Boston V Belloti 1978
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merri ok
see corp person
see powell
see thom h
see rehnquist nike v kasky
see Buckley 1976
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7 24 corp person tag
Corporate Personhood
yikes wow thom says corp person is fundamental clevAGE
Trump's Far-Right Army Is Threatening Bloodshed. Believe Them.
We must not only resist, but prevail. If we do not, it will be nearly impossible to reverse the course that America’s right-wing billionaires have set us on.
Thom Hartmann
Jul 05, 2024
KEEP READING
OPINION
PROJECT 2025
Trump's Far-Right Army Is Threatening Bloodshed. Believe Them.
We must not only resist, but prevail. If we do not, it will be nearly impossible to reverse the course that America’s right-wing billionaires have set us on.
Jul 05, 2024Common Dreams
Kevin Roberts, who heads the Heritage Foundation (largely responsible for Project 2025) just implicitly threatened Americans that if we don’t allow him and his hard-right movement to complete their transformation of America from a democratic republic into an authoritarian state, there will be blood in the streets.
“We’re in the process of taking this country back,” he told a TV audience, adding:
“The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I come full circle on this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
He’s not wrong. America has been changed as a result of a series of corrupt rulings by Republicans (exclusively; not one of these rulings has been joined by a Democratic appointee) which have changed America’s legal and political systems themselves.
As Roberts notes, this is really the largest issue we all face, and our mainstream media are totally failing to either recognize or clearly articulate how radically different our country is now, how far the Republicans on the Court have dragged us away from both our Founder’s vision and the norms and standards of a functioning, modern democratic republic.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
First, in a series of decisions — the first written by that notorious corporatist Lewis Powell (of “Powell Memo” fame) — Republicans on the Court have functionally legalized bribery of politicians and judges by both the morbidly rich and massive corporations.
This started with Powell’s 1978 Bellotti opinion, which opened the door (already cracked a bit) to the idea that corporations are not only “persons” under the Constitution, but, more radically, are entitled to the human rights the Framers wrote into the Bill of Rights (the first ten amendments).
Using that rationale, Powell asserted that corporations, like rich people (from the Buckley decision that preceded Belottiby two years), are entitled to the First Amendment right of free speech. But he took it a radical step farther, ruling that because corporations don’t have mouths they can use to speak with, their use of money to spend supporting politicians or carpet-bombing advertising for a candidate or issue is free speech that can’t be tightly regulated.
Citizens United, another all-Republican decision with Clarence Thomas the deciding vote (after taking millions in bribes), expanded that doctrine for both corporations and rich people, creating new “dark money” systems that wealthy donors and companies can use to hide their involvement in their efforts to get the political/legal/legislative outcomes they seek.
Last week the Republicans on the Court took even that a huge step farther, declaring that when companies or wealthy people give money to politicians in exchange for contracts, legislation, or other favors, as long as the cash is paid out after the deed is done it’s not a bribe but a simple “gratuity.”
So, first off, they’ve overthrown over 240 years of American law and legalized bribery.
Last week they also gutted the ability of federal regulatory agencies to protect average people, voters, employees, and even the environment from corporations that seek to exploit, pollute, or even engage in wage theft. This shifted power across the economic spectrum from a government elected by we the people to the CEOs and boards of directors of some of America’s most predatory and poisonous companies.
Finally, in the Trump immunity case, the Court ruled that presidents are immune from prosecution under criminal law, regardless of the crimes they commit, so long as they assert those crimes are done as part of their “official” responsibilities. And who decides what’s “official”? The six Republicans on the Supreme Court.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
It’s almost impossible to overstate the significance of this, or its consequences. We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
In America 2.0, there is no right to vote; governors and secretaries of state can take away your vote without even telling you (although they still must go to court to take away your gun).
They can destroy any politician they choose by simply pouring enough cash into the campaign system (including dark, untraceable cash).
The president can now go much farther than Bush’s torturing and imprisoning innocent people in Gitmo without legal process: he can now shoot a person on Fifth Avenue in plain sight of the world and simply call it a necessary part of his job. Or impoverish or imprison you or me with the thinnest of legal “official” rationales.
We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
America 2.0 is not a democracy; it’s an oligarchy, as I wrote about in The Hidden History of American Oligarchy. The South has finally — nearly — won the Civil War.
While it will be months or more likely years before all of these new powers the Republicans on the Court have given the president, rich people, and corporations begin to dawn on most Americans, they will, step-by-step transform this country into something more closely resembling Hungary or Russia than the democracies of Europe and Southeast Asia.
The only remedy at this late stage in this 50+ yearlong campaign to remake America is a massive revolt this fall at the ballot box, turning Congress — by huge majorities — over to Democrats while holding the White House.
If we fail at this, while there will be scattered pockets of resistance for years, it’ll be nearly impossible to reverse the course that America’s rightwing billionaires have set us on.
There has never been a more critical time in the history of our nation outside of the last time rich oligarchs tried to overthrow our democracy, the Civil War. Like then, the stakes are nothing less than the survival of a nation of, by, and for we the people.
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omfg
no lnx
Home | Breathing is now a political act — thanks to the GOP
Thom Hartmann April 24, 2025
Breathing is no longer a basic human right in America: it’s now a political battleground.
