"People of all political persuasions who are concerned about
democracy and human rights are encouraging other humans to contact
the ACLU (125 Broad Street, 18th Floor, New York, NY 10004) and
ask them to join Kasky in asserting that only living, breathing
humans have human rights. Organizations like ReclaimDemocracy.org
are documenting the case in detail on the web with a sign-on
letter, in an effort to bring the ACLU and other groups in on
behalf of Kasky." |
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Now Corporations Claim The Right To Lie
Posted January 4, 2003
thepeoplesvoice.org
By THOM HARTMANN
www.unequalprotection.com
& www.thomhartmann.com
Contact: Louise@thomhartmann.com
Multiple
submission in syndication
While Nike was conducting a huge and expensive PR blitz to tell
people that it had cleaned up its subcontractors' sweatshop labor
practices, an alert consumer advocate and activist in California
named Marc Kasky caught them in what he alleges are a number of
specific deceptions. Citing a California law that forbids
corporations from intentionally deceiving people in their commercial
statements, Kasky sued the multi-billion-dollar corporation.
Instead of refuting Kasky's charge by proving in court that they
didn't lie, however, Nike instead chose to argue that corporations
should enjoy the same "free speech" right to deceive that
individual human citizens have in their personal lives. If people
have the constitutionally protected right to say, "The check is
in the mail," or, "That looks great on you," then,
Nike's reasoning goes, a corporation should have the same right to
say whatever they want in their corporate PR campaigns.
They took this argument all the way to the California Supreme
Court, where they lost. The next stop may be the U.S. Supreme Court
in early January, and the battle lines are already forming. For example, in a column in the New York Times supporting Nike's
position, Bob Herbert wrote, "In a real democracy, even the
people you disagree with get to have their say." True enough.
But Nike isn't a person - it's a corporation. And it's not their
"say" they're asking for: it's the right to deceive
people. Corporations are created by humans to further the goal of making
money. As Buckminster Fuller said in his brilliant essay The
Grunch of Giants, "Corporations are neither physical nor
metaphysical phenomena. They are socioeconomic ploys - legally
enacted game-playing..."
Corporations are non-living, non-breathing, legal fictions. They
feel no pain. They don't need clean water to drink, fresh air to
breathe, or healthy food to consume. They can live forever. They
can't be put in prison. They can change their identity or appearance
in a day, change their citizenship in an hour, rip off parts of
themselves and create entirely new entities. Some have compared
corporations with robots, in that they are human creations that can
outlive individual humans, performing their assigned tasks forever.
Isaac Asimov, when considering a world where robots had become as
functional, intelligent, and more powerful than their human
creators, posited three fundamental laws that would determine the
behavior of such potentially dangerous human-made creations. His
Three Laws of Robotics stipulated that non-living human creations
must obey humans yet never behave in a way that would harm humans.
Asimov's thinking wasn't altogether original: Thomas Jefferson
and James Madison beat him to it by about 200 years.
Jefferson and Madison proposed an 11th Amendment to the
Constitution that would "ban monopolies in commerce,"
making it illegal for corporations to own other corporations,
banning them from giving money to politicians or trying to influence
elections in any way, restricting corporations to a single business
purpose, limiting the lifetime of a corporation to something roughly
similar to that of productive humans (20 to 40 years back then), and
requiring that the first purpose for which all corporations were
created be "to serve the public good." The amendment didn't pass because many argued it was unnecessary:
Virtually all states already had such laws on the books from the
founding of this nation until the Age of the Robber Barons.
Wisconsin, for example, had a law that stated: "No
corporation doing business in this state shall pay or contribute, or
offer consent or agree to pay or contribute, directly or indirectly,
any money, property, free service of its officers or employees or
thing of value to any political party, organization, committee or
individual for any political purpose whatsoever, or for the purpose
of influencing legislation of any kind, or to promote or defeat the
candidacy of any person for nomination, appointment or election to
any political office." The penalty for any corporate official
violating that law and getting cozy with politicians on behalf of a
corporation was five years in prison and a substantial fine.
Like Asimov's Three Laws of Robotics, these laws prevented
corporations from harming humans, while still allowing people to
create their robots (corporations) and use them to make money.
