Nike’s speech rights?

Nike’s decision to scuttle the Betsy Ross flag shoe design says so much about how touchy we’ve become as a society. Maybe Nike’s being too politically correct, maybe Nike’s critics are being too outraged. Probably both. What interests me, though, is Arizona’s threat to withdraw financial incentives dangled in front of Nike as an incentive to build a plant in the state. Does this implicate Nike’s free speech rights? I think it might.

The interesting aspect of this scenario is that it features the flip sides of two coins. Rather than being punished for speaking, Nike is being punished for refraining to speak. And rather than punishing my Nike by, say, imposing an additional tax, Arizona is threatening to withdraw an incentive that the state isn’t obligated to provide in the first place.

As to the first point, it has long been clear that expression itself is not the only thing protected by the free speech guarantee. Rather, the First Amendment protects decisions about expression, including the decision not to engage in speech. The unusual aspect of this situation is that the government is not trying to compel Nike to speak a message created by or sponsored by the government. Rather, Arizona is penalizing the company for creating its own expression and then changing its mind. Still, I think this would likely be considered to be part of one’s right not to speak.

As to the withdrawal of incentives, the free speech guarantee forbids the government from placing an unconstitutional condition on a government benefit–i.e., you better sell that shoe with the Betsy Ross flag on it, or you don’t get those tax breaks. Government can’t force someone to waive a constitutional right in exchange for a government benefit.

The other interesting question here is whether Nike’s speech–or lack thereof–would be considered commercial speech, which is less protected than other forms of speech. In a way, the Betsy Ross flag shoe nicely demonstrates why this is a silly distinction–the flag has deep political meaning. Why does it matter that it’s printed on a retail shoe rather than stuck on a sign in someone’s yard?

In any case, it seems like there’s a plausible free speech problem behind Arizona’s overreaction, here. I’m curious to see if anything comes of it.