Over 156 million Americans are inhaling toxic air today, not because we don’t know how to fix it, but because the Republican Party has decided that clean air is something only Democrats care about.
While children gasp through inhalers and wildfires choke entire cities, Trump and his fossil-fueled allies are dismantling environmental protections with surgical cruelty. This isn’t ignorance — it’s policy. It’s profit. It’s war on your lungs, your family, and your future.
The American Lung Association just released a new report documenting how over 156 million Americans are breathing poisonous air. Trump and the Republicans don’t give a damn; if anything, they’re enthusiastic about it.
Fossil fuel billionaires and the industry that made them rich have been major patrons of Republican politicians ever since Ronald Reagan floated into the White House in 1980 on a tsunami of oil and coal money. Donald Trump is no different.
Claiming that climate science research “promotes exaggerated and implausible climate threats, contributing to a phenomenon known as ‘climate anxiety,’ which has increased significantly among America’s youth,” the Trump regime last week cut millions from a Nobel Prize winning scientist’s program’s collaboration between the National Oceanic and Atmospheric Administration (NOAA) and Princeton University.
Last month they also attacked the Renew America’s Schools program that provides funding for more than 3,400 schools across the country to install heat pumps, insulation, electric school busses, and other efforts to reduce their carbon footprints.
Lost in the news of Trump’s latest stock market pump-and-dump scheme for insiders and his kidnapping legal US citizens for foreign rendition, they also announced last Friday that they were zeroing out funding for the nation’s premiere annual climate change analysis, the U.S. Global Change Research Program, and the 13 agencies that collaborate on the National Climate Assessment. The report is mandated by Congress, but Trump is ignoring the law.
This follows by a few weeks EPA Administrator Lee Zeldin’s announcement that the official position of the US government’s warning of climate change will soon be reversed. As Politico reported on March 12th:
“President Donald Trump’s environmental chief announced Wednesday that he will seek to overturn the federal government’s core scientific finding about the dangers of greenhouse gases — along with 30 other key regulatory actions stretching back years or decades.”
The report added that that Zeldin will also be gutting CO2 limits for coal-fired power plants, tailpipe emissions, methane leaks, and ending a program requiring major industries to report their CO2 emissions. In other words, “To hell with the health of our children and our climate; there’s money to be made and campaign contributions to be solicited!”
Tuesday of last week, Trump signed an executive order declaring war on individual state initiatives to dial back carbon emissions, ordering the Department of Justice to “stop the enforcement” of such state laws. The EO specifically attacked “climate Superfund” programs in Vermont and New York that would have required fossil fuel companies to reimburse those states for damages caused by climate change-fueled storms, as well as going after California’s cap-and-trade carbon credit auctions.
Fossil fuel oligarchs are, no doubt, breaking out the champagne. And the dark money for attack ads against Democrats in 2026 and 2028.
This widespread and wholesale destruction of programs intended to research and fight climate change will directly damage the future of young people in America, but Trump and the GOP frankly don’t give a damn. There are, after all, big bucks to be made and campaign contributions to be collected.
This insanity began in its modern form when five corrupt Republicans on the US Supreme Court ruled in their 1978 Bellotti decision (written by Lewis Powell) that money was the same thing as “free speech,” protected by the First Amendment, and that corporations are “persons,” protected by the Bill of Rights and the 14th Amendment. That floated Reagan into office in 1980 on a tsunami of oligarch money, as I noted in The Hidden History of the Supreme Court and the Betrayal of America.
Five corrupt Republicans on the Court doubled down on that in 2010 with Citizens United, which led to an absolute explosion of billionaire money in politics. As a result, in 2024 just 150 billionaire families spent $2.6 billion to elect candidates, money that went to the GOP on a more than 2:1 basis.
And now, in a manner demonstrative of a fully corrupt banana republic mindset, the Trump administration and Republicans in Congress are giving the fossil fuel industry everything they could want. In addition to the outrages listed above, in just the first three months of this regime, they have further gifted the industry by:
— Exempting Coal Plants from Mercury and Air Toxics Standards (MATS): The Trump administration granted two-year exemptions to 47 coal-fired power plants, allowing them to bypass MATS regulations. This decision increases the risk of mercury pollution, which can cause neurological damage (particularly in children) and respiratory illnesses.
— Declaring a National Energy Emergency: Trump declared a national energy emergency to accelerate fossil fuel development, weakening environmental reviews and potentially increasing pollution.
— Rolling Back Vehicle Emissions Standards: The administration overturned emissions standards for vehicles, leading to increased air pollution and associated health risks.
— Reducing EPA Enforcement: Under Trump, the EPA brought fewer cases against polluters and sought lower penalties, diminishing deterrents against environmental violations. Now Musk and his Doge teenagers are further gutting the EPA itself.
— Weakening Methane Emission Regulations: The administration rolled back rules limiting methane emissions from oil and gas operations, contributing to climate change and air quality issues.
— Providing Direct Channels for Pollution Exemptions: Fossil fuel companies were given a direct email line to request exemptions from air pollution regulations, undermining public health protections.
— Eliminating Climate and Environmental Justice Webpages: The removal of federal climate and environmental justice webpages hindered public access to crucial information for addressing pollution and climate impacts and served to hide or cover up Trump’s naked corruption.
