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Balanced Fare: We Report, You Deride

Sunday, January 12, 2003



Which Side Are They On?

Or, great moments in corporate self-awareness: the NY Times struggles to locate itself on the ideological spectrum while discussing the Nike free speech / commercial speech case which the US Supreme Court recently agreed to hear.

Mu summary of the case: a critic of Nike, perhaps an anti-globo funded in part by U.S. unions, can say anything they want about Nike, limited only by their imagination and laws about slander and libel. Fine, it's a free country with free speech rights.

But suppose Nike responds? Arguably this is commercial speech, intended only to promote their ability to sell footware. Commercial speech is more tightly regulated as to accuracy. Corporations can not present falsehoods in an advertisement. But can they shade or obscure the truth in an "advertorial"? How about in a message placed on their website? What about the CEO, speaking on behalf of (and paid by) his company? What free speech rights might a corporation have?

Interesting. So, the Supreme Court agrees to hear this, and, deep in the story, the Times tells us this:

There is a lively debate within the court over whether to elevate commercial speech to full First Amendment status. With Justice Clarence Thomas the leading exponent of this view, this is one First Amendment issue that does not follow ordinary liberal-conservative lines.

Well, that sounds right. Normally, liberals take an expansive view of free speech rights, as with McCain-Feingold, and view dimly any attempt to regulate corporations. Conservatives, on the other hand, routinely sacrifice free speech rights to other interests and are happy to regulate corporations. In Bizzarro World.

So what might the Times be getting at?

The New York Times Company was one of 32 publishing and broadcasting organizations filing a brief on behalf of Nike, which is represented by Prof. Laurence H. Tribe of Harvard Law School and Walter Dellinger, a former acting solicitor general, among other lawyers.

Oh, my, the "Advertisor Protection Case" of 2003! And since the advertisors run their ads in the Times, their interest is clear. McCain-Feingold applied to television ads - totally different. But I guess in this case the Times figures that, since it supports Nike, it must be a liberal cause. Please.


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