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home / ftcr / commentary

Oct 03, 2003

Rescind corporations' constitutional rights

by Jamie Court
 
The following commentary was published in the San Diego Union-Tribune on October 3, 2003:
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Fifty million American households' desire for telemarketers not to call during dinner will be put on hold if a federal judge's ruling stands. The judge found that the corporations' free-speech right trumps the individual's right to privacy and the government's power to protect it.

The First Amendment was created to protect individuals from oppression by the government, not to rescue telemarketers. Corporations only gained First Amendment rights in the courts during the last two decades. This must be reversed if large corporations are to be servants of society, not masters.

In 1976, the U.S. Supreme Court ruled in two separate cases that corporations have a First Amendment right to speak through unlimited contributions to political parties (Buckley v. Valeo) and that commercial speech is protected under the First Amendment (Virginia Pharmacy Board v. Virginia Consumer Council).

Until America's bicentennial, corporations had no free speech right. After 1976, modern corporations gained title to the first 10 amendments of the Constitution, the Bill for Rights.

First National Bank of Boston's First Amendment right to speak through money, for example, stopped state limits on corporate spending for political referendums in 1978's decision in First National Bank of Boston v. Belloti. Supreme Court Justices White, Brennan and Marshall wrote in dissent: "The State need not let its own creation consume it."

That prophetic warning haunts us today because corporations have relied on new Bill of Rights protections during the last 20 years to shirk their accountability to society.

The Fourth Amendment allowed an electrical company to avoid federal inspections under the Occupational Safety and Health Act in 1977's Marshall v. Barlow's Inc. The Fifth Amendment's double-jeopardy clause protected a textile corporation from a government retrial in a criminal antitrust action in 1976's United States v. Marshall Linen Supply Company.

Most troubling for the federal "do not call" list are Supreme Court rulings establishing that corporations' commercial speech does not require the consent of the listener. These include 1980's Central Hudson Gas & Electric Corp. v. Public Service Commission of New York and 1983's Bolger v. Youngs Drug Product Corp. -- which are used to justify junk faxing and door-to-door solicitations.

The legal rulings advancing corporations' constitutional rights during the last two decades were no accident, but a conscious strategy by big business to create historically unprecedented cultural privileges for large corporations.

The strategy was hatched in a "confidential memo" sent to the leadership of the U.S. Chamber of Commerce in 1971 by a corporate lawyer named Lewis F. Powell Jr. At the time, Powell represented corporate titans like Phillip Morris, but later in 1971 President Nixon appointed him to the U.S. Supreme Court, where he authored many of the rulings giving corporations Bill of
Rights protections.

The memo sent by Powell sounded an alarm with its title: "Attack on the American Free Enterprise System." It called on the Chamber to reverse corporate losses during the 1960s to consumer and environmental groups, as well as a muckraking media. This meant taking the offensive and promoting big business' agenda aggressively on campuses, with the media, through scholarly journals, in politics and through "neglected opportunities in the courts."

Powell advocated that the chamber seek influence over the judiciary because, "Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change." The chamber took Powell's advice on all fronts and his prophecy, with his own help, came true in the courts.

The time has come for Congress to reverse course and re-affirm the intent of the Founders. Congress should codify the framers' will by proposing a constitutional amendment that clarifies that corporations do not have First Amendment or other Bill of Rights protections. At the very least, Congress can offer a resolution that clearly states that commercial speech is subservient to the government's right to protect against invasions of privacy.

Such a declaration is vital because corporations may now have legal standing equivalent to individuals, but they do not possess the responsibilities individuals have to each other.

Corporations are not limited by time (are not born/do not die), are not socialized to distinguish right from wrong, nor can they be imprisoned.

Corporations can be fined, but often have reserves of money. They can be sued, but their legal defense teams can deplete the resources of nearly any individual who challenges them.

The impact of the legal redefinition of the corporate form made it a sovereign entity with the power to dominate people and, increasingly, the public institutions that collectively represent individuals. The time has come for Congress to say enough is enough.
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Court is author of "Corporateering: How Corporate Power Steals Your Personal
Freedom and What You Can Do About It" (Tarcher/Putnam), and is executive director
of the Santa Monica-based Foundation for Taxpayer and Consumer Rights.


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