— Reversing the Clean Power Plan: The administration replaced the Clean Power Plan with the Affordable Clean Energy rule, which could lead to thousands of additional premature deaths annually due to increased air pollution.
— Cutting Funding for Environmental Protections: Significant budget cuts to the EPA and other environmental programs reduced the capacity to monitor and enforce pollution controls.
— Reducing Public Land Protections: The administration reduced the size of national monuments and opened protected lands to fossil fuel extraction, threatening ecosystems and biodiversity.
— Rolling Back Clean Water Protections: By narrowing the definition of “protected waters,” the administration allowed more pollutants to enter waterways, affecting drinking water and aquatic life.
— Undermining Scientific Research: Policies were enacted to limit the use of scientific studies in policy-making, particularly those related to environmental and public health research.
— Reversing the Paris Climate Agreement Commitment: The U.S. withdrawal from the Paris Agreement under Trump signaled a retreat from global efforts to combat climate change.
— Promoting Fossil Fuel Exports: The administration lifted restrictions on fossil fuel exports, encouraging increased production and consumption globally, contributing to greenhouse gas emissions.
— Reducing Air Quality Monitoring: Cuts to air pollution monitoring programs made it more difficult to detect and address harmful emissions, posing risks to public health but increasing the profits and impunity of the fossil fuel industry.
Trump and Republican cronies in his administration and Congress are committed to trading millions of cases of asthma, childhood cancers, and environmental damage — not to mention the thousands who are dying every year from climate-change-related violent weather, floods, and fires — in exchange for blood-money cash.
Republicans refuse to do town halls, refuse to answer questions about this, and hide behind a timid media that’s afraid to even ask serious questions about this criminal corruption of the protective role of government.
Which leaves it up to us.
— Get out in the streets as often as possible.
— Call your representatives, particularly if they’re Republicans (only 4 or 5 Republicans in the House and Senate could change the course of history).
— Make your voice heard on social media, letters to the editor, calling into to talk radio, and sharing messages like these with friends and family.
— Contribute, if you can, to politicians who are taking brave stands against the oligarchy.
This is not just politics — it’s a slow-motion slaughter disguised as deregulation.
Republicans won’t answer for it, won’t debate it, and won’t hold town halls to face the people they’re sacrificing. The media tiptoes. The billionaires cheer. And Trump signs away your children’s futures with a grin and a pen.
But here’s the truth they don’t want us to grasp: If we want our children to grow up with lungs that work, we better start working and voting like our lives — and theirs — depend on it.
This isn’t just about air. It’s about whether democracy itself can breathe.
Tag—you’re it.
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9 24 the lever podcast series
RR promo for pacific legal
trailer: Master Plan | Listen Now
ep 3 ken sTARR, BOPP AND ABRAMS BELOTTI AND BUCKLEY
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thom an 11 23 no lnx
How the GOP became the party of tax cheats
Thom Hartmann
November 06, 2023
Last week, House Speaker MAGA Mike Johnson gave his first press conference. The billionaires sure picked the right guy: his performance was flawless. Slick, slimy, and unctuous.
For example, even though every dollar the IRS spends auditing billionaires produces between $6 and $12 in added tax revenue to our government, Johnson insisted with a straight face that we need to cut over $14 billion from the IRS’ budget to “fully pay for” a package of military aid to Israel.
No reporter — as is so often the case when interviewing Republicans — was willing to point out what BS his pitch on behalf of his billionaire owners was. (Nobody wants to be banned from future press conferences or ignored during question time.)
Johnson repeated his “fiscal responsibility” mantra several times, saying that future legislation to keep the government open would similarly contain radical domestic spending cuts rather than asking the morbidly rich to pay their fair share of taxes.
Which raises the question: When and how did the GOP become the party of tax cheats?
A quick history is in order.
When Republican Dwight D. Eisenhower was sworn in a president in 1953, the top income tax bracket for the morbidly rich was 92%. Eisenhower was just fine with that. He knew it discouraged wealthy people from strip-mining their businesses for every penny they could find at the expense of their employees: instead, employers paid their workers well and rolled corporate profits into R&D to develop new products. It made America the world’s leader in innovation.
In 1946, at the end of WWII, our national debt was 119% of our nation’s GDP, much like today’s 123%. Truman and Eisenhower knew how to reduce that debt: high taxes on billionaires and massive expenditures on American infrastructure like schools, hospitals, highways, and airports to stimulate the economy. In just the seven short years leading to Ike’s inauguration they’d cut our debt down to 68% of GDP.
Jack Kennedy kept those high tax brackets for morbidly rich people: on every dollar over $400,000 a year ($4 million/year in today’s money), people paid 91 cents in income taxes. And, true to form, the economy was rip-roaring along, the middle class was growing faster than anywhere else in the world, and our debt was under control at 54% of GDP.
After Kennedy’s assassination, Lyndon Johnson gave a tax cut for the morbidly rich in exchange for their going along with his Great Society programs including Medicare and Medicaid: he cut the top rate to 70%, although he closed so many loopholes used by the rich that it actually increased federal revenues.
Republican President Richard Nixon was fine with the 70% top bracket on the morbidly rich, too, and kept it in place throughout his presidency. By the time he left the White House in 1974, our national debt was way down to 31% of GDP and it stayed there (32%) through the four years of Jimmy Carter’s presidency (1977-1981).
