[wordup] Now Corporations Claim The "Right To Lie"

[Adam Shand]

I'm gonna start off with this quote from David Brin cause I think it's 
kinda cool:

Via: http://webseitz.fluxent.com/wiki/z2002-12-27-DavidBrinOnTolkien
From: http://www.kithrup.com/brin/tolkienarticle1.html

This yearning makes sense if you remember that arbitrary lords and 
chiefs did rule us for 99.44 percent of human existence. It's only been 
200 years or so - an eye blink - that "scientific enlightenment" began 
waging its rebellion against the nearly universal pattern called 
feudalism, a hierarchic system that ruled our ancestors in every culture 
that developed both metallurgy and agriculture... Only something 
exceptional started happening. Bit by bit, the elements began taking 
shape for a new social and intellectual movement, one finally capable of 
challenging the alliance of warrior lords, priests, bards and secretive 
magicians... And yet, almost from its birth, the Enlightenment Movement 
was confronted by an ironic counterrevolution, rejecting the very notion 
of progress. The Romantic Movement erupted as a rebellion against the 
rebellion. In fairness, it didn't start out that way... In this 
conflict, J.R.R. Tolkien stood firmly for the past... Try as he might, 
and even confronted with the blatant Romantic excesses of Nazism, 
Tolkien could not escape his own deep conviction that democratic 
enlightenment and modernity made up the greater evil... And remember 
this too: Enlightenment, science, democracy and equal opportunity are 
still the true rebels, reigning for just a few generations (and still 
imperfectly) in one or two corners of the Earth, after elite chiefs, 
romantic bards and magicians dominated our ancestors for maybe half a 
million years. Don't you think a little pride in that rebellion - a 
radical revolution-in-progress, still fresh and incomplete - might be 
called for?... You are heirs of the world's first true CivilizatIon, 
arising out of the first true revolution. Take some pride in it

From: http://www.commondreams.org/views03/0101-07.htm

Published on Wednesday, January 1, 2003 by CommonDreams.org
Now Corporations 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 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 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 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 by Thom Hartmann, 
but permission is granted for reprint in print, email, or web media so 
long as this credit is attached.