Free Speech to have Sweatshops? How Kasky v. Nike Might Provide a Useful Tool to Improve Sweatshop Conditions

Abstract

In 1998, consumer activist Marc Kasky sued Nike, claiming that Nike’s statements in the media denying sweatshop conditions in its factories were false advertising. This case, culminating in a controversial California Supreme Court decision, has attracted much criticism on its implications of free speech. Little attention has been paid to how Nike v. Kasky might be a useful tool for anti-sweatshop advocates, who have up until now had great difficulty holding companies accountable for their sweatshop labor conditions. This Note examines the anti-sweatshop movement and its lack of effective private enforcement techniques. It then explores how the California Supreme Court in Kasky expanded the commercial speech doctrine. Lastly, it analyzes how Kasky might be used by anti-sweatshop advocates against corporations with sweatshop conditions. This Note concludes that Kasky is an imperfect tool but one that, when used in moderation, would not have a strong chilling effect on corporate speech.