And then it happened. During Jimmy Carter’s presidency, five Republicans on the Supreme Court legalized — for the first time in the history of either America or any other developed country in the world — political bribery by billionaires and corporations alike.
It was a subset of Lewis Powell’s infamous Memo about how the very, very rich should rise up and seize control of American politics because they knew best how to run a country and, Powell suggested, all those pesky social programs from the New Deal and Great Society had put America on the road to communism.
Powell himself wrote the 1978 decision in First National Bank v Bellotti that legalized political bribery by giant corporations, as I lay out in The Hidden History of the Supreme Court and the Betrayal of America.
Reagan was sworn in on January 20, 1981 and immediately set about remaking the GOP’s top priorities away from what was best for America and toward exclusively serving the interests of obscene wealth.
That moment in 1981 was a major turning point in modern American history for two reasons.
First, Reagan’s campaign had committed treason to win the White House, cutting a deal to give the Iranian Mullahs American weapons systems and spare parts in exchange for their holding 52 US hostages long enough to screw Jimmy Carter’s re-election chances.
In doing so, Reagan set a pattern that would become a recurring theme for the GOP: abandon American values and betray our allies if it means wealth and political power.
George W. Bush, exploiting 9/11, lied us into two unnecessary and illegal wars just to save Dick Cheney’s company and insure his own 2004 re-election. Donald Trump enthusiastically accepted help from Vladimir Putin to win the White House in 2016 and his family has since taken over $3 billion from Gulf state governments.
Second, Reagan pursued Jude Wanniski’s Two Santas political strategy with gusto. Wanniski, in 1977, had argued that when Republicans held the White House they should use tax cuts and budget-busting spending to run up the national debt as fast and high as possible, thus injecting money and stimulus to let the good times roll.
This would make people think Republicans knew how to run an economy. (Back during the Reagan presidency, I used to say, “Give me a $2 trillion credit card and I’ll show you good times, too!”)
Republicans got so good at it that today the average billionaire in America pays around 3.2% in income taxes.
When Democrats came into office, Wanniski said, Republicans in Congress should begin to squeal loudly about the national debt (that Republicans had created with their tax cuts), claiming it was a threat to the nation. This, Wanniski said, would force Democrats to “shoot Santa”: vote to gut their own social programs.
Cue MAGA Mike Johnson.
The smarmy little man was so on-message yesterday that he even claimed that people in our military had told him they thought our national debt was a bigger threat to us than Russia or China. Nothing, Johnson argued, was more important than cutting back on the IRS’ ability to audit billionaires while reducing social program spending.
Medicare, Medicaid, Social Security, food stamps, housing subsidies, Obamacare, unemployment insurance, disability insurance, the Peace Corps, the GI Bill, federal home loan programs, the National School Lunch Act, Head Start, the Family and Medical Leave Act, dozens of supports for public schools: all these programs and more that benefit average Americans were passed by Democrats over the objection of the majority of Republicans.
The sad reality is that the GOP serves only two masters: giant corporate monopolies and the morbidly rich. They’ll toss a rhetorical bone to racists, misogynists, gun freaks, homophobes, and Nazis, but that’s just to get enough votes to hold political power: their real obsession, their true North Star, is great wealth.
Some Democrats were giddy when Johnson was selected Speaker because they thought his lack of experience and his extremist views on abortion, homosexuality, and religion would alienate him from the American public.
But Johnson has proven himself up to the task, if yesterday’s first press conference is any indication. He’ll go to nearly any length to keep the IRS from collecting from his tax-cheat patrons, all while working to gut the American social safety net and giving Putin whatever he wants.
And now he’s collaborating with Republicans in the Senate to create a secret commission to slash Social Security behind closed doors.
So, get ready for the next 14 months (until the next Congress is sworn in January 2025) to be a nonstop attack on America’s poor, our middle class, and the entire spectrum of racial, gender, and religious minorities who make up the fabric of our nation. After all, somebody’s gotta pay for those massive tax cuts Reagan, Bush, and Trump gave Zuckerberg, Bezos, and Musk.
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ciarra torres s
Chapter 5 · This Politician Was Brought to You By . . . 101
2009 18 corps had 36% of all wealth 1.5 Trill$; 18 corps had 500B$; J Powell sneaky in Bellotti protect speech not spkr, Rehnquist dissent; Memo;
Buckley Valeo (8 magic words) plus Bellotti--> CU
BCRA Bipart electioneering communications, upheld by McConnell v case? but ~ 7 yrs later in 2010; Acting Solic gen'l Malcolm Stewart messed up saying applied to 500 pg book hypo; [Kagan walked back 2nd round] what CU did vs did not p 114; key change is allowed corp $ for indep expenditures [ 501c4?] and electioneering comm = pol ads; pretended to empower "disfavored assoc of cits" while rich ppl can spend as much as they want? 115 Justice JP Stevens passionate dissent " 115; later bk same opinion;Lessig 500% increase in Neg ads 117; depress turnout; ~ BO in 1st SOU ~, foreign $, Alito "not true" [russian $ yes jesse benton at least , rudy pals?]
