I will attempt to summarise, and supply links to the original documents wherever feasible, of what is possibly the most interesting case of a US Federal Court debating an organization’s public relations activities since the Nike/Kasky story… remember?
If not, see
This time, and surprisingly, the accused subject is a trade union, the United Food and Commercial Workers; while the accuser is a corporation, Smithfield, the world’s largest producer and processor of pigs, and the case could very well end up at the Supreme Court.
At the time of the Nike-Kasky case, the Supreme Court -involved by Nike following a negative decision by the California State Court- decided not to decide; the real question being if a huge corporation (Nike) is, like any individual, protected by the First Amendment.
Many traditional defenders of Big Business lobbied then on Nike’s side.
In this case, should the Federal Court fail to make a decision, or should one of the parties involved decide to appeal that decision, the Supreme Court would basically be facing the same question, this time however the subjects at the table are reversed: rather than an activist taking on a huge corporation (Mike Kasky versus Nike), it would be a huge corporation taking on a trade union (Smithfields versus UFCW).
The issue being similar, it will be interesting to see if Big Business will take the Trade Union’s side as it did with Nike.
Personally I have many doubts for at least two reasons:
a) Trade Unions are not very popular in the United States;
b) Big Business would be happy if a Trade Union was convicted of racketeering because of its attempts to engage ad adversary company’s stakeholders, as this would discourage the least militant organizations in civil society from criticizing corporations, thus reducing the latter needs to counteract with public relations activities, disregarding the normative issue of the lip-service protection of the First Amendment, which instead was claimed essential in the Nike-Kasky case..
This case was covered the other day by an intriguing piece published in the New York Times.
Odwyer then informed that Kekst, one of the leading financial pr firms in America, is representing Smithfield.
The New York Times piece explained that a Federal Judge accepted to discuss a trial in which, under the the RICO ACT (antimafia… thus the reference to John Gotti in the accusation), Smithfield accused UFCW of racketeering claiming it had involved company stakeholders in supporting the union’s longstanding quest to be formally recognized by that specific company.
And this, by performing activities which the New York Times says are simple ‘free speech’ protected by the First Amendment, but which any of us would, without hesitation, define as public relations (including the ‘placing’ of the NYT article!).
If you take the union’s perspective, one could say that this is the first time an activist organization’s long standing attempt to gain formal recognition by a corporation through public relations is defined and denounced as racketeering.
If instead your take Smithfield’s perspective, this is the first time that a trade union explicitly engages a company’s stakeholders into what the same company defines as a collective case of extortion, while some of us would define, at least in part, as black pr (in the sense that, rather that reinforcing the trade unions reputation, the campaign aimed at debilitating Smithfield’s).
But, what does all the wrongdoing amount to?
Basically it has to do with press releases, a web site, petitions, communication with company stakeholders and, in some cases, even one with one relationships and outright lobbying!
A vivid example of these activities defined by Smithfield lawyers as a ‘loss of an incomparable marketing opportunity’ is when UFCW convinced Oprah Winfrey to refuse the participation in her television show of Smithfield front promoter celebrity chef Paula Deene.
The results of this case will have far reaching consequences on our profession!
If Smithfield wins, public relations will have been defined by a Federal Court as racketeering, there will be a reduction of activist public relations -one of the fastest growing segments of our profession in terms of number of professionals involved- but only indirectly relevant to the traditional pr industry inasmuch as corporations and agencies will have less need to counteract…
If UFCW wins, a Federal Court will have accepted that an activist group is allowed to reach out to a adversary company’s stakeholders and engage them in public relations activities aimed at debilitating that same company in the attempt to force her to give in to a specific activist group objective (a practice which is today routine, but this would be the first time that so called black pr is officially accepted as normal practice by a Federal Court).
If neither win then the issue could well go to the Supreme Court who will this time will need to decide if an organization is, as an individual, protected by the First Amendment.
If I had a say (which, of course, I do not), I would suggest that Smithfield be wise to take back its accusation, that UFCW publicly pledge to implement only white rather than black pr (i.e. do pr for itself and its cause and not against someone on grounds which are different from the objective) and that the professional community worldwide strongly, publicly and actively advocate this change of mind of both parties.