Inkwell: Authors and Artists

    
As to the "what rights should [fill in the blank for institutions]
have," my answer is that all institutions should (and most do) have
only privileges and none have rights - rights are the sole domain of
humans.  As to what the privileges should be, I don't take a postition
other than to say that when humans only again have human rights, then
it will be possible for humans in a democracy to determine through an
uncontaminated democratic process what privileges they/we want to grant
to which types of institutions.
  

    
"Human rights are for humans." 
Dolphins, whales, gorillas, chimpanzees...

Vulcans, Klingons, Romulans...

The essential distinguishing characteristic of a "human" is that it
posesses self-awareness and free will.  Argue those all you want.  If
you invalidate them, you invalidate all "natural" rights and reduce all
"human" rights to contract.

If it can be demonstrated by a Turing test that an entity cannot be
distinguished from a human, then then entity is accepted as human.  We
have for almost 50 years joked about the mail we get from companies. 
That puts corporations in the starting blocks for a race to humanity.

If, as above, you can invalidate self-awareness and free will and
therefore "natural" rights, then corporations can -- and indeed do --
have all the rights they can contract for.

Has anyone participating here taken tinymonster's pointer in 20 and
visited the AI topic in Science?  Adam Link awaits your verdict.  (and
R. Daneel Olivaw stands in the back of the courtroom to hear it.)
  

    
I don't think my question was answered, other than perhaps to label as
"privileges" the rights possessed by corporations.  I guess if it's a
"privilege", the right can be taken away by legislative fiat.  So:  How
about the most basic right for any business or any person in business:  The
right not to be deprived of one's property without due process of law?  Of
course, "due process" does not preclude taxing corporations according to a
uniform schedule.  But it would preclude taking property by eminent domain
and not paying for it.  In a similar vein, equal protection of the laws
would not preclude taxation, but it would preclude deciding to tax General
Motors at a 55% rate while taxing Ford at a 20% rate on the same income.
Assuming that corporations are in fact a useful and essential method of
nurturing capital and producing wealth and employment, what would be the
effect on the economy if every corporation knew that its property was at
risk if, say, it attracted unfavorable publicity?  Heck, instead of suing
Chevron for an oil spill, Congress should just pass a law confiscating 10%
of its assets.  If corporations do not have rights, what reason is there to
invest in them, and therefore in the economy?

By the way, what authority is there for the proposition that unions and
churches do not have rights?  Churches are generally corporations or can
choose to be treated as if they were corporations.  Unions are generally not
incorporated, but it is hard to imagine what rights they cannot exercise
that a corporation can exercise, *as an organization*.  They have bank
accounts, own property, can sue and be sued, can speak as an organization,
and if there are differences in regulation, it is because Congress has
thought that a membership organization owes different kinds of obligations
to its members than a corporation owes to its shareholders.  Union members
can't sell their memberships to a corporate raider if they are dissatisfied
with the way the union is being run, and need more protection.
  

    

 > my answer is that all institutions should (and most do) have
 only privileges and none have rights - rights are the sole domain of
 humans

 If corporations are to have privileges rather than rights, what protects
 them from the whims of politicians? I know that in today's political
 climate, corporations have more than enough clout to do that.

 But if they had only privileges, much of that clout would  dissipate.

 I tend to agree that something should be done to mitigate the power
 (political and economic) that corporations hold. I just think that
 we need to be careful about what that "something" is.

 Do we need a "Bill of Corporate Privileges"?
  

    
I think the point is that if they are given the priviledge to operate in 
the public good and are found to be operating against the public good, 
they lose their priviledge.  This is the same thing that would happen to 
you if you are for example convicted of drunk driving.  In fact a whole 
lot of it happens if you are charged with drunk driving.

It would certainly add some discussion to the board meetings, I think, 
if one of the outcomes of an action would be the termination of the 
business due to loss of charter.  
  

    
Why isn't there a death penalty for corporations? 

A simple question, but one that exposes a flaw in 'equating' persons
and corporations.  The same flaw you find when you unravel the endgame
of "But what happens when the "person" lives forever?"

The advantage of accumulating equity.   

A reverse approach to the solution.
  
