Judging by a 12 August PRSA teleconference held on the issue, the US Supreme Court’s decision not to rule on the Nike vs. Kasky case has yet to have a significant impact on the international public relations community. This case tested the applicability of the First Amendment of the US Constitution (which guarantees freedom of expression to individuals) to statements made by organisations (private, social and public). 

Participants in the PRSA teleconference, held six weeks after the US Supreme Court ‘non ruling’, included Kirk Stewart, vice president corporate affairs of Nike, Tom Goldsmith, Nike’s attorney to the US Supreme Court, Reed Bolton Byrum, president of PRSA and a host of US and international public relations professionals.

According to Stewart: ‘Today, all our statements, public appearances, interviews, publications and press releases are closely scrutinised by our lawyers before they reach the public, whereas before this happened only in the more relevant instances. Also, we have decided not to distribute to our external stakeholders our social responsibility report for last year’.

Goldsmith confirmed that: ‘a now-possible decision from the California Tribunal against Nike would affect every public expression from any organisation capable of reaching a California resident’…but Goldsmith also stated that this could apply equally to communications originating from other US states and overseas countries. As for internal communications the provision would apply only to organisations having employees in the State of California.

So, what’s all the fuss about? Have we overrated the relevance of this case?

Personally, I do not believe this to be the case. 

It is the first time our professional community has raised the issue of whether or not an organisation is protected under the first amendment (previously this was taken for granted). In itself this is an important issue. In Italy, for example, it is now necessary to establish if the same applies to Article 21 of the Constitution and, in general, to the Italian legal system. It would be a useful exercise for all countries to check.

Furthermore, I do not believe that public relations professionals within organisations, or within agencies, or consultants now always require their lawyers to check every single statement, press release, public appearance, publication and web page. Such a process would have a devastating effect on their daily work. It is however clear that the Nike-Kasky case should stimulate PR professionals across the board to gain sufficient understanding of the law in order to reduce and avert communications and related risks. 

So what are the medium and long-term effects? Are we so sure of the necessity and the effectiveness of all that we do? When we talk about social responsibility have we ever thought, first of all, that the very communication policies of our organisations need to be socially responsible and sustainable? Is it truly a paradox, as some argue, that on the one hand there is increasing external pressure for organisations to be more open and more transparent, while on the other organisational expression is constrained by the regulation of commercial speech? I wonder...

Apart from the specific Nike case, I believe we can now agree that many statements made by organisations are relevant - a necessary expression to the achievement of strategic objectives as much as to compete and to gain position in the market, but at least as often they amount to a massage of the organisational ego (or of the CEO, and worst of all, of the public relator).

Therefore, competent and sensitive organisations and PR professionals will now need to avoid indulging in irrelevant communications activities and concentrate on the truly relevant, thus contributing to a much needed ‘ecological clean up’ of our communication environment.

Concluding on the Nike case, it would certainly have been a tremendous victory for public relations if the Supreme Court had agreed with Nike that it has an organisational right to free expression…but having left things so uncertain, our professional community must be much more sensitive and careful. And, in itself, this cannot be a negative by-product.

Toni Muzi
Chair 2003, global alliance for public relations and communication management

ENDS