Earlier this year, 15 states, including New York, Massachusetts, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia, as well as the District of Columbia, filed suit against Donald Trump ("in his official capacity as President of the United States"), the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement, among others.
According to the lawsuit, which was filed in federal court in New York in September, the Trump Administration's decision to end the Deferred Action for Childhood Arrivals ("DACA") program, which protects children brought to the U.S. illegally from being deported, runs afoul of the Due Process Clause of the Fifth Amendment, which prohibits the federal government from denying equal protection of the law, among other causes of action.
What About Fashion?
This might not seem like a lawsuit that necessarily stands to affect the fashion industry at large, but in actuality, the Trump administration’s increasingly polarizing policies do, in fact, impact the fashion industry, as they are essentially forcing companies to take a stand and do so publicly.
To date, this has largely consisted of executives for consumer goods companies distancing themselves from President Donald Trump’s various committees, such as his Manufacturing Jobs Initiative, and openly denouncing his views on everything from race relations and immigration to women’s rights and LGBT issues.
Consider the mass exodus of executives from Trump’s Jobs Initiative on the heels of the Charlottesville “Unite the Right” rally and Trump’s response to the white supremacism on display. 3M President and CEO Inge Thulin was one of the Council members that very overtly stepped down and condemned Trump.
In conjunction with an official announcement from 3M – which stated that “At 3M, we will continue to champion an environment that supports sustainability, diversity, and inclusion – Thulin tweeted, “I'm resigning from the Manufacturing Jobs Initiative because it's the right thing for me to do.”
But the involvement of brands in making their companies’ values known – something consumers are increasingly demanding – is taking a new turn, as indicated by a recent statement from Amazon, which has publicly backed the suit against Trump, and an even more recent lawsuit in which Patagonia is a named plaintiff.
Yes, Amazon used Trump’s move to overturn DACA – and the subsequently-filed lawsuit – as an opportunity to escalate the practice of brands taking a stand against the president and to make its values known, stating, “Amazon has always been committed to equal rights, tolerance and diversity — and we always will be. As we’ve grown the company, we’ve worked hard to attract talented people from all over the world and we believe this is one of the things that makes Amazon great — a diverse workforce with diverse backgrounds, ideas and points of view helps us build better products and services for our customers.”
As for outwear brand Patagonia, the company joined a group of land conservationists in suing the Trump administration after it announced the protected boundaries of Bear Ears National Monument, more than 1.3 million acres of land in Utah filled with Native American sites, would be reduced by more than 1 million acres.
In addition to adding its name to the complaint, Patagonia made a bold statement by way of its website, which read in bold letting “The President Stole Your Land," calling the move by the administration “illegal.”
The results have been significant. According to WWD, "On Dec. 5 and Dec. 6, the day of and day after Patagonia came out as part of the lawsuit against Trump, [its] sales through third parties surged 24 percent and 49 percent, and remained higher over the week, according to Slice data."
A Budding Trend?
These are not the first instances in which we have seen brands enter into the ring. In a completely unrelated matter, Everlane decided to chime in on the pending legal war between Gucci and Forever 21. This summer, the self-proclaimed “radically transparent” brand posted a photo on Instagram, entitled, "We Support Gucci."
In that post, the San Francisco-based brand wrote: “These cases tend to be highly contentious, and legal precedents exist for both sides. We are not denying that sometimes brands inspire and influence each other — that’s what creates trend. But this is not that. The styles in question are clear knockoffs — including a signature print and design — just recreated at a lower quality and a lower price. In this case, Forever 21 is directly profiting off of Gucci’s unique designs. It’s unethical and it has to stop.”
While third parties adding their two-cents to a lawsuit is not completely unheard of, involvement tends to come in something of a different form. Amicus briefs – or “friend of the court” briefs – are routinely submitted in appellate court cases by uninvolved parties with a strong interest in the subject matter. These briefs advise the court of relevant, additional information or arguments that the court might wish to consider.
It is here where fashion brands have most frequently gotten involved in the past. For instance, the fashion industry identified that it had a stake in the outcome of the Apple v. Samsung design patent infringement case, and in August 2016, more than 100 designers and educators signed on to an amicus brief in support of Apple. Famous fashion names involved include Nicolas Ghesquière, Alexander Wang, Calvin Klein, Dries Van Noten, Paul Smith, Alber Elbaz and Sacai’s Chitose Abe, the industrial design director at Parsons School of Design, the design director for Bentley Motors, and Tony Chambers, the editor-in-chief of Wallpaper magazine.
A group of designers also signed on to a brief in connection with the “cheerleader case,” a copyright matter that went before the Supreme Court, centering on whether the stripes, zigzags and chevrons characteristic of cheerleader uniforms can be copyrighted, or are, instead, so fundamental to the purpose of the garment that they should not get such legal protection.
Legal Interest, Standing up for a Cause, or Plain Old PR?
While some brands have opted to "get political," so to speak, in recent months, in particular, they absolutely run the risk of alienating consumers, either because consumers are turned off by their political stance or because certain acts may be deemed to be motivated more by marketing than actual desire for change. Everlane’s stepping into the Forever 21 v. Gucci spotlight, for instance, could appear – on its face, at least – to be more PR-driven than legal precedent-inducing.
It would be naive to overlook the potential points for goodwill that brands stand to potentially amass as a result of the mass-publication of their social cases; Patagonia has certainly fared well as a result of its actions. But Everlane’s Instagram post was particularly striking in this sense, as it walks a fine line between publicizing the ethos of the brand and banking on the legal battle of another to gain Instagram impressions in hopes of raising brand awareness and boosting sales.
Everlane decision to post the message on Instagram - a place where fashion brands are heavily marketing themselves to millennial and Gen-Z consumers, in particular - seems a potentially odd and opportunistic choice. Representatives for the company did not respond to a request for comment about the lawsuit-related Instagram post or its motivations for posting it.
But is it all that different from slogan t-shirts on the runway? Brands, after all, have been scrambling to make statements in recent months, as consumers – as a whole – have come to expect their favorite brands to take a stand in the increasingly polarizing political landscape. This is obvious if you look to the runway and/or the marked proliferation of t-shirts bearing activist and/or political statements.
While some expressions have been deemed to be genuine and authentic demonstrations of brands’ social causes of choice – whether it be women’s rights, immigration issues or taking sides in a lawsuit – others have fallen short. And this is representative of the hard fact that brands will always be in a very delicate predicament, considering that they are in the business of selling goods and services, first and foremost - and second only to the marketing of those goods and services.
* This article was initially published in September 2017 but has been updated to include Patagonia's recent lawsuit.