Everybody won. Prior to 1886, corporations were referred to in US
law as "artificial persons," similar to the way Star Trek
portrays the human-looking robot named Data.
But after the Civil War, things began to change. In the last year
of the war, on November 21, 1864, President Abraham Lincoln looked
back on the growing power of the war-enriched corporations, and
wrote the following thoughtful letter to his friend Colonel William
F. Elkins:
"We may congratulate ourselves that this cruel war is
nearing its end. It has cost a vast amount of treasure and blood.
The best blood of the flower of American youth has been freely
offered upon our country's altar that the nation might live. It has
indeed been a trying hour for the Republic; but I see in the near
future a crisis approaching that unnerves me and causes me to
tremble for the safety of my country.
"As a result of the war, corporations have been enthroned
and an era of corruption in high places will follow, and the money
power of the country will endeavor to prolong its reign by working
upon the prejudices of the people until all wealth is aggregated in
a few hands and the Republic is destroyed. I feel at this moment
more anxiety than ever before, even in the midst of war. God grant
that my suspicions may prove groundless."
Lincoln's suspicions were prescient. In the 1886
Santa Clara
County vs. Southern Pacific Railroad case, the U.S. Supreme
Court ruled that the state tax assessor, not the county assessor,
had the right to determine the taxable value of fence posts along
the railroad's right-of-way.
However, in writing up the case's headnote - a commentary that
has no precedential status - the Court's reporter, a former railroad
president named J.C. Bancroft Davis, opened the headnote with the
sentence: "The defendant Corporations are persons within the
intent of the clause in section 1 of the Fourteen Amendment to the
Constitution of the United States, which forbids a State to deny to
any person within its jurisdiction the equal protection of the
laws."
Oddly, the court had ruled no such thing. As a handwritten note
from Chief Justice Waite to reporter Davis that now is held in the
National Archives said: "we avoided meeting the Constitutional
question in the decision." And nowhere in the decision itself
does the Court say corporations are persons.
Nonetheless, corporate attorneys picked up the language of
Davis's headnote and began to quote it like a mantra. Soon the
Supreme Court itself, in a stunning display of either laziness (not
reading the actual case) or deception (rewriting the Constitution
without issuing an opinion or having open debate on the issue), was
quoting Davis's headnote in subsequent cases. While Davis's Santa
Clara headnote didn't have the force of law, once the Court
quoted it as the basis for later decisions its new doctrine of
corporate personhood became the law.
Prior to 1886, the Bill of Rights and the 14th Amendment defined
human rights, and individuals - representing themselves and their
own opinions - were free to say and do what they wanted.
Corporations, being artificial creations of the states, didn't have
rights, but instead had privileges. The state in which a corporation
was incorporated determined those privileges and how they could be
used. And the same, of course, was true for other forms of
"legally enacted game playing" such as unions, churches,
unincorporated businesses, partnerships, and even governments, all
of which have only privileges.
But with the stroke of his pen, Court Reporter Davis moved
corporations out of that "privileges" category - leaving
behind all the others (unions, governments, and small unincorporated
businesses still don't have "rights") - and moved them
into the "rights" category with humans, citing the 14th
Amendment which was passed at the end of the Civil War to grant the
human right of equal protection under the law to newly-freed slaves.
On December 3, 1888, President Grover Cleveland delivered his
annual address to Congress. Apparently the President had taken
notice of the Santa Clara County Supreme Court headnote, its
politics, and its consequences, for he said in his speech to the
nation, delivered before a joint session of Congress: "As we
view the achievements of aggregated capital, we discover the
existence of trusts, combinations, and monopolies, while the citizen
is struggling far in the rear or is trampled to death beneath an
iron heel. Corporations, which should be the carefully restrained
creatures of the law and the servants of the people, are fast
becoming the people's masters."
Which brings us to today.
In the next few weeks the U.S. Supreme Court will decide whether
or not to hear Nike's appeal of the California Supreme Court's
decision that Nike was engaging in commercial speech which the state
can regulate under truth in advertising and other laws. And lawyers
for Nike are preparing to claim before the Supreme Court that, as a
"person," this multinational corporation has a
constitutional free-speech right to deceive.
