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First Amendment Library:
Thomas C. Goldstein


In May 1993, Gloria Bartnicki, chief negotiator for the Wyoming Valley West School District Teachers' Union, had a cellular phone conversation with Anthony Kane, a teacher at Wyoming Valley West High School about the contentious negotiations over the teachers' new contract. An unknown person intercepted the contents of the cellular phone conversation and gave them to defendant Jack Yocum, president of the Wyoming Valley West Taxpayers' Association an organization formed for the sole purpose of opposing the teachers' new contract. Yocum then gave the tape to a Fred Williams, a local radio show host, who goes by the name of Frederick Vopper. Vopper played portions of the cell phone conversation over the air. Bartnicki and Kane sued Vopper, two radio stations and Yocum in federal district court in 1994 under the Federal Wiretapping Act and a similar state law. In 1995, the federal district court denied all parties' motions for summary judgment, finding there were genuine issues of material fact. The district then later certified two questions of law to the 3rd U.S. Circuit Court of Appeals. The certified questions asked whether imposing liability on the defendants, none of whom illegally intercepted the contents of the phone call, violates the First Amendment. In 1999, a three-judge panel of the 3rd U.S. Circuit Court of Appeals rules that the federal law imposing liability on individuals who merely disclose or use material that was illegally intercepted violates the First Amendment. The plaintiffs and the United States, which had intervened to defend the constitutionality of its law, appealed to the U.S. Supreme Court. A court considering a challenge to an election law must balance the magnitude of the injury to the challenger's First Amendment rights against the offered justifications for the law, taking into account the extent to which the justifications make it necessary to burden the challenger's rights. Anderson v. Celebrezze, 460 U.S. 780 (1983). When the challenger's rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a compelling state interest. Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173 (1979). When the restrictions are only reasonable and nondiscriminatory, however, the state's important regulatory interests are generally sufficient to justify the restrictions. Anderson v. Celebrezze, 460 U.S. 780 (1983). "State action to punish the publication of truthful information seldom can satisfy constitutional concerns."Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). Privacy of communication is an important interest.Harper & Row, Publishers, Inc. v. Nation Enterprises,471 U.S. 539 (1985). The right of privacy does not generally prohibit the publication of truthful information of material that is of public interest. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, (1890).


In 1996, California law was amended to prohibit the release of the addresses of persons arrested if the information would be used for commercial purposes. The same law allowed the release of such information if used for a "scholarly, journalistic, political or governmental purpose" or for "investigative purposes" by a licensed investigator. Both lower courts ruled the law unconstitutional on First Amendment grounds. Laws that burden commercial speech must advance a substantial governmental interest in a direct and material way and be narrowly drawn. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980). "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." Houchins v. KQED, Inc., 438 U.S. 1 (1978).


In 1996 and 1997, various media outlets report on allegedly unsafe working conditions at Nike facilities in Southeast Asia. Nike responds to these allegations and negative publicity with a series of press releases, letters to university presidents and athletic directors and editorial advertisements. These documents deny that Nike mistreats workers, subjects them to unsafe working conditions and fails to pay proper overtime pay. In 1998, consumer activist Marc Kasky files a lawsuit against Nike and five of its corporate officers in San Francisco Superior Court, alleging negligent misrepresentation, intentional or reckless misrepresentation, unlawful business practices, and false advertising. The lawsuit claims that Nike violated state consumer laws prohibiting false advertising and unfair competition. Nike files a demurrer (motion to dismiss) on First Amendment grounds. In 1999, a trial court dismisses the suit on First Amendment grounds. A state appeals court affirms this ruling next year in Kasky v. Nike, Inc., 79 Cal. App. 4th 165, 93 Cal. Rptr. 2d 854 (Cal.App. 2000). The California appeals court disagrees with plaintiffs theory that Nikes expression is commercial speech deserving reduced First Amendment protection. The court writes that a public relations campaign focusing on corporate image, such as that at issue here, calls for a different analysis than that applying to product advertisement. Instead, the court determines that Nikes speech is noncommercial speech and public dialogue on a matter of public concern. On May 2, the California Supreme Court reverses in Kasky v. Nike, Inc. , 27 Cal. 4th 939, 45 P.3d 243 (Cal. 2002) by a vote of 4-3. The majority determines that because the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about the speakers own business operations for the purpose of promoting sales of its products, we conclude that these messages are commercial speech for purposes of applying state laws barring false and misleading commercial messages. Nike appeals to the U.S. Supreme Court, which agrees to hear the case. The Court schedules oral arguments for April 23, 2003.