the United States. In addition, Belo

Owns or operates six cable news channels. Belo’s Internet

subsidiary, Belo Interactive, Inc., includes thirty-four internet

websites, several interactive alliances and a broad range of

Internet-based products.

Bloomberg L.P., based in New York City, operates

Bloomberg News, which is comprised of 1600 reporters in

eighty-seven bureaus around the world, including two in

California. Bloomberg News publishes more than 4000 news

stories each day, electronically delivering business, financial

and legal news to more than 300,000 business and finance

professionals in real-time through the Bloomberg Profes-

sional System, a proprietary desktop system. Bloomberg

News also operates as a wire service, distributing business

news to more than 375 newspapers in twenty-five countries.

Bloomberg News operates eleven 24-hour cable and satellite

television news channels broadcasting worldwide in six

different languages; WBBR, a 24-hour business news radio

station; Bloomberg Press, a book publisher responsible for

more than 100 book titles a year; Bloomberg Magazines,

which publishes twelve different magazines each month; and

Bloomberg.Com, which is read by the investing public more

than 300 million times each month.

CBS _ Broadcasting Inc. produces and broadcasts

news, public affairs, and entertainment programming. CBS

News produces morning, evening, and weekend news

programming, as well as news and public affair magazine

shows, such as 60 Minutes and 48 Hours. CBS owns and

operates broadcast television stations nationwide and,

through a related company, Infinity Broadcasting Corp-

oration, owns and operates radio stations throughout the

country.

Cable News Network LP, LLLP, a division of Turner

Broadcasting System, Inc., an AOL Time Warner Company,

is one the world’s most respected and trusted sources for

news and information. Its reach extends to fifteen cable and

satellite television networks; twelve Internet. websites,

including CNN.com; three private place-based networks; two

radio networks; and CNN Newsource, the world’s most

extensively syndicated news service. CNN’s combined

branded networks and services are available to more than one

billion people in more than 212 countries and territories.

The California First Amendment Coalition, estab-

lished in 1988, is a California nonprofit public benefit corp-

oration and a 501(c)(3) charitable organization whose

purpose is to- “promote and defend the people's night to

know.” Its board of directors includes representatives of the

California Newspaper Publishers Association, California

Society of Newspaper Editors, Radio-Television News

Directors Association, Society of Professional Journalists,

and Associated Press News Executives Council, as well as

public members with experience in government agencies,

citizen interest groups and higher education.

California Newspaper Publishers Association is a

trade association representing about 500 daily and weekly

newspapers. The CNPA, for well over a century, has stood

in defence of the rights guaranteed by the First Amendment.

The Copley Press, Inc. publishes nine daily news-

papers, including she San Diego Union-Tribune, that

regularly cover national and international news and operates

an international news service.

Daily News, L.P. publishes the New York Daily

News, which is one of the largest newspapers in the United

States and has a daily circulation of more than 700,000,

primarily in the New York City metropolitan area. The Daily

News provides daily coverage of news events throughout the

United States and the world. Its stories are also available on

the Internet through its website, www.nydailynews.com.

Dow Jones & Company, Inc. is the publisher of, inter

alia, The Wall Street Journal, a national newspaper pub-

lished each business day; WSJ.com, a news site on the world

wide web with over 650,000 paying subscribers; the Dow

Jones Newswires, real-time, 24-hour newswires distributed

electronically to subscribers; Barron's, a weekly newspaper

of business and finance; and, through its Ottaway News-

paper, Inc. subsidiary, more than twenty daily and weekly

newspapers.

Sa

Forbes, Inc. is the publisher of Forbes, the nation’s

leading business magazine and its international edition,

Forbes Global, which together reach a worldwide audience

of nearly five million readers. The company also publishes

Forbes FYI, the irreverent lifestyle supplement. Other

company divisions include: Forbes.com, the company’s

Internet business; Forbes Management Conference Group;

Forbes Custom Communications partners; and American

Heritage, publisher of American Heritage magazine and two

quarterlies, American Legacy and American Heritage of

Invention & Technology.

Fox Entertainment Group, Inc., through its sub-

sidiaries, owns and operates the Fox News Channel, the Fox

Broadcasting Company television network, and thirty-five

local broadcast television stations that gather, produce and

report news to the public.

Freedom Communications, Inc., headquartered in

Irvine, California, is a diversified media company of

newspapers, television broadcast stations and Internet-based

businesses.