The "four-year-life-span" solution to the replicant problem in 
"Blade Runner."  The Tyrell Corporation exercised it's power, it's
advantage, over it's creation, it's tool.  
Very simply, we-living-persons can exercise our power, our advantage,
over our creations, our tools, and apply a containment strategy to the
potential malevolence of rogue corporations.
  
If we don't use our leverage, we'll share the fate of the replicants,
and be reduced to the caricature "more human than human."
  

    

The federal sentencing guidelines have a "corporate death penalty," FWIW.

If your state doesn't have one -- get one!
  

    
A corporate death penalty?  For what crimes, Jack?
Has it ever been exercised?
  

    

Any corporate crime, if it causes enough "loss," can merit the corporate
death penalty.  Put simply, if the criminal act(s) cause enough harm (which
is measured in dollars under the guidelines) such that restitution and the
fine far exceed the company's value, the court can essentially sentence it
to "death" by ordering its assets forfeit.  Payment of restitution has
priority, then any tax liabilities, then the criminal fine, then other
creditors, etc.

Sort of like a forced bankruptcy imposed as part of a criminal proceeding.
  

    
leaving the option of "buying your way out" in a much larger sampling
of instances?
  

    
"nothing that the god of biomechanics won't let you into heaven for"
                                     
I would love to see that established as the corporate equivalent of
the "may god have mercy on your soul" benediction.  [love that scene!]
  

    
This is actually a large issue.  Prior to the chartermongering era of
the 1890s, it was quite common for corporations that broke the law to
get a death sentence - the revocation of their charter.  Also,
stockholders, directors, and officers could, in many states, be
personally and criminally held liable for the actions taken by the
corporation.  Although these last were rare laws, nearly all states had
laws that stockholders were responsible for wages even in the event of
bankrupcy.  

There's a movement in California to get the Attorney General to
de-charter one of the big oil companies for their crimes.  The problem
is that de-chartering is probably not the most useful way to deal with
corporate crime any more; it punishes innocent employees who lose their
jobs when the corporation dissolves, yet the stockholders and officers
usually bail out okay, keep their assets intact, and reconstitute a
new corporation.  

The movement to require state corporate charter laws to include
language as they did in the 18th century that the corporation must
first serve its community is picking up some traction, as is the
movement to end corporate personhood.  I can post a piece I wrote about
Porter Township if there's an interest here in that.  And there's a
ton of good information about corporate personhood in the links off
www.unequalprotection.com and at www.reclaimdemocracy.org.  

Thom 
  

    

Indeed, but de-chartering is the responsibility of the state in which the
company is incorporated.  A state attorney general can of course revoke the
corporation's license to business in that state, but can't kill the multi-
state-headed hydra.  However, states that emulate a federal sentencing
guidelines scheme after the U.S. sentencing guidelines -- not that I'd ever
advocate such a thing, but it has it's attraction -- could conceivable put a
multinational corporation out of business for sufficiently egregious
conduct.

It's not just breaking the corporation's sword and tearing off its
epaulettes; it's putting its head in the guillotine and cutting the rope.
  

    
something akin to separation of corpus and pate
  

    
Interesting.  So far as I know, most if not all American corporations
are incorporated in one single state (Delaware for about half of the
Fortune 500), and are licensed to do business "as a foreign
corporation" in every other state.  In the California case, that
particular oil company is incorporated in California, which is why that
state's AG is being pressed.  
  

    
Delaware!?  Who knew.
  

    
I never completely understood the Delaware thing, Thom. Is there some tax 
advantage if you file there?
  

    
Through most of the 18th and 19th centuries, states were moving to
restrict corporate activities by placing limits on the term,
activities, and powers a corporation could take in their charter of
incorporation.  

When Ohio broke up the Standard Trust in 1892, Rockefeller and other
corporate giants with similar problems began looking for states where
they could re-charter their corporations without all the restrictions
that Ohio and most other states had placed on them. 

New Jersey was the first state to engage in what was then called
“chartermongering” – changing its corporate charter rules to satisfy
the desires of the nation’s largest businesses – and today is still one
of the most liberal of all states with regard to corporate charters. 
In 1875 its legislature abolished maximum capitalization limits, and in
1888 the New Jersey legislature took a huge and dramatic step by
authorizing – for the first time in the history of the United States –
companies to hold stock in other companies.

