American business should be breathing a little easier these days. According to the New York Times
account of arguments in the Supreme Court last week, the justices are leaning toward dismissing a suit against Nike that threatens to elevate the liability for companies that lie about their business practices. Imagine, my PR friends: You could get into real trouble for putting too much spin on that next public statement.
The First Amendment is not a one-size-fits-all package of rights. It affords commercial speech (advertising and such) far less protection than it does noncommercial speech (news and entertainment). As a result, if you lie in an ad, the Federal Trade Commission can come after you for false and misleading advertising. In California, you can be sued by ordinary citizens under some newfangled unfair-trade-practices law. Noncommercial speech is not immune to libel suits, but, because of its greater First Amendment protection, making the case is tough.
The Nike case centers on a big PR campaign that the shoe manufacturer conducted to answer charges that it was making its sneakers in foreign sweatshops. A San Franciscan named Marc Kasky sued, alleging that the campaign was filled with untruths. He also argued that the Nike PR campaign was commercial speech because it was really ultimately aimed at maintaining people's good opinion of the company and selling more shoes.
The ruling in the case is expected in June (I'll keep you posted).
In the meantime, though, I have been imagining what TV and radio would be like if Nike loses the case and the companies we cover feel compelled to tell the whole truth.
Will we still get press releases saying the CEO resigned to spend more time with his family? Will TV shows continue to go "on hiatus?" Will every syndicated show, through some tortured statistical analysis, still be No. 1?
One of my favorites: Broadcasters will give back their analog channels once the transition to digital is completed. Ain't going to happen. The NAB's unofficial motto (chanted at secret Spanish Bay rituals): "You can have my spectrum when you pry it from my cold, dead hand."
PBS and noncommercial stations, I'm afraid, are guilty of telling some stretchers. They say they don't sell advertising. They say they have "underwriters" and "sponsors." I say if it quacks like an ad ...
The Disney Channel is another network that claims it is commercial-free. Bull. The entire network is a commercial for Disneyland, Disney World and everything else Disney. It also accepts "sponsorships."
Other up-and-coming networks have a tendency to, how shall we say, overstate their distribution. They will tell you 40 million homes, but, if you probe a little, you find that it's really only 20 million because they are stuck on digital tiers in most places.
Cable operators' best linguistic gymnastics are behind them. In the late 1970s and early '80s, they told cities whatever they wanted to hear to win franchises. Still, today, operators have been known to do verbal handstands to justify their annual rate increases. We have to increase rates, they say, to offset rising programming costs. Yeah, and Mel loves Sumner.
Nielsen accurately measures TV viewership, and Arbitron accurately measure radio listenership. Nobody believes this. Yet everybody kind of has to pretend to because, otherwise, the whole business would collapse amid chaos. Think Baghdad.
Trade associations should be sued for inflating convention attendance figures. We can't sit there counting how many people walk into the convention center, but we have been finding big gaps between what the PR people say and what the cab drivers say. And the latter are a "people meter" we can rely on.
And how about the ad buyers and sellers in these weeks leading up to the upfronts? The gap in some of their forecasts (buyer low, seller high) might lead a skeptical reporter to wonder whether they are giving honest estimates or just gaming the process.
Last year, the California Supreme Court agreed that Nike's PR campaign was commercial speech and entitled to minimal First Amendment protection. But, as I said, the Supreme Court is expected to overturn the state court. If so, you will be free to bend the truth a little here, twist the numbers a little there and generally go about your business as usual. Relax. Would I lie to you?
Jessell may be reached at email@example.com