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https://truthout.org/articles/unequal-protection-protecting-corporate-liars/
the first direct shot across the bow of the doctrine of a corporation’s “right to lie” by using its “personhood” to claim First Amendment “free speech” rights came in April 1998, when Mark Kasky, a California political activist, noticed that Nike was engaged in what he considered to be a deceptive greenwashing campaign. Kasky had long been a runner and wore Nike shoes, so he was particularly distressed when he saw Nike’s communications director, Lee Weinstein, publish a letter in the San Francisco Examiner in December 1997 that said, in part, “Consider that Nike established the sporting goods industry’s first code of conduct to ensure our workers know and can exercise their rights.”2
This letter was just a small part, it turned out, of a national campaign by Nike to convince the American public that it was making sure that its contractors and subcontractors were treating their employees in Asia well. The year before, Steve Miller, Nike’s sports marketing director, pledged in a letter to athletic program directors and presidents of U.S. universities that Nike’s manufac turers complied with “government regulations regarding minimum wage and overtime as well as occupational health and safety, environmental regulations, workers’ insurance, and equal opportunity provisions.”3
What Nike wasn’t mentioning, but which was leaked to the press in 1997, was a 1996 audit of one of the company’s overseas factories (this one in Vietnam) by Ernst & Young. The audit, which Nike had commissioned but then tried to keep secret, documented how workers in the Vietnamese factory were exposed to cancer-causing solvents like acetone and toluene in ways that would have been flatly illegal in the United States and were not protected from deafening levels of noise; it also raised a series of questions on other workplace issues. As Mother Jones documented in a February 2001 article (“Greenwashing on Trial” by Josh Richman), “another Nike-funded study found evidence of physical and verbal abuse and sexual harassment at nine of its contract factories in Indonesia.”4
kasky was outraged that Nike held itself out as the model corporate citizen. He told filmmaker Lori Cheatle (for her movie This Land Is Your Land, which also features Naomi Klein, Thomas Frank, Jim Hightower, and me, along with seven others):“The Nike code of conduct stated that they maintained the highest standards of health, worker safety, and compensation, and they used that to market their products. So I felt very upset when I realized that a lot of the representations they were making might not be true.”
He and a lot of people in California were buying Nike products under false assumptions or misrepresentations, so he called an attorney and decided to take the company to court.
Kasky went to attorney Alan Caplan (of the “Joe Camel” cigarette lawsuit fame), and together they invoked a rather unique California law that allowed individuals to behave as if they were the state’s attorney general and sue companies for fraudulent or other illegal practices, producing what would ultimately become the Supreme Court case Kasky v. Nike.
[vid 404 The Daily Take: Why Fox News has the Right to Lie to Us]
in 1999 the case was dismissed by San Francisco Superior Court Judge David Garcia, who suggested that Nike’s right to lie—to “free speech”—was protected by the First Amendment of the U.S. Constitution. Kasky and Caplan appealed to the U.S. Court of Appeals, where, in March 2000, that court ruled against Kasky again, with Justice Douglas Swager arguing that Nike was only promoting its products, as any company would, could, and should be able to do in a world of corporate “persons” endowed with free-speech rights.
His comment specifically noted that Nike’s use of inaccurate letters to the editors in newspapers across America, letters telling untruths to university presidents, and other false statements to the press were “within the core area of expression protected by the First Amendment.”
Undeterred, Kasky carried his suit to the California Supreme Court, which ruled in May 2002 (by one vote, 4 to 3) that Nike had violated the California laws against unfair competition and false advertising. The Supreme Court justices didn’t, however, challenge the notion that First Amendment protections didn’t extend to commercial “speech” by corporations; instead they suggested that such rights should be limited to the commercial interests of the corporation and that the action of Nike in this case “bears only a tangential relation to commercial transactions.”
At that point Nike decided that, rather than pay the fine and change its business practices, it would take the case all the way to the U.S. Supreme Court, where a very curious thing happened.
The Supreme Court typically gets more than ten thousand requests every year to hear cases. It has a small army of clerks and lawyers (usually including clerks for the justices—Samuel Alito chooses not to have his clerks participate—known as the “cert pool”)who filter through them to find the ones that have reasonable merit and which the justices may be interested in hearing. The Court as a whole then considers the thousand or so that survive the culling process, further reducing the caseload for the year to a number typically around one hundred total cases (it takes the votes of four justices to grant certiorari, allowing the case to be argued before the Court).
After the Court has gone through all this work to whittle down its case-load, each case comes before the justices in two ways. First, both parties to the case file their own legal briefs or arguments in writing.Second, interested parties—“friends” of either side (by virtue of association or concern for the issue behind the case)—file Friend of the Court, or amicus curiae, briefs, adding their voices to the arguments. Then the justices hear oral arguments, which these days are limited to thirty minutes for each side, after which each justice and his or her staff retire to their offices to consider the arguments, more carefully look over the amicus briefs, and correspond with other justices about each case.
Eventually—typically over a period of a few months—a consensus emerges or a vote is taken, and on each case the Court decides who wins or loses. The justices then write agreements or dissents with or from the majority opinion, and when all is ready for the public they announce their decision.
Except in the Kasky case.
