Hi All,

I just got this from Mark Ritchie at WTO Watch and it's so good and to
the point of many of the problems in the US that I am copying it and
sending it.


*  *  *  *  *  *

Now Corporations Claim The "Right To Lie"
by Thom Hartmann

published on Wednesday, January 1, 2003
by CommonDreams.org

While Nike was conducting a huge and expensive PR blitz to tell people
it had cleaned up its subcontractors' sweatshop labor practices, an
consumer advocate and activist in California named Marc Kasky caught
in what he alleges are a number of specific deceptions. Citing a
law that forbids corporations from intentionally deceiving people in
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
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,
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
Bob Herbert wrote, "In a real democracy, even the people you disagree
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.
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
citizenship in an hour, rip off parts of themselves and create entirely
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
would "ban monopolies in commerce," making it illegal for corporations
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
then), and requiring that the first purpose for which all corporations
created be "to serve the public good."

The amendment didn't pass because many argued it was unnecessary:
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
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,
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
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
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.
has cost a vast amount of treasure and blood. The best blood of the
of American youth has been freely offered upon our country's altar that
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
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
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
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
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
the equal protection of the laws."

Oddly, the court had ruled no such thing. As a handwritten note from
Justice Waite to reporter Davis that now is held in the National
said: "we avoided meeting the Constitutional question in the decision."
nowhere in the decision itself does the Court say corporations are

Nonetheless, corporate attorneys picked up the language of Davis's
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
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
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,
unincorporated businesses, partnerships, and even governments, all of
have only privileges.

But with the stroke of his pen, Court Reporter Davis moved corporations
of that "privileges" category - leaving behind all the others (unions,
governments, and small unincorporated businesses still don't have
- 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
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
Clara County Supreme Court headnote, its politics, and its consequences,

for he said in his speech to the nation, delivered before a joint
of Congress: "As we view the achievements of aggregated capital, we
discover the existence of trusts, combinations, and monopolies, while
citizen is struggling far in the rear or is trampled to death beneath an

iron heel. Corporations, which should be the carefully restrained
of the law and the servants of the people, are fast becoming the

Which brings us to today.

In the next few weeks the U.S. Supreme Court will decide whether or not
hear Nike's appeal of the California Supreme Court's decision that Nike
engaging in commercial speech which the state can regulate under truth
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,
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
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
in California - Marc Kasky - who brought the original complaint against

People of all political persuasions who are concerned about democracy
human rights are encouraging other humans to contact the ACLU
(<http://www.aclu.org/feedback/feedback.cfm> or 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
Democracy! <http://www.reclaimdemocracy.org> are documenting the case in

detail on the web with a sign-on letter
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
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

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
should be restrained from political activity and wrote the dissent.

He started out his dissent by pointing to the 1886 Santa Clara headnote
implicitly criticizing its interpretation over the years, saying, "This
Court decided at an early date, with neither argument nor discussion,
a business corporation is a 'person' entitled to the protection of the
Equal Protection Clause of the Fourteenth Amendment. Santa Clara County
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
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
only in contemplation of law. Being the mere creature of law, it
only those properties which the charter of creation confers upon it,
expressly, or as incidental to its very existence. These are such as are

supposed best calculated to effect the object for which it was

Rehnquist concluded his dissent by asserting that it was entirely
that states have the power to limit a corporation's ability to spend
to influence elections (after all, they can't vote - what are they doing
politics?), saying:

"The free flow of information is in no way diminished by the
[Massachusetts] Commonwealth's decision to permit the operation of
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
the havoc wrought on the American political landscape by the Bellotti
and its reliance on the flawed Santa Clara headnote. If the Court
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
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
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
the ACLU and other pro-democracy groups to help Marc Kasky in his battle
our species' collective behalf.

Thom Hartmann is the author of "Unequal Protection: The Rise of
Dominance and the Theft of Human Rights"
<http://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.


Additional note from Paul Cienfuegos ([EMAIL PROTECTED]):

I also encourage readers to visit the following website for additional
information on the growing movement to abolish corporate personhood:

Also, Thom's book can be ordered for $26.95 (plus shipping) via my
bookstore: <http://www.100fires.com> - "Extraordinary Books for a
Planet" with 2000 titles and climbing fast.

Lastly, Democracy Unlimited stocks one of the nation's largest
of books, articles, information packets and tapes on the key topics
relating to this growing movement. For a copy of our new Resource List,
please send a SASE to Democracy Unlimited, POB 610, Eureka, CA 95502

Reply via email to