Freedom to Read Foundation (“FTRF’) is an

organization established in 1969 by the American Library

Association to promote and defend First Amendment rights,

to support the rights of libraries to include in their collections

and make available to the public any work they may legally

acquire, and to help shape legal precedent for the freedom to

read on behalf of all citizens.

Gannett Company, Inc. is an international news and

information company that publishes ninety-four daily

newspapers in the United States with a combined daily paid

circulation of 7.6 million, including USA TODAY, which

has a circulation of 2.3 million. Gannett publishes a variety

of non-daily publications, including USA WEEKEND, a

6a

weekly newspaper magazine with a circulation of 23.6

million. The company also operates more than one hundred

web sites and a national news service. Gannett’s twenty-two

television stations cover 17.7 percent of the United States.

The Hearst Corporation is a diversified, privately held

media company that publishes newspapers, consumer maga-

zines and business publications. Hearst also owns a leading

features syndicate, has interests in several cable television

networks, produces movies and other programming for tele-

vision and is the majority owner of Hearst-Argyle Television,

Inc., a publicly held company that owns and operates numer-

ous television broadcast stations.

Magazine Publishers of America, Inc. is a national

trade association including in its present membership more

than 240 domestic magazine publishers who publish over

1,400 magazines sold at newsstands and by subscription.

MPA members provide broad coverage of domestic and

international news in weekly and biweekly publications, and

publish weekly, biweekly and monthly publications covering

consumer affairs, law, literature, religion, political affairs,

science, sports, agriculture, industry and many other

interests, avocations and pastimes of the American people.

MPA has a long and distinguished record of activity in

defense of the First Amendment.

The McClatchy Company publishes eleven daily

newspapers and thirteen non-daily newspapers in California

and other states including The Sacramento Bee, the Star

Tribune in Minneapolis, Minnesota, The News & Observer in

Raleigh, North Carolina and The Fresno Bee. The news-

papers have a combined average circulation of 1.4 million

daily and 1.9 million on Sunday.

National Association of Broadcasters (NAB), organ-

ized in 1922, is a nonprofit incorporated trade organization

————— wT °° °Q gO EE

7a

that serves and represents radio and television stations and

networks. NAB’s members cover, produce, and broadcast

the news and other programming to the American people.

NAB seeks to preserve and enhance its members’ ability to

freely disseminate information concerning commercial

activities and the activities of government.

National Broadcasting Company, Inc. is a diversified

media company that produces and distributes news,

entertainment and sports programming via broadcast tele-

vision, cable television, the Internet and other distribution

channels.

National Public Radio, Inc. (NPR) is a non-profit

organization incorporated in the District of Columbia. It is a

membership organization composed of more than 680 public

radio stations located throughout the United States and serves

a growing broadcast audience of over 19 million Americans

weekly. NPR gathers and reports the news through its award

winning programs, including Morning Edition, All Things

Considered, and Talk of the Nation. It also distributes its

broadcast programming on-line, adding additional news

features, and distributes its broadcasts worldwide through

satellite and cable distribution, and to U.S. military

installations via the American Forces Network.

The New York Times Company publishes The New

York Times, a national newspaper distributed throughout

New York State and the world. Its weekday circulation is the

third highest in the country at approximately 1.1 million, and

its Sunday circulation is the largest at approximately 1.7

million. The Company also publishes sixteen other news-

papers, including The Boston Globe, and owns and operates

eight television stations and two radio stations.

Newspaper Association of America is a nonprofit organ-

ization representing more than 2,000 newspapers in the

8a

United States and Canada. NAA members account for nearly

90% of the daily circulation in the United States and a wide

range of non-daily U.S. newspapers.

Newsweek, Inc., a subsidiary of The Washington Post

Company, publishes the weekly news magazines Newsweek

and Newsweek International, which are distributed nationally

and internationally, and Arthur Frommer's Budget Travel

magazine, which is distributed nationally.

PR_ Newswire Association LLC, www.prnewswire.com,

a subsidiary of United Business Media plc, provides elec-

tronic distribution, targeting and measurement services on

behalf of some 40,000 customers worldwide who seek to

reach the news media, the investment -ommunity and the

general public with their up-to-the-minute, full-text news

developments. [Established in 1954, PR Newswire has

offices in fourteen countries and routinely sends its

customers’ news to outlets in 135 countries in twenty-seven

languages. Utilizing the latest in communications tech-

nology, PR Newswire content is considered a mainstay

among news reporters and investors as well as increasing

numbers of private individuals.