The Court did agree to hear the case, in the 2003 session. The justices heard the oral arguments on June 26. They accepted the amicus briefs—including filings from companies that included ABC, Inc.; the American Society of Newspaper Editors; the Associated Press; Forbes, Inc.; Fox Entertainment Group; Gannett Company; the Hearst Corporation; the McClatchy Company; the National Association of Broadcasters; the National Broadcasting Company (NBC); National Public Radio, Inc.; the New York Times Company; Newsweek, Inc.; PR Newswire; the Seattle Times Company; Time, Inc.; Tribune Company; U.S. News & World Report; and the Washington Post Company—all agreeing with Nike.
ExxonMobil, Bank of America, and Microsoft filed their own three-company brief on behalf of Nike, and similar separate filings came from the National Association of Manufacturers, Pfizer, and the U.S. Chamber of Commerce, among others.
Even the American Civil Liberties Union (ACLU) filed a brief defending Nike’s right to “free speech” as a “person” in America.The legal department of the AFL-CIO (American Federation of Labor and Congress of Industrial Organizations) filed a brief defending Nike’s “right to lie” (it is true that as persons we have a “right to lie” except in particular cases such as when under oath). Even the very liberal New York Times columnist Bob Herbert wrote an impassioned op-ed supporting Nike’s right to deceive the public. All three mistakenly believed that corporations had had First Amendment rights since 1886, and all three were strong advocates of the First Amendment. And the AFL-CIO, of course, was a corporation itself, albeit a unique nonprofit form of incorporation.
There was also a loud public debate on the issue. Citizen activist groups picketed the Supreme Court, decrying corporate personhood and the entire idea that constitutional protections like free speech should be granted to corporations instead of being the exclusive province of humans, while the New York Times, the Wall Street Journal, and the Washington Post (among others) ran shrill editorials warning of dire consequences for the future of capitalism and democracy if corporations weren’t finally and fully granted the constitutional right of free speech.
The Court then heard the oral arguments, in which Kasky’s lawyers, Alan Caplan and Philip Neumark, revisited the series of very specific lies that they asserted Nike had told the American public in their original lawsuit. They said that Nike:
In order to maintain and/or increase its sales, made misrepresentations by the use of false statements and/or material omissions of fact, including but not limited to the following:
(a) claims that workers who make NIKE products are protected from and not subjected to corporal punishment and/or sexual abuse;
(b) claims that NIKE products are made in accordance with applicable governmental laws and regulations governing wages and hours;
(c) claims that NIKE products are made in accordance with applicable laws and regulations governing health and safety conditions;
(d) claims that NIKE pays average line-workers double-the-minimum wage in Southeast Asia;
(e) claims that workers who produce NIKE products receive free meals and health care;
(f) claims that the GoodWorks International (Andrew Young) report proves that NIKE is doing a good job and “operating morally”; and
(g) claims that NIKE guarantees a “living wage” for all workers who make NIKE products.5
Nike, for its part, argued that when it hired former UN ambassador and Atlanta mayor Andrew Young to check them out, he found that everything was hunky dory: “Although some news organizations concluded that some allegations against Nike had merit, former United Nations Ambassador Andrew Young concluded in an independent review commissioned by Nike that the charges were largely false.”6
Further, Nike’s lawyers said that when the California Supreme Court concluded that it was okay for Marc Kasky to use the consumer protection laws to hold Nike accountable for what it said to the public, it was way too broad a use of the laws against fraud or deception in commerce. Nike’s lawyers wrote: “The California court’s conclusion that government may regulate all statements of fact by commercial entities that could influence consumers sweeps far too broadly…”
Nike’s lawyers also didn’t like the law in California that let an individual act as if he were the attorney general: “The private attorney general provisions of the UCL and FAL thus violate the First Amendment because they omit not only any requirement that the plaintiff have suffered harm, but also any other meaningful constraint on the ability of private plaintiffs to bring lawsuits…” which could impose a “crushing burden” on a multibillion-dollar corporation like Nike.
And, finally, calling implicitly on the doctrine that a corporation is a person protected by the Bill of Rights, Nike argued: “Even if petitioner’s [Nike’s] statements could be characterized as ‘commercial speech,’ the legal regime approved by the California Supreme Court violates the First Amendment.” In other words, “We’re a company, which is the same as a person, and so we have the First Amendment right to say whatever we want, just like anybody else. To say that we have to only say things that are accurate violates our First Amendment right of free speech.”
All of this was laid before the Court. There were multiple dimensions to the case, but at its heart was the issue of whether a corporate “person” had the same “right to lie,” guaranteed by the First Amendment to the U.S. Constitution, as you and me. If I can tell my wife that she looks great in a dress that I really think is ugly (but know she loves), Nike had the right to tell Americans that it was treating its workers well (even though it wasn’t and knew it).
But something caught in the Court’s throat. Chief Justice William Rehnquist, with six of his colleagues, decided that the Court had made a big mistake when it granted a writ of certiorari, the declaration that the case was legitimate and appropriate for the Court to hear.
Remember that it was Rehnquist who, in the earlier First National Bank of Boston v. Bellotti case (mentioned in chapter 1), had said that he disagreed with what he believed was the decision of the Supreme Court in 1886, that corporations were persons. And, interestingly, the attorneys who crafted the amicus brief on behalf of Marc Kasky took special pains to point out—with the hope that Rhenquist would read it and have a “EUREKA!” moment—that the Court had actually never created corporate personhood in 1886.
