June 1996, New York Times columnist Bob Herbert wrote a pair of opinion editorials accusing Nike Corp. of cruelly exploiting cheap Asian labor. Nike CEO Philip Knight replied in a letter to the editor, which the Times published. Some of the information in the Knight letter included that Nike has, on average, paid double the minimum wage as defined in countries where its products are produced under contract.

In 1998, Marc Kasky, a resident of California, sued Nike, alleging that the Knight letter violated California’s consumer protection laws against deceptive advertising and unfair business practices. In effect, the position was that the New York Times editorials were under the First Amendment, but that the Nike reply was under the Fifth Amendment. The First Amendment covers freedom of speech, while the Fifth Amendment covers commercial speech.

The California Supreme Court ruled in May 2002 that the Nike reply had to be viewed under the Fifth Amendment. The Supreme Court stated it was ‘‘commercial speech because it is both more readily verifiable by its speaker and more hardy than noncommercial speech, can be effectively regulated to suppress false and actually or inherently misleading messages without undue risk of chilling public debate.’’

Nike appealed the decision to the U.S. Supreme Court. The Supreme Court agreed to hear the case. In June 2003, the Supreme Court changed its mind and dismissed the matter on procedural grounds.Usually, the justices consider cases only after the state courts render a final decision; here, the state court had only said the speech was a commercial speech and sent the case back down for further proceedings—likely including a trial on whether the statements were indeed misleading.

A trial did not take place, as Nike settled on September 2003, agreeing to pay $1.5 million over a three-year period to the Fair Labor Association, a Washington worker-rights group.

Required
a. Write a position paper on why the Nike reply should be viewed under the First Amendment.
b. Write a position paper on why the Nike reply should be viewed under the Fifth Amendment.