Radio-Television News Directors Association (RTNDA)

is the world’s largest professional organization devoted

exclusively to electronic journalism. RTNDA represents

local and network news executives in broadcasting, cable and

other electronic media in more than thirty countries.

Reed Elsevier Inc. is a prominent publisher of infor-

mation products and services for the business, professional

and academic communities, including scientific journals,

legal, educational, medical and business information, ref-

rence books and textbooks, and business magazines.

9a

Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of reporters and editors

that works to defend First Amendment rights and freedom of

information interests of the news media. The Reporters

Committee has provided representation, guidance, and re-

search in First Amendment litigation since 1970.

The Seattle Times Company publishes four newspapers

in the State of Washington: The Seattle Times, Washington's

most widely circulated daily newspaper; the Yakima Herald-

Republic, the Walla Walla Union Bulletin; and The Issaquah

Press. It also publishes four newspapers in Maine: the

Portland Press Herald/Maine Sunday Telegram, Maine's

largest daily newspaper; the Kennebec Journal, the central

Maine Morning Sentinel; and the Coastal Journal

Silha Center for the Study of Media Ethics and the Law

is a research center located within the School of Journalism

and Mass Communication at the University of Minnesota.

Its primary mission is to conduct research on, and promote

understanding of, legal and ethical issues affecting the mass

media.

Society of Professional Journalists (SPJ) is dedicated

to improving and protecting journalism. It is the nation’s

largest and most broad-based journalism organization,

dedicated to encouraging the free practice of journalism and

stimulating high standards of ethical behavior. Founded in

1909 as Sigma Delta Chi, SPJ promotes the free flow of

information vital to a well-informed citizenry; works to

inspire and educate the next generation of journalists; and

protects First Amendment guarantees of freedom of speech

and press.

a

10a

Time Inc. is the largest publisher of general interest

magazines in the world, publishing over 135 magazines in

the United States and abroad. Its major titles include 7ime,

Fortune, Sports Illustrated, People, Money, and Entertain-

ment Weekly. Time Inc. is indirectly wholly-owned by AOL

Time Warner Inc.

Tribune Company, through its publishing,

broadcasting, and interactive operations, publishes eleven

market-leading newspapers including the Los Angeles Times,

Chicago Tribune, Baltimore Sun, Newsday, Orlando

Sentinel, and Hartford Courant, owns and operates twenty-

four major market television stations including KCPQ and

KTWB (Seattle), KXTL (Sacramento), KTLA (Los

Angeles), and KSWB (San Diego), and two radio stations;

and operates a network of local and national n ws and

information websites throughout the United States.

U.S. News & World Report, L.P. publishes U.S. News

& World Report, a weekly, national newsmagazine devoted

to investigative journalism, reporting and the analysis of

national and international affairs, politics, business, health,

science, technology, and social trends. Through its rankings

of America’s Best Colleges, America’s Best Graduate

Schools and America’s Best Hospitals as well as its News

You Can Use brand, U.S. News has earned a reputation as the

leading provider of service news and information. U.S. News

is rated the most credible newsweekly by the Pew Research

Center for the People & the Press. U.S. News is available

online at www.usnews.com.

The Washington Post Company publishes the

newspaper The Washington Post, a daily newspaper with a

natiouwide daily circulation of over 782,000 and a Sunday

circulation of over 1.06 million.

lla

APPENDIX B

Of Counsel Listing

Henry S. Hoberman

ABC, INc.

77 West 66th Street

New York, NY 10023-6298

Theresa A. Chmara

AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION

Jenner & Block

601 Thirteenth Street, N.W.

Washington, DC 20005

Gordon T. Hughes, II

AMERICAN BUSINESS MEDIA

675 Third Avenue

New York, NY 10017

Richard M. Schmidt, Jr.

AMERICAN SOCIETY OF NEWSPAPER EDITORS

Cohn & Marks

1920 N Street, NW, Suite 300

Washington, DC 20036-1622

David A. Schulz

THE ASSOCIATED PRESS

Clifford Chance Rogers & Wells LLP

Two Hundred Park Avenue

New York, NY 10166-0153

R. Bruce Rich

Jonathan Bloom

ASSOCIATION OF AMERICAN PUBLISHERS, INC

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

David Starr

BELO Corp.

400 S. Record St.

Dallas, TX 75202-4841

Charles J. Glasser, Jr.

BLOOMBERG L.P.