In 1912, New Jersey Governor Woodrow Wilson was alarmed by the
behavior of corporations in his state, and “pressed through changes
[that took effect in 1913] intended to make New Jersey’s corporations
less favorable to concentrated financial power.” 

As New Jersey began to pull back from chartermongering, Delaware
stepped into the fray, by passing in 1915 laws similar to but even more
liberal for corporations than New Jersey’s.  

Delaware continued that liberal stance to corporations, and thus, as
the State of Delaware says today, “More than 308,000 companies are
incorporated in Delaware including 60 percent of the Fortune 500 and 50
percent of the companies listed on the New York Stock Exchange. The
Delaware Corporation Law, the Court of Chancery, and the customer
service-oriented staff at the Division of Corporations are all sound
reasons why Delaware leads the nation as a major corporate domicile.” 

As Delaware, and then New Jersey, threw out old restrictions on
corporate behavior, allowing corporations to have interlocking boards,
to live forever, to define themselves for “any legal purpose,” to own
stock in other corporations, and so on, corporations began to move both
their corporate charters and, in some cases, their companies to the
chartermongering states.  By 1900, trusts for everything from ribbons
to bread to cement to alcohol had moved to Delaware or New Jersey,
leaving 26 corporate trusts controlling, from those states, more than
80 percent of production in their markets. 

The result was a national frenzy of chartermongering: between 1900 and
1970, in order to “remain competitive,” nearly all U.S. states have
rolled back their state constitutions or laws to make it easier for
large corporations to do business in their states without having to
answer to the citizens of the state for what they do or how they do it.
  

    
<29> >>" If corporations are to have privileges rather than rights,
what protects them from the whims of politicians? I know that in
today's political climate, corporations have more than enough clout to
do that.
But if they had only privileges, much of that clout would  dissipate.
I tend to agree that something should be done to mitigate the power
(political and economic) that corporations hold. I just think that
we need to be careful about what that "something" is."
   ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
..."what protects them from the whims of politicians" -- [??!!] huh?

For much of the commentary, <1> thru <29>, it seems to me that we've
been distracted by some form of pro-corporate side-tracking.  
Anyone else get/share that feeling? 

 Monbiot speaks more clearly, directly, to the real issues raised.

"CORPORATIONS BEHAVE AS IF THEY ARE MORE HUMAN THAN WE ARE" 
by George Monbiot - The Guardian of London, 10/5/00

                          www.nancho.net/corperson/cpmonbio.html
    ....
"Human beings, you might have thought, are animate, bipedal creatures
a bit like you and me. But the lawyers would have it otherwise. Big
companies might not breathe or speak or eat (though they certainly
reproduce), but they are now using human rights laws to claim legal
protections and fundamental liberties. As their humanity develops, so
ours diminishes. 
    ....
It is a concept developed in the US. The 14th amendment to the
constitution was introduced in 1868 with the aim of extending to blacks
the legal protections enjoyed by whites: equality under the law, the
right to life, liberty and the enjoyment of property. By 1896, a series
of extraordinary rulings by a corrupt, white and corporate-dominated
judiciary had succeeded in denying these rights to the black people
they were supposed to protect, while granting them instead to
corporations. 

Though black people eventually reclaimed their legal protections,
corporate human rights were never rescinded. Indeed, while they have
progressively extended the boundaries of their own humanity, the
companies have ensured that ours is ever more restrained. 

Firms in the US have argued that regulating their advertisements or
restricting their political donations infringes their "human right" to
"free speech." They have insisted that their right to the "peaceful
enjoyment of possessions" should oblige local authorities to grant them
planning permission, and prevent peaceful protesters from gathering on
their land. At the same time, however, they have helped to ensure that
the "social, economic and cultural" rights, which might have allowed
us to challenge their dominance, remain merely "aspirational." As the
solicitor Daniel Bennett has pointed out, article 13 of the European
Convention, by which we could have contested the corporations' absolute
control of fundamental resources, has been deliberately excluded from
our own Human Rights Act. 

