COMMONDREAMS, January 1, 2003 &
IMPACT PRESS, Feb/Mar, 2003
Title: “Now Corporations Claim the Right to ‘Lie’”
Author: Thom Hartmann
WILD MATTERS, February 2003
Title: “Americans Revolt in Pennsylvania: New Battle Lines Are Drawn”
Author: Thom Hartmann
THE HIGHTOWER LOWDOWN, April 2003
Title: "How a Clerical Error Made Corporations 'People'"
Author: Jim Hightower
Faculty Evaluators: Mary Gomes Ph.D. , Ken Marcus Ph.D.
Student Researchers: Chris Salvano, Sherry Grant,
Partial Mainstream Coverage: The New York
Times, The LA Times, USA Today, Fortune Magazine, The Ottawa Citizen.
Since the founding of our country, a debate
has raged over the nature of corporations and whether they should be entitled
to the same right to legal “personhood” as actual people. This idea of
corporate personhood has recently come under scrutiny.
It was back in 1886 that a Supreme Court decision (Santa Clara County v. Southern Pacific Railroad Company) ostensibly led to corporate
personhood and free speech rights, thereby guaranteeing protections under the
1st and 14th amendments. However, according to Thom Hartmann, the relatively
mundane court case never actually granted these personhood rights to
corporations. In fact, Chief Justice Morrison Waite wrote, “We avoided meeting
the Constitutional question in the decision.” Yet, when writing up the case
summary —that has no legal status—the Court reporter, a former railroad
president named J.C. Bancroft Davis, declared: “The defendant Corporations are
persons within the intent of the clause in section 1 of the Fourteenth
Amendment to the Constitution of the United States, which forbids a state to
deny any person within its jurisdiction the equal protection of the laws.” But
the Court had made no such legal determination. It was the clerk’s opinion and
misrepresentation of the case in the headnote upon which current claims of
corporate personhood and free speech entitlements now rests.
In 1978, however, the Supreme Court further entrenched the idea of corporate
personhood by deciding that corporations were entitled to the free speech right
to give money to political causes – linking free speech with financial clout.
Interestingly, in a dissent to the decision, Chief Justice William Rehnquist
pointed out the flawed 1886 precedent and criticized 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.”
But more recently, in December 2002, Porter Township, Pennsylvania unanimously passed an ordinance denying corporate
claims to personhood. The Township is the first and only local government in
to deny these civil and constitutional rights to corporations. Porter Township and neighboring Rush Township have laws that govern the local dumping of
Pittsburgh-generated sludge by charging the dumping companies a “tipping fee.”
In 2000, Synagro Corporation, one of the largest
dumping companies in the nation, sued Rush Township, claiming that as a corporate citizen, the Township
violated Synagro’s 14th amendment rights. In
response, Porter Township, passed its precedent-setting ordinance claiming that
the dumping company, or any corporation within its jurisdiction, may not wield
personhood and free speech privileges.
A more high-profile challenge to corporate personhood involves a lawsuit
against Nike and its claims on third-world labor
practices. In 1998, Nike CEO Phil Knight wrote a New York Times op-ed piece
responding to criticisms of Nike’s Asian labor
practices. As was widely reported in the mainstream press in mid-April of this
year, San Francisco consumer advocate Marc Kasky
filed a lawsuit against Nike believing the company misled the public about its labor practices. Nike, however, claims that the First
Amendment protects Nike’s statements, making it irrelevant whether the
statements are true or false.
In May 2002, the California Supreme Court ruled against Nike saying its
statements were commercial speech, and can therefore be regulated by the
Federal Trade Commission. This ruling, writes Justice Joyce L. Kennard, “means
only that when a business enterprise, to promote and defend its sales and
profits, makes factual representations about its own product or its own
operations, it must speak truthfully.”
On April 26, 2003, the
Ottawa Citizen provided some pro-Nike coverage of the current case against Nike
saying, “The case began some years ago when anti-globalizers
accused Nike of exploiting workers at its factories abroad. The Nike-bashing
was unrelenting, and the company fought back.” Hartmann’s article also notes
The New York Times’ editorial support for Nike saying, “In a real democracy,
even the people you disagree with get to have their say.” That’s true says
Hartmann, but Nike is not a person—it’s a corporation.
By the release of Censored 2004, the Nike case will probably be a settled
issue. It is likely that Porter Township’s ordinance will be challenged in higher courts in the near future.
However, Hartmann’s research and writings show that the legality on which
corporate claims to personhood and free speech rights rests is dubious.
Update By Jim Hightower
Anyone seeking to preserve America's fragile democracy must first understand the scope
and magnitude of the powers aligned against it. We live in an age in which
corporations have been enthroned and corruption in high places has enabled
power and wealth to be aggregated into an increasingly smaller number of hands.
As citizens concerned with the future of human rights in a democratic republic,
it's vital that we now speak up and spread the word about "Corporate
Personhood," which lies at the heart of the challenge facing us today.
On April 23, 2003, the
U.S. Supreme Court heard oral arguments in Nike v. Kasky,
the Nike Corporation's appeal of an April 2002 California Supreme Court ruling.
In Kasky v. Nike, the California court rejected
claims by Nike's lawyers that the First Amendment immunized Nike from being
sued under state consumer protection laws (for allegedly misrepresenting facts
in a public relations campaign). The U.S. Supreme Court (where the case is Nike
Inc, et al. v. Marc Kasky since Nike is the party
appealing) likely will issue a ruling by late June on the Constitutional issue
of whether Nike can claim exemption from the California law under the First
Amendment. The Court will not consider the merits of the original lawsuit, in
which Mr. Kasky sued Nike for deceptive practices.
The story in the Hightower Lowdown received no
additional coverage by mainstream media sources. However, the Nike v. Kasky case has generated a substantial amount of interest,
although the opinions are predictable. As of May 25, 2003, four of the five largest U.S. newspapers had editorialized on behalf of the Nike
Corporation. Though all five had received submissions from nationally published
writers, none had published dissenting commentaries. The Rocky Mountain News
(#27-Denver) was alone among the top-50 papers in allowing space for a dissent
to their pro-Nike editorial. The Sacramento Bee (ranked #31) thus far is the
only paper to critique Nike's "free speech" claims in an editorial
(while arguing that the Supreme Court should dismiss Kasky's
suit on other grounds).
For more information go to:
ReclaimDemocracy.org (P.O. Box 532, Boulder, CO 80306; 303-402-0105;
Program on Corporations Law and Democracy (P.O. Box 246, South Yarmouth, MA
02664; 508-398-1145; www.poclad.org)
Alliance for Democracy (760 Main Street, Waltham, MA 02451; 781-894-1179;
©2003 Project Censored - All