Quoting from the first edition of this very book, Kasky’s attorneys wrote directly to Rehnquist in their brief:
Indeed, the initial grant of “personhood” under the Fourteenth Amendment to corporations was, to a certain extent, a judicial mistake. Corporate person-hood is generally attributed to the Court’s decision in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), although the Court in that case specifically declined to address the issue. In Santa Clara County, Santa Clara County sued the Southern Pacific Railroad Company for failure to pay taxes, and the railroad presented the Court with six defenses, including the argument that corporations were persons under the Equal Protection Clause of the Fourteenth Amendment. Because one of the other five defenses was successful, the Court had no occasion to decide the question of corporate personhood and specifically declined to do so:
If these [other] positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined below; for, in that event, the judgment can be affirmed upon the ground that the assessment cannot properly be the basis of a judgment against the defendant.
As the judgment can be sustained upon this [other] ground, it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.
Id. at 411, 416. Indeed, in a companion case, Justice Field in a concurring opinion lamented that the “tax cases from California” did not “decide the important constitutional questions involved.” County of San Bernardino v. Southern Pac. R. Co., 118 U.S. 417, 422 (1886) (Field, J., concurring).
Nevertheless, it appears that the court reporter, J.C. Bancroft Davis, included a headnote stating, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth 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.” See Thom Hartmann, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights 107 (2002) (quoting J.C. Bancroft Davis, 118 United States Reports: Cases Adjudged in the Supreme Court at October Term 1885 and October Term 1886 394 (Banks & Brothers Publishers).7
In other places in the brief, its authors took special pains to point out how Santa Clara had been misinterpreted over the years. (One sentence, for example, begins, “Notwithstanding the mistaken ‘personification’ of corporations in Santa Clara, the Court’s subsequent rulings reveal that this Court has not consistently applied the implications…”)
Every step along the way helped telegraph to Rehnquist that his dislike of what he thought had been decided in 1886 in Santa Clara was a good gut instinct because he was right. Corporations aren’t persons, and the Court had not said they were in 1886!
Nobody knows what happened when this bombshell hit Rehnquist’s desk,as the Court is notoriously secretive. But something big happened because Rehnquist leapt into action—and that action was to decide not to decide the Kasky case. Inexplicably, astoundingly, and virtually without precedent, Rehnquist and most of his colleagues issued a very, very terse statement.
The single sentence the Court issued said only: “The writ of certiorari is dismissed as improvidently granted.”
In other words, “When we decided to listen to these arguments and look over this case, granting it legal certification before us, we screwed up. Therefore we’re tossing out the certification and going to pretend we never even heard this case or read its briefs.”
While this dismissal represented the thinking of the majority of the Court, Justices Sandra Day O’Connor and Stephen Breyer were incensed. Breyer wrote: “In my view…the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on.”
But regardless of Breyer’s or O’Connor’s concern that the Court was kicking the can down the road, the case came to a halt, and Kasky and Nike settled out of court almost immediately when the California courts granted Kasky the legal right to access Nike’s internal files(known as a grant of discovery). The amount of money Nike paid Kasky’s lawyers to stop at that point and not pursue discovery, rather than legally riffle through Nike’s internal papers, was never disclosed, and Kasky, for his part, agreed with the decision to stop discovery when Nike made a seven-figure gift to an organization that worked to help sweatshop workers around the world.
The world was safe for corporate liars (although California’s citizens were still free to go after them in a limited fashion). Corporate personhood hadn’t been challenged. And the weird coalition of liberals (Bob Herbert and the ACLU) and conservatives (NBC, ABC, the Chamber of Commerce, and others) who worried that ending a corporation’s right to call on the First Amendment would be a disaster for America all breathed a sigh of relief.
Until 2010.
Notes:...
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Fossil Fuel Industry Wants Free Speech for Corporations but Not Citizens
https://theintercept.com/**2022/09/**16/fossil-fuel-industry-climate-free-speech/}:
amy w
REPS. JAMIE RASKIN, D-Md., and Katie Porter, D-Calif., probably didn’t plan for their committee hearings to run at the exact same time this week, but the hearings sure were talking to each other.
In her Committee on Natural Resources hearing, Porter highlighted the role PR firms play in blocking climate policy. Rep. Blake Moore, R-Utah, and his selected witness, Amy Cooke, CEO of the conservative John Locke Foundation, expressed concern that preventing companies and their hired PR firms from spreading misinformation about climate change would have a chilling effect on free speech.
Meanwhile, the House Oversight Subcommittee on Civil Rights and Civil Liberties, chaired by Raskin, focused on free speech attacks against environmentalists, digging into the fossil fuel industry’s attempts to curb citizens’ speech rights via strategic litigation and laws that criminalize protest. Taken together, the two are a perfect illustration of the industry’s First Amendment strategy: expand free speech for corporations, curb it for citizens.
raskin’s free speech hearing focused on two key tactics: the increased filing of strategic lawsuits against public participation, or SLAPPs— defamation suits aimed at penalizing citizens or citizen groups for exercising their First Amendment rights — and theproliferation of so-called critical infrastructure bills, which pile on fines and criminal sentences for those caught trespassing or vandalizing near pipelines, power plants, railroads, or other infrastructure. These anti-protest bills were a direct industry backlash to the Standing Rock protests in 2016 and 2017. Starting with a law passed in Oklahoma in 2017, they proliferated with the help of the industry group American Fuel and Petrochemical Manufacturers and the American Legislative Exchange Council, which drafts and disseminates pro-corporate model legislation for adoption by state governments. Seventeen states now have critical infrastructure laws on the books, with several more considering proposals.
