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Corporations Are Not Persons

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  • Dan Clore
    News for Anarchists & Activists: http://groups.yahoo.com/group/smygo Corporations Are Not Persons by Jennifer Van Bergen, TruthOut.com June 9, 2003 The case of
    Message 1 of 1 , Jun 18, 2003
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      News for Anarchists & Activists:
      http://groups.yahoo.com/group/smygo

      Corporations Are Not Persons
      by Jennifer Van Bergen, TruthOut.com
      June 9, 2003

      The case of Nike v. Kasky, currently before the Supreme
      Court, involves a fundamental question about corporations
      that unfortunately has not been raised by either the parties
      in the case or the media.

      Marc Kasky is suing Nike, Inc. under California laws
      regulating unfair competition and false advertising. Kasky
      claims that when an internal audit was leaked to the press
      that revealed illegal employment practices in Nike's
      factories in China, Vietnam, and Indonesia, Nike responded
      by issuing to the press numerous statements it knew to be
      false.

      The issue before the Supreme Court is whether Nike can be
      held liable for its misrepresentations under false
      advertising laws or whether its various public documents and
      letters to the press and others are constitutionally
      protected free speech.

      Not addressed in the arguments before the Court, but
      underlying them nonetheless is an invisible beast: the idea
      that corporations are people.

      This is a notion that the National Lawyers Guild (NLG)
      opposes. The Mission Statement of the NLG Committee on
      Corporations, the Constitution & Human Rights states, in
      part: "We oppose recognition of the personhood of
      corporations under the Fourteenth Amendment. Protections of
      the Bill of Rights are given to people out of a concern for
      human dignity, liberty or equality. Corporate claims to such
      protections should be rejected."

      ReclaimDemocracy.org mirrors this sentiment: "The notion
      that corporations -- entities unmentioned in our
      Constitution -- should enjoy protections created for living
      human beings is a concept deserving burial deep in the same
      dark closet as the legal precedents of slavery and 'separate
      but equal.'"

      The National Voting Rights Institute and
      ReclaimDemocracy.org, which jointly filed an amicus brief
      for Kasky, state: "The claim that corporations possess a
      right to intentionally deceive the public has no basis in
      the U.S. Constitution. Incorporation is a privilege granted
      by the people's representatives in state governments, and
      corporations must remain subordinate to our democratic
      institutions. The discredited judicial creations of
      "corporate personhood" and corporate "political rights"
      should be unequivocally rejected by the Court."

      The Dangers of Corporate Personhood

      Nike argues that its statements should be protected under
      the First Amendment. This implies that Nike can be viewed as
      a person.

      The notion of "corporate personhood" was adopted by the
      Supreme Court under very dubious circumstances, when a court
      reporter used the term in a head note he created for an 1886
      Court decision that actually declined to address the issue.
      (The case was Santa Clara County v. Southern Pacific
      Railroad Co., 118 U.S. 394.)

      In a later 1889 case, Minneapolis & St. Louis Railway
      Company (129 U.S. 26), Justice Field cited Santa Clara as
      holding that corporations are persons, and that inaccurate
      notion of Santa Clara's holding remains today. Nonetheless,
      other Supreme Court decisions support the opposite view. The
      Court stated in a 1990 decision, Austin v. Michigan Chamber
      of Commerce, that because corporations have "state-conferred
      . . . structures," and "[s]tate law grants [them] special
      advantages," their political speech can be regulated by the
      state. In other words, they do not have the constitutional
      right to free speech.

      These "special advantages" include the ability to amass
      "large treasuries" and "immense aggregations of wealth."
      What is wrong with immense aggregations of wealth? Isn't
      that the American way: rags to riches? The problem is that
      in the corporate world those who hold the wealth
      (stockholders) do little to create it, while those who
      actually do the work, the employees of these corporations,
      get less and less for their labors. (Recall Enron.)

      In her book, "The Divine Right of Capital," Marjorie Kelly
      asks: "Why have the rich gotten richer while employee income
      has stagnated? Because that's the way the corporation is
      designed." Kelly asserts that stockholders today reserve for
      themselves (and deny to employees) the same privilege
      claimed by the French aristocracy before the French
      Revolution: rights to endless streams of income detached
      from productive contributions.