499 Park Avenue

New York, NY 10022

Susan J. Holliday

Susanna M. Lowy

Anthony M. Bongiorno

CBS BROADCASTING INC.

51 West 52nd Street, 36th Floor

New York, NY 10019

Terry Francke

CALIFORNIA FIRST AMENDMENT COALITION

2701 Cottage Way, Suite 12

Sacramento, CA 95825

Thomas W. Newton

James W. Ewert

CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION

1225 8th Street, Suite 260

Sacramento, CA 95814

Harold W. Fuson. Jr.

THE COPLEY PRESS, INC.

7776 Ivanhoe

La Jolla, CA 92037

Martin D. Krall

Jonathan R. Donnellian

DAILY NEws, L.P.

450 West 33rd Street, 3rd Floor

New York, NY 1000]

Stuart D. Karle

Dow JONES & COMPANY, INC

200 Liberty Street

New York, NY 10281-1099

Lynn B. Oberlander

FORBES, INC.

60 Fifth Avenue, 7th Floor

New York, NY 10011

Theodore A. Russell

FOX ENTERTAINMENT GROUP, INC.

2121 Avenue of the Stars, Suite 700

Los Angeles, CA 90067

Rachel L. Sagan

FREEDOM COMMUNICATIONS, INC.

17666 Fitch

Irvine, CA 92614-6022

Theresa A. Chmara

FREEDOM TO READ FOUNDATION

Jenner & Block

601 Thirteenth Street, N.W.

Washington, DC 20005

,

l4a

Barbara W. Wall

GANNETT COMPANY, INC.

7950 Jones Branch

McLean, VA 22107

Robert J. Hawley

THE HEARST CORPORATION

959 Eighth Avenue, Suite 220

New York, NY 10019-3737

Christopher J. Nolan

MAGAZINE PUBLISHERS OF AMERICA, INC.

919 Third Avenue

New York, NY 10022

Karole Morgan-Prager

Stephen J. Burns

THE MCCLATCHY COMPANY

2100 Q Street

Sacramento, CA 95814

Jack N. Goodman

NATIONAL ASSOCIATION OF BROADCASTERS

1771 N Street N.W.

Washington, DC 20036-2891

James M. Lichtman |

NATIONAL BROADCASTING COMPANY, INC.

330 Bob Hope Drive, Suite C-283

Burbank, CA 91523

Neal A. Jackson

Denise B. Leary

NATIONAL PUBLIC RADIO, INC.

635 Massachusetts Ave., N.W.

Washington, DC 20001

lSa

George Freeman

THE NEW YORK TIMES COMPANY

229 West 43rd Street

New York, NY 10036-3913

René P. Milam

NEWSPAPER ASSOCIATION OF AMERICA

1921 Gallows Road, Suite 600

Vienna, VA 22182-3900

Stephen Fuzesi, Jr.

NEWSWEEK, INC.

251 West 57th Street

New York, NY 10019-1894

Sherri Felt Dratfield

PR NEWSWIRE ASSOCIATION LLC

810 7th Avenue, 35th Floor

New York, NY 10019

Kathleen A. Kirby

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION

Wiley Rein & Fielding LLP

1776 K Street, N.W.

Washington, DC 20006

Henry Z. Horbaczewski

REED ELSEVIER INC.

1150 18th Street N.W., Suite 600

Washington, DC 20036

Lucy A. Dalglish

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

1815 North Fort Myer Drive

Arlington, VA 22209

l6a

Jane E. Kirtley

SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW

AT THE UNIVERSITY OF MINNESOTA

111 Murphy Hall

206 Church Street S.E.

Minneapolis, MN 55455-0418

Bruce W. Sanford

Robert D. Lystad

Bruce D. Brown

SOCIETY OF PROFESSIONAL JOURNALISTS

Baker & Hostetler LLP

1050 Connecticut Avenue N.W., Suite 1100

Washington, DC 20036

Robin Bierstedt

TIME INC.

1271 Avenue of the Americas

New York, NY 10020

Karlene W. Goller

TRIBUNE COMPANY

435 North Michigan Avenue, 6th Floor

Chicago, IL 60611

Martin D. Krall

Peter M. Dwoskin

U.S. NEws & WORLD REPORT, L.P.

450 West 33rd Street, 3rd Floor

New York, NY 10001

Eric N. Lieberman

THE WASHINGTON Post COMPANY

1150 15th Street N.W.

Washington, DC 20071