The rise of corporate human rights has been accompanied by an erosion
of responsibilities. Limited liability allows firms to shed their
obligations towards their creditors. Establishing subsidiaries —
regarded in law as separate entitles — allows them to shed their
obligations towards the rest of us. And while they can use human rights
laws against us, we can't use human rights laws against them, as they
were developed to constrain only the activities of states. As far as
the law goes, corporations are now more human than we are. 

The potential consequences are momentous. Governments could find
themselves unable to prevent the advertising of tobacco, the dumping of
toxic waste or the export of arms to dictatorships. Yet in Britain the
public discussion of this issue has so far been confined to the pages
of the Stornoway Gazette. 

The creatures we invented to serve us are taking over. While we have
been fretting about the power of nanotechnology and artificial
intelligence, our domination by bodies we created but have lost the
means to control has already arrived. It is surely inconceivable that
we should grant human rights to computers. Why then should they be
enjoyed by corporations?" 
  

    
More... to the point:
A Critical Review of Mokhiber and Weissman's 
CORPORATE PREDATORS  by Charles Reid
                 www.nancho.net/corperson/predator.html

"The Fourteenth Amendment to the U.S. Constitution stipulates that "No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws." 

In the 1886 Supreme Court case, Santa Clara County v. Southern Pacific
Railroad Co., the Court declared that a corporation was a "person" as
interpreted by the Fourteenth Amendment. In a preface to the Court's
argument, Chief Justice Morrison R. Waite observed that all the
Justices shared the opinion that the provisions of the Fourteenth
Amendment that applied to persons also "applied to these corporations,"
the corporate defendants affected by the case before the Court. 

This 19th Century decision set a momentous precedent. It gave an
abstract paper construct, a corporation, the legal rights of a
"person," though without binding these legal persons with the same
social responsibilities communities place on individual human beings. 

Four score and 14 years later, the Court de facto extended the
progressively enhanced legal empowerment of corporations, enabling them
finally to design contracts that supersede and nullify an individual
human being's protections under the U.S. Constitution's Bill of Rights.


Not surprisingly, it was a government agency, namely, the CIA, that
pioneered the use of employment contracts to limit the fundamental
freedoms of American citizens. In Snepp v. the CIA (1980), the Court
upheld an injunction enjoining Snepp from publishing any work
concerning the CIA or its activities without pre-publication review by
the CIA. 

The Agency had sued ex-agent Frank Snepp for publishing his book,
"Decent Interval," without submitting it to the CIA for pre-publication
review. Although the book did not contain any information that was not
already part of the public record, when Snepp entered the CIA, he
signed a secrecy contract in which he promised not to publish any
information or material relating to the agency without prepublication
approval. The Court found that Snepp had not only violated his
contract, but also breached a fiduciary duty to the government. It
imposed a "constructive trust" on the proceeds of his book. Thus, all
the money Frank Snepp received from publishing his book had to be
turned over to the federal government. 

Today, corporations are using the "contract tool" to nullify the
rights of citizens under the Constitution of the United States. The
best example of this occurs when insurance companies require patients
to "waive" their Constitutional rights to due process and submit to
"arbitration" in a dispute with a doctor covered by the insurer. This
de facto deprives the human patient of immediate legal due process as
guaranteed by the same Fourteenth Amendment that gave life to paper
corporations. 

Through the years and a series of corporate-friendly, perhaps socially
irresponsible decisions, the Supreme Court has created a horde of
monstrous predators, legal Dr. Jekyll/Mr. Hydes."  .... 
  

    
further:

  ....  "Mokhiber and Weissman's book, "Corporate Predators," is
important for the information it contains about impact corporations
have on you and I, our communities and the world. 
Russell Mokhiber is editor of the "Corporate Crime Reporter." Robert
Weissman is editor of the "Multinational Monitor." The authors' agenda
is clear, and "Corporate Predators" is spiced with the kind of rhetoric
one would expect from writers reporting on the evils of corporations.
But you can ignore the rhetoric, if you want. Facts speak for
themselves.   ....
  ....  "Corporate Predators" contains facts and information about
corporations that rarely reaches the general public in a unified,
coherent way. And the public can change the law, once people grasp the
problem and unify to solve it. 
"Corporate Predators" exposes the problems in monitoring corporate
crimes, for example. In "No Mind, No Crime," the authors write, "While
street crime is reportedly being brought under control in America's
major cities, all indications are that corporate crime and violence
continue to skyrocket.    ....
   ....  "The FBI does not issue a yearly "Corporate Crime in the
United States" report, despite strong evidence indicating corporate
crime and violence inflicts far more damage in society than all street
crime combined." Indeed, the FBI "Crime in the United States" report
ignores corporate and white-collar crimes such as pollution,
procurement fraud, financial fraud, public corruption and occupational
homicide, while it does document murder, robbery, assault, burglary,
and other street crimes."