The U.S. Chamber of Commerce, Exxon/Mobil, Monsanto, Microsoft,
Pfizer, and Bank of America have already filed amicus briefs
supporting Nike. Additionally, virtually all of the nation's largest
corporate-owned newspapers have recently editorialized in favor of
Nike and given virtually no coverage or even printed letters to the
editor asserting the humans' side of the case.
On the side of "only humans have human rights" is the
lone human activist in California - Marc Kasky - who brought the
original complaint against Nike.
People of all political persuasions who are concerned about
democracy and human rights are encouraging other humans to contact
the ACLU (125 Broad Street, 18th Floor, New York, NY 10004) and
ask them to join Kasky in asserting that only living, breathing
humans have human rights. Organizations like ReclaimDemocracy.org
are documenting the case in detail on the web with a sign-on
letter, in an effort to bring the ACLU and other groups in on
behalf of Kasky.
Corporate America is rising up, and, unlike you and me, when
large corporations "speak" they can use a billion-dollar
bullhorn. At this moment, the only thing standing between their
complete takeover of public opinion or their being brought back
under the rule of law is the U.S. Supreme Court.
And, interestingly, the Chief Justice of the current Court may
side with humans, proving this is an issue that is neither
conservative or progressive, but rather one that has to do with
democracy versus corporate plutocracy.
In the 1978 Boston v. Bellotti decision, the Court agreed,
by a one vote majority, that corporations were "persons"
and thus entitled to the free speech right to give huge quantities
of money to political causes. Chief Justice Rehnquist, believing
this to be an error, argued that corporations should be restrained
from political activity and wrote the dissent.
He started out his dissent by pointing to the 1886
Santa Clara
headnote and implicitly criticizing its interpretation over the
years, saying, "This Court decided at an early date, with
neither argument nor discussion, that a business corporation is a
'person' entitled to the protection of the Equal Protection Clause
of the Fourteenth Amendment. Santa Clara County v. Southern
Pacific R. Co., 118 U.S. 394, 396 (1886). ..."
Then he went all the way back to the time of James Monroe's
presidency to re-describe how the Founders and the Supreme Court's
then-Chief Justice John Marshall, a strong Federalist appointed by
outgoing President John Adams in 1800, viewed corporations.
Rehnquist wrote: "Early in our history, Mr. Chief Justice Marshall described
the status of a corporation in the eyes of federal law: "'A corporation is an artificial being, invisible,
intangible, and existing only in contemplation of law. Being the
mere creature of law, it possesses only those properties which the
charter of creation confers upon it, either expressly, or as
incidental to its very existence. These are such as are supposed
best calculated to effect the object for which it was
created.'..."
Rehnquist concluded his dissent by asserting that it was entirely
correct that states have the power to limit a corporation's ability
to spend money to influence elections (after all, they can't vote
– what are they doing in politics?), saying:
"The free flow of information is in no way diminished by the
[Massachusetts] Commonwealth's decision to permit the operation of
business corporations with limited rights of political expression.
All natural persons, who owe their existence to a higher sovereign
than the Commonwealth, remain as free as before to engage in
political activity."
Justices true to the Constitution and the Founders' intent may
wake up to the havoc wrought on the American political landscape by
the Bellotti case and its reliance on the flawed Santa
Clara headnote. If the Court chooses in the next few weeks to
hear the Kasky v. Nike case, it will open an opportunity for them to
rule that corporations don't have the free speech right to knowingly
deceive the public. It's even possible that this case could cause
the Court to revisit the error of Davis's 1886 headnote, and begin
the process of dismantling the flawed and unconstitutional doctrine
of corporate personhood.
As humans concerned with the future of human rights in a
democratic republic, it's vital that we now speak up, spread the
word, and encourage the ACLU and other pro-democracy groups to help
Marc Kasky in his battle on our species' collective behalf.
-###-
Thom Hartmann is the author of "Unequal Protection:
The Rise of Corporate Dominance and the Theft of Human Rights."
www.unequalprotection.com
This article is ©
Copyright, all rights reserved by Thom Hartmann, but permission is
granted for reprint in print, email, or web media so long as this
credit is attached.
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