Exchange w/ ACLU regarding 1st Amendment for Corporations

[clear eye]

Dear ACLU:

Please explain it to me as I usually am good at understanding people's reasoning even if I disagree, because I CANNOT fathom the ACLU's position on corporate "personhood". The case seems overwhelming that in order to restore to the Bill of Rights its meaning and effectiveness for people, we have to stop misapplying it to the activities of corporations. I am sure the ACLU leadership is not part of that confused group of people who believe that eliminating corporate "personhood" under the law would mean abolishing corporations and ending their useful financial protections. Corporations have existed since the 1500's, long before corporate "personhood", and would do just fine long after it was gone. They'd even be economically healthier since an empowered citizenry would reduce the detrimental influence of their short-term goal oriented behavior on the overall economy. What hasn't been around as long, and must be protected for the sake of human rights, is a working, democratically-elected, representative government.

Corporations, in order to create value and accumulate resources, primarily serve to coordinate wealth with the labor of people who don't have a say in directing those businesses. Giving corporations human rights is, in effect, stealing rights from those working for corporations in order to survive. The workers are forced to support political and other public sphere activities that they may feel directly conflict with their best interests and with which they may strongly disagree.

Corporations by law must use their resources solely to generate profit from stated legal activities, and, in exchange for accepting this and other controls, their principals and investors are granted significant protection from liability for the consequences of corporate business activities. Management is not permitted to use corporate resources for altruistic purposes, except for the small amount that can be justified as a tax write-off. The public sphere activities it may engage in must be chosen for their potential to increase profits, even if the policies or politicians supported are contrary to the beliefs of individuals in management or of those who hold corporate stock. Additionally granting to corporations the same protections for political activities that are afforded individuals who use their own private resources and answer to their own consciences, diminishes the rights of people to petition their government and to elect a government representative of their interests. If a stockholder of a corporation wishes to use some of the stock's value for political activities which are prohibited to corporations, that person is free to liquidate or borrow against the equity, and use the money for their chosen political activity, either directly or by donating to an organization designed for that purpose.

Rights in the Constitution are always discussed as belonging to people, or to the people's representatives, the state and federal government--never to any other construct. Churches don't have rights; people have the right to be free of government intervention in how they choose to worship. "Assemblies" don't have rights; the individuals within an assembly have rights, including the right to assemble peaceably for any legal activity. It is likely this phraseology was chosen carefully to express the preeminence of the civil liberties of individuals, and how those rights should not be subordinated under the law to even the most admirable institution.

The ACLU's position is not and cannot be consistent even internally. Will the ACLU next sue states for discrimination for refusing to give a corporation a civil service job? Will it demand the state provide welfare benefits for a corporation unfortunate enough to lose all its assets and its means for generating income? Will the ACLU leadership interpret a corporation's "right" to bear arms to mean it can maintain a private army? Will it support a suit by stockholders who have decided their corporation should be allowed to register and vote, in addition to themselves? Will a corporate electoral block develop?

This confusion in the minds of lawyers was created by the ability of corporations to sue and be sued in court. When the legal framework for incorporation was created, the clearly delimited right and obligation to sue and be sued were deemed necessary for the purpose of conducting commerce, and so were included in state charter law by which corporations are created.

I never thought of the ACLU as a group advocating "might makes right" positions, but the decision of the leadership to support extending human rights to corporations puts it firmly in that camp. This ACLU policy stands in direct conflict with it's stated mission to advocate for the rights of people. Perhaps the membership of the ACLU will demand a reversal or a change in top personnel in exchange for continued support, or simply vote with its wallet and drop out.

Sincerely,
{Clear Eye}

Dear :

Thank you for your email. I appreciate your taking the time to share your thoughts about corporate speech with me, and I am glad to have the opportunity to respond.

