Claim The "Right To Lie"
By Thom Hartmann
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
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
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."
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
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
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
fenceposts 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
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
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?),
"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
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
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