 ***  and here's a good one: 

"The authors report in "Brinkley Shills for Corporate Criminals" that
in 1996 Archer Daniels Midland (ADM) pled guilty to criminal price
fixing and paid a $100 million fine. ADM hired David Brinkley to film a
series of TV promos to repair the company's image. Our vocabulary has
no concept of working for a corporate felon." 
  

    
Here's a FAQ that's published in my book that answers several of the
questions posted here quite succinctly.  Hopefully it'll help:

                Political scientist William P. Meyers  has written the following
frequently asked questions regarding the revocation of corporate
personhood, which he has kindly granted us permission to reprint:

        What would be the immediate effect of revoking corporate personhood?

        The only immediate effect of revoking corporate personhood, either at
the state level or by the Supreme Court, would be to cause the legal
status of corporations to revert back to that of artificial entities.
(We should refuse to use the old terminology of artificial persons.)
They could still be represented in courts by attorneys and would be
subject to the law and taxation.

                However, a whole body of Supreme Court decisions would have to be
re-examined. The ability of States, when granting or renewing corporate
charters, to restrict harmful activities of corporations would be
greatly enhanced. New legislation to protect the environment, workers,
small businesses, and consumers could be enacted without worrying that
it would be struck down by the Supreme Court.
        
        How would small businesses be affected?

        Small, incorporated businesses would become artificial entities under
the law. Most small businesses have gained no meaningful advantage
from corporate personhood. Small businesses do not have the kind of
money it takes to corrupt the political process that large corporations
have. Small businesses would be better situated to protect their
interests since laws favoring local businesses over national and
international corporations would become legal.
        
        If corporations can't lobby, how can they get laws that are fair to
them?

        Revoking corporate personhood would not immediately prevent
corporations from lobbying, but it would allow laws to be passed (and
enforced) that would restrict corporate lobbying and campaign
contributions. If a state legislature or Congress is considering
legislation that affects a particular industry they would be able to
hold hearings and interrogate corporate representatives. If a
corporation feels its needs a change in the laws, not for its own
profits but in order to insure competition or public safety, it could
petition the legislature to hold such a hearing.
        
        What about past harms done by corporate personhood?
        
        That is an interesting question with no certain answer. The
Constitution prohibits ex post facto laws (laws that punish for deeds
committed before the law was written), and properly so. However,
revoking corporate personhood does not create an ex post facto law. It
may be possible to force corporations to rectify damage they did to the
environment during the era of corporate personhood.
        
        Would the media lose its freedom of the press and free speech?
        
        The ruling that corporate ads on political and social issues is free
speech could be overturned, but the corporate media would continue to
have freedom of the press. New legislation would be needed to restrict
corporations to ownership of a single radio or TV station, newspaper,
or magazine and to insure that individual and non-corporate voices
could be heard as well.
        
        How will revoking corporate personhood affect non-profit
corporations?
        
        Non-profit corporations would continue to operate as the artificial
entities that they are. However, it would be possible to restrict
for-profit corporations from working for corporate interests.
        
        Why don't unions have corporate personhood?
        
        Unions don't have corporate personhood, even though they are also,
legally, artificial entities, because unions have never fought to get
it. Unions have largely avoided the court system, correctly seeing it
as the home court of their enemies.
        
        Why do you want to restrict the freedom of stockholders and people
who work for corporations?
        
        This is a trick question. Corporate lawyers and propagandists will
try to get people who work for corporations to support corporate
personhood by lying to them about the effects of revocation. In fact
individuals, whether they work for corporations or not, will retain all
of the freedoms recognized in the constitution. In addition,
individuals will have their freedom enhanced by not having their
liberty overpowered by the rule of corporations. Only the artificial
entity of the corporation will be redefined to have restrictions on its
liberty.
        