The ACLU and the ACLU of Northern California filed an amicus brief in Nike v. Kasky in support of Nike because the company’s statements constituted noncommercial speech, which is protected by the First Amendment. (You may download the brief here: <http://www.aclu.org/FilesPDFs/nike.pdf>.) This view was held by other groups, including The Associated Press and the California First Amendment Coalition.

It is important that we not censor speech simply because we disagree with the speaker. Whatever we think about Nike, the company must be permitted to defend itself publicly, just as its critics must be permitted to air their complaints. The public has a right to hear all of the arguments – robust debate depends upon it. As Bob Herbert wrote in a New York Times editorial, “As much as it pains me to say it, I am not in favor of stifling speech of the loud and obnoxious and terminally exploitative Nike Corporation … The very same First Amendment that allows me to make these assertions must also allow Nike to defend itself.”

While it may be true that everything a company says broadly aims to boost the bottom line; that does not mean that anything a business says may be treated as commercial speech. Commercial speech has traditionally meant a statement that does no more than propose a commercial transaction. To extend this definition to Nike’s statements about overseas labor is to stretch it so far as to apply to virtually any public statement, impairing the business community’s ability to participate in discussion of social or economic issues, and impoverishing the value of open public discourse that the First Amendment is intended to protect.

Also, please know that the Nike case was not about granting Nike or any other corporation individual rights. It’s about two different types of speech, not the identity of the speaker. It’s about protecting vigorous debate in the public domain, and the benefits that has for everyone. Corporate free speech rights are protected for the sake of the listeners, who presumptively benefit from access to more information, rather than to promote the autonomy interests of the corporate speaker, which are generally regarded as non-existent.

{clear eye}, thank you again for writing. Whether or not we agree on this one issue, I am glad to have had the opportunity to learn your views. I also hope we might unite over the broader concern of protecting civil liberties in America, especially at this critical time.

Sincerely,
Anthony D. Romero
Executive Director
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Dear Mr. Romero:

Thank you for responding. Regarding your points:

1) I was not referring only to the Nike case; there are a series of ACLU cases from 2001 - 2005 that concern corporate speech archived on your website. The cases dealing with campaign finance reform vs. "corporate free speech" were the most disturbing. I wrote you in hopes that you would see how taking these cases conflicts with your stated mission.
2) I have to take exception to being told condescendingly "that we not censor speech simply because we disagree with the speaker." Nothing I wrote even hinted at such a simplistic, foolish opinion.
3)That Bob Herbert or an AP reporter or even a spokesperson for a "coalition", whose funding &/or membership, for all I know, may be the Nike public relations dept., believes the First Amendment applies to corporate speech doesn't make it so.
4)It's a little difficult to make sense of the 3rd and 4th paragraphs of your email, since you go back and forth declaring that you don't claim to extend individual rights to corporations, but you need to protect their First Amendment rights. Most importantly, whether or not any particular corporate speech meets your narrow definition of "commercial speech", as you, yourself acknowledge "everything a company says broadly aims to boost the bottom line" and "the autonomy interests of the corporate speaker...are...non-existent". So this speech is clearly distinct from the protected speech of individuals or organizations established to promote a point of view. It is not the "business community"'s speech (corporate CEO's individually attributed speech on any topic including commerce is fully protected) which may be restricted for the public good by being subject to court tests of truthfulness or limits to its exercise in the political sphere, but specifically representations attributed to the faceless for-profit corporation. How, exactly, do falsehoods amplified throughout the media by the combined wealth of many but not representing the opinion of any accountable person or group of people protect rather than stifle "vigorous debate in the public domain"? Your argument is especially dubious considering the inordinate power wealthy corporations have to distort coverage in the few media outlets with large audiences simply by their ability to withhold ad revenue.

As interesting as this exchange has been, as long as the ACLU maintains this position, especially regarding campaign financing, I believe I will do what I can to further civil liberties in America by contributing to the National Lawyers' Guild and to People for the American Way.

Sincerely,
{Clear Eye}