      Equally as important, if not more so, is the fact, according
      to Kelly, that "[c]orporate capitalism embraces a
      predemocratic concept of liberty reserved for property
      holders, which thrives by restricting the liberty of
      employees and the community."

      If we take Kelly's statement as accurate, it should be clear
      that granting corporations personhood subverts and endangers
      democracy. In the early American republic, corporations
      existed only by special state grant to promote the public
      good. Corporations today are no longer subject to such
      restrictions. They now function like a secular aristocracy
      that rules over a slave class. In light of the immense
      wealth and power held by corporations, granting them
      equivalent rights as individuals is irrational and
      dangerous.

      The consequences of corporate personhood are not trivial. In
      his book "In the Absence of the Sacred" Jerry Mander writes
      "Not being human, not having feelings, corporations do not
      have morals or altruistic goals." A nonhuman entity that
      cannot possess morals is certainly not fit to be granted
      equal standing with a person. Indeed, granting amoral
      entities so-called equal rights with persons, which because
      of corporations' great wealth and power become greater
      rights, is so irrational it ought to be considered a kind of
      insanity.

      Finally, there is the effect on our world of corporations'
      growth imperative. This effect, according to Mander, is "now
      clearly visible, as the world's few remaining pristine
      places are sacrificed to corporate production." Granting
      personhood to a mechanism for destruction of our environment
      cannot be sound policy if the human race is to survive and
      thrive.

      Allowing an entity to usurp individual civil rights and harm
      the environment is bad enough. But corporate personhood does
      yet more.

      Activist William Meyers writes that corporate personhood
      "changes the relationship between people and corporations,
      between corporations and the government, and even between
      the government and the people. The effects of these changes
      in relationships range from loss of liberty and income for
      citizens to the destruction and poisoning of the earth and
      the corruption of the U.S. government."

      Meyers concludes: "Corporate personhood allows the
      wealthiest citizens to use corporations to control the
      government and use it as an intermediary to impose their
      will upon the people."

      Thus, corporate personhood is not just a kind of "free
      radical" unleashed into an otherwise organized, healthy
      system. It is something that actively destroys that healthy
      system. In other words, corporate personhood corrupts and
      destroys democratic government.

      Commercial Speech versus Free Speech: The False Distinction

      The argument between Nike and Kasky boils down to whether
      Nike was engaging in commercial speech or constitutionally
      protected "free speech" (implying corporate personhood) when
      it responded to attacks with misrepresentations about its
      business practices. The Supreme Court, therefore, will
      decide only whether Nike's responses (including a production
      pamphlet, postings on Nike's web site, a press release, a
      letter to the editor of the New York Times, and several
      other documents) are "commercial speech" or "free speech."
      If Nike's representations are considered commercial speech,
      Nike will be subject to California's false advertising law.

      If the Supreme Court decides Nike has a right to free
      speech, like a human being, Nike will not be subject to that
      law. Since it appears that Kasky can show that Nike lied in
      its statements to the public, the question then remains
      whether Nike has a constitutionally protected right to lie.

      The Northern California American Civil Liberties Union has
      filed an amicus brief in support of Nike's right to free
      speech. Although the NLG and ACLU share many views
      respecting civil rights, this is one area on which the two
      differ. The ACLU believes that Nike's speech should be
      protected like a persons'. The Northern California ACLU
      states that "the purpose of our brief was to assure that the
      question of the truthfulness of Nike's assertions was judged
      by the same set of rules that would apply were someone to
      question the truthfulness of the assertions of its critics."
      The ACLU believes that the statements from Nike "are not
      comparable to ordinary advertisements" that would fall under
      commercial speech regulations.

      Indeed, according to Linda Greenhouse, Kasky himself
      "conceded that if Nike's statements were deemed not to be
      commercial speech, the First Amendment would require
      dismissal of his lawsuit."

      The NLG believes that this distinction is false and evades
      the underlying question of corporate personhood. It is this
      question that the Supreme Court should be answering. The NLG
      agrees with the statement of Professor Robert C. Post of the
      University of California at Berkeley, quoted in Greenhouse's
      article that "[s]tate control of corporate speech is fully
      at the heart of [this case]." However, as long as the notion
      of corporate personhood is not clearly raised and finally
      discredited, the question of state control is not likely to
      be fairly addressed and the Court's decision will fall short
      of a democratic solution.

      --
      Dan Clore

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