“SLAPPs and anti-protest bills are really two sides of the same coin,” said Deepa Padmanabha, deputy general counsel for Greenpeace and a witness at Raskin’s hearing. “They’re tactics used by the same corporate actors to quash dissent. They’re pushing legislation to silence us, to criminalize our critiques through anti-protest bills. And they’re also filing SLAPP suits to silence dissent.”
Greenpeace has dealt with both. Greenpeace USA activists were arrested in 2019 under Texas’s felony critical infrastructure law for unfurling banners on a bridge, which temporarily blocked shipping. The goal of the action was to highlight the connection between the oil industry and climate change.
Greenpeace is engaged in active litigation in a couple of SLAPP suits too. In one, Energy Transfer, the company behind the Dakota Access Pipeline, sued the organization for its role in the Standing Rock protests. The suit was initially filed in federal court and invoked the Racketeer Influenced and Corrupt Organizations Act, orRICO, a law designed to prosecute organized crime. “Energy Transfer was alleging that our advocacy work to uplift Indigenous voices at Standing Rock constituted organized crime,” Padmanabha said.
Because RICO allows for damages to be tripled if a defendant is found guilty, Greenpeace faced a $1 billion fine. Losing that suit would have had a truly chilling effect on free speech. A federal judge threw out the case, but Energy Transfer filed again in North Dakota (minus the RICO charge), a state that doesn’t have an anti-SLAPP law on the books.
Anti-SLAPP laws allow defendants a quick way to get SLAPP suits dismissed, minimizing the time and money spent on meritless cases. Currently, 31 states and the District of Columbia have adopted anti-SLAPP statutes, which makes it fairly easy for corporate entities to go venue shopping for a court in a state without such a law. To address that gap, Raskin proposed new legislation this week to create federal anti-SLAPP protection. While some players in the fossil fuel industry may oppose Raskin’s bill, others have actually sought to avail themselves of anti-SLAPP protections. Exxon Mobil, for example, in its final attempt to thwart the fraud case against it in Massachusetts, argued that the suit was a SLAPP.
The oil company’s attorney Justin Anderson maintained that Massachusetts Attorney General Maura Healey’s fraud complaint against Exxon was not valid because the company’s public statements on climate policy should be considered political opinion (“petitioning activity,” in legal parlance), not misleading advertising — even when Exxon falsely claimed that climate change wasn’t real and overstated the company’s investments in low-carbon technology.
When one judge asked why Exxon would file an anti-SLAPP complaint rather than make a First Amendment argument in court, Anderson made clear that the point was to avoid discovery, when the corporation would be asked to hand over files and make its executives available for depositions. “The anti-SLAPP statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party,” he argued.
The “petitioning activity” argument is one that the industry and its allies have trotted out repeatedly, both in court and in congressional hearings like those held this week. It’s a broad interpretation of free speech rights for corporations, the very sort of protection these same companies are opposed to extending to individuals. In his testimony before Raskin’s subcommittee, Daren Bakst, a senior research fellow on environmental policy and regulation for the Heritage Foundation, said, “The chilling effects are states bringing lawsuits against people for their speech.” It’s hard to tell because he said “people,” but he meant oil companies. Which he made clear by immediately referencing “what municipalities are doing, the government is doing against these fossil fuel companies. And I also see that Massachusetts is doing.”
This view of an oil company as a person who is being silenced for simply sharing their views on climate policy is the basic argument oil companies are making in dozens of cases across the country. These cases, brought by both municipalities and states, hinge either on fraud or nuisance claims and effectively ask that fossil fuel companies pay up for delaying action on climate, which increased both the impacts of the climate crisis and the price of adapting to a warming world. In all of them, the corporate defendants make some version of a free speech argument. They maintain that their public speech about global warming differed from their internal knowledge because their public statements were “petitioning speech,” related to their political views and desires and thus, protected. The industry has been building the foundation for such an argument for about as long as it has known about climate change — since the late 1960s.
“They will try to defend their misinformation efforts as political speech covered by the First Amendment and not subject to false advertising laws.”
The argument arose out of a situation not unlike the one playing out today, with war driving up prices at the pump and oil companies desperate to control public perception.
According to documents from Mobil’s corporate archive at the University of Texas at Austin, the company’s longtime PR whiz Herbert Schmertz and then-CEO, Rawleigh Warner, came up with an idea to help wrestle back control of the narrative. Using Mobil’s PR and advertising budget, they would create “idea advertising” to push the company’s take on key issues of the day and create the sense of Mobil as a citizen with a distinct personality.
They ran weekly :{advertorial:(style="background-color:#ffff66ff"):}:s in the New York Times as well as regular placements in a wide range of other publications, from the Los Angeles Times and the Wall Street Journal to Time and Fortune. Then Schmertz proposed TