The ACLU and Corporate Personhood

As a long time card carrying member of the ACLU I am chagrined, to put it mildly. The ACLU has refused to bring the corporate personhood issue before the Supreme Court.
The aspect of corporate personhood contested was its right to free speech. Understanding that all of our rights are not absolute, for example you are not free to cry fire in a crowded theatre if no fire exists, the question was whether in this case a corporation, like you and me, has its speech protected by the Constitution. The case concerned Nike Corporation's right to lie in its published denial of unfair labor practices. The clearest statement I have found is one in which the ACLU was asked why, despite the Nike corporation's lying in its response to criticisms of its labor practices, it was nonetheless supported by the ACLU in its contention that its right to free speech would be abrogated if it was prevented from lying in describing its labor practices. Keep in mind that lying, like other forms of speech is protected except in specific cases, otherwise we would all be in jail. The above referenced statement can be found at http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=226x6379.
The full ACLU Supreme Court amicus brief can be downloaded at http://www.aclu.org/content/aclu-amicus-brief-nike-inc-v-kasky.

The ACLU's amicus brief argued that the law made a distinction between commercial speech e.g. false advertising is not protected speech, and non-commercial speech and that in this case Nike was defending itself against accusations by others and hence was not engaged in commercial speech. An argument that the ACLU was wrong in its amicus brief can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374003. The gist of this argument is that the ACLU was mistaken on at least two counts. Number one was assuming that lying by a corporation defending itself against evidence of its poor labor practices was not commercial speech and hence was protected by the free speech clause of the Constitution. This could have gone to the heart of the corporate personhood issue. Corporations exist for one purpse only; to make profit. Hence they are amoral entities at best and pernicious at worst. The foundation of law, however, is morality. For instance motive is always a concern in establishing guilt. Number two was that in so doing the Court was continuing the practice of "First Amendment Formalism," which consists of using the narrowest interpretation of the law to decide cases rather than to consider the real world which the law is presumably intended to address. It is the latter issue that I want to consider.

As Justice Oliver Wendell Homes observed, "The life of the law has not been logic: it has been experience." At a time when this nation and the planet it inhabits are facing unprecedented problems, we have a Supreme Court dedicated to a formalist approach to law allowing it to disregard the plight our citizens face. The legal prospects for the changes our times demand and progressives seek are substantially less than promising. One glimmer of hope may be Justice Sotomayor who raised the corporate personhood issue in a recent case. It is interesting to note and disheartening to contemplate that in dealing with gross racial injustice it took almost exactly 100 years to break the hold of the South on this issue and that it was the Supreme Court that did it. As usual, rather than talk racial bigotry, the racists and their allies called the Court "activist." It is also interesting to note that the Supreme Court, frequently in the defense of property rights, was a major obstacle to President Franklin Roosevelt's attempt to deal with mass unemployment and its consequences. The problem became so acute that Roosevelt sought to increase the size of the Court so more liberal justices could be appointed.

But why is the Supreme Court sometimes unwilling to address major needs of our society as it is currently and during Roosevelt's New Deal and so responsive to society's need as when it took on the civil rights issue? I think there is evidence for a correlation between maldistribted wealth and legal formalism. When the nation's wealth is predominantly in the hands of a few the legal system becomes more formalistic. When the wealth is more evenly distributed the courts are more inclined to address society's major issues whether economic racial or cultural. For example, when there was a gross maldistribution of wealth preceding the Great Depression, for example the muckrakers attacks on Standard Oil or Upton Sinclair's attack on the railroads in California, the courts were rigidly unresponsive to the needs of society at large. Conversely, wealth was much more evenly distributed when the Supreme Court took on the civil rights issue that politicians had failed to deal with for so long. This is, in my judgment, more than a mere correlation when the power of wealth is fully understood. If this analysis is correct the Supreme Court becomes one more instrument of the wealthy.

I do not think, as may be obvious from some of my previous comments, that we are yet willing to understand and acknowledge the depth and breadth of the pernicious influence of excessive wealth on a democracy. It is so dangerous that the amount, concentration and control of wealth should be regulated. You may be familiar with the writings of David Korten, e.g. When Corporations Rule the World. He has a new book out titled Agenda for a New Economy: From Phantom Wealth to Real Wealth in which wealth distribution is a fundamental issue. He, as I have previously argued, sees the problem of pernicious wealth as both its size and its unrelatedness to actual production of goods and services. By holding wealth close to production society as a whole gets the benefits and is in a better position to control excessive wealth by breaking up dominating corporations as was done with AT&T. His is a "Main Street" capitalism as opposed to a "Wall Street" capitalism. I am finding the book intriguing, although I have reservations as to whether the impact of technology is consistent with his call for smaller units of political and social organization.

Bob Newhard