        Wouldn't we lose the power to tax and regulate corporations?
        
        In the art of lying it is hard to surpass corporate lawyers. They
have managed to place in the minds of law students, in the texts of
some law books, and in the public mind, the idea that corporate
personhood is necessary to bring corporations under rule of law. This
is such a big lie it is amazing that they can tell it with a straight
face. Corporations were taxed when they were artificial entities, long
before they were granted personhood. They were more subject to the rule
of law, not less, before receiving personhood. Read up on the history;
don't be fooled again.
  

    
Thom, thanks for the excerpt.

These two can't be overstated: 

   "Why do you want to restrict the freedom of stockholders 
    and people who work for corporations?"

"This is a trick question. Corporate lawyers and propagandists will
try to get people who work for corporations to support corporate
personhood by lying to them about the effects of revocation. In fact
individuals, whether they work for corporations or not, will retain
all of the freedoms recognized in the constitution. In addition,
individuals will have their freedom enhanced by not having their
liberty overpowered by the rule of corporations. Only the artificial
entity of the corporation will be redefined to have restrictions on
its liberty."
        
   "Wouldn't we lose the power to tax and regulate corporations?"
                
"In the art of lying it is hard to surpass corporate lawyers. 
They have managed to place in the minds of law students, in the texts
of some law books, and in the public mind, the idea that corporate
personhood is necessary to bring corporations under rule of law. 
This is such a big lie it is amazing that they can tell it with a
straight face. Corporations were taxed when they were artificial
entities, long before they were granted personhood. They were more
subject to the rule of law, not less, before receiving personhood. Read
up on the history; don't be fooled again."
  

    
Speaking of the devil.  Fox/Monsanto/Bovine Growth Hormone. 
 
"The news organization owned by media baron Rupert Murdoch, argued the
First Amendment gives broadcasters the right to even lie or
deliberately distort news reports on the public airwaves"

"JURY VERDICT OVERTURNED"   www.foxbghsuit.com/

... "America’s milk supply has quietly become adulterated with the
effects of a synthetic hormone (bovine growth hormone, or BGH) secretly
injected into cows… pressure from the hormone maker Monsanto led Fox
TV to fire two of its award-winning reporters and sweep under the rug
much of what they discovered but were never allowed to broadcast. 
After a five-week trial and six hours of deliberation which ended
August 18, 2000, a Florida state court jury unanimously determined that
Fox "acted intentionally and deliberately to falsify or distort the
plaintiffs' news reporting on BGH."  In that decision, the jury also
found that Jane's threat to blow the whistle on Fox's misconduct to the
FCC was the sole reason for the termination... and the jury awarded
$425,000 in damages which makes her eligible to apply for reimbursement
for all court costs, expenses and legal fees.
Fox appealed and prevailed February 14, 2003 when an appeals court
issued a ruling reversing the jury"

"Court Reverses Ruling on Jane Akre's rBGH Suit"
            http://organicconsumers.org/rbgh/akre022103.cfm

... "In overturning the jury on what amounts to a legal technicality,
the court did not dispute the heart of Akre's claim, that Fox pressured
her to broadcast a false story to protect the broadcaster from having
to defend the truth in court, as well as suffer the ire of irate
advertisers.
Nonetheless, the station aired a report in wake of the ruling saying
it was "totally vindicated" by the verdict.
The "threshold issue," the court wrote-and all it ruled upon--was
whether the technical qualifications for a whistleblower claim were
ever met by Akre.
In Florida, to file such a claim, the employer's misconduct must be a
violation of an adopted law, rule or regulation. Fox argued from the
first-and failed on three separate occasions in front of three
different judges-to have the case tossed out on the grounds there is no
hard, fast, and written rule against deliberate distortion of the
news.
In essence, the news organization owned by media baron Rupert Murdoch,
argued the First Amendment gives broadcasters the right to even lie or
deliberately distort news reports on the public airwaves.
In it's opinion, the Court of Appeal held that the Federal
Communications Commission position against news distortion is only a
"policy," not a promulgated law, rule, or regulation."
  

    
Yep.  This is the core of the Nike v. Kasky case, too.  Here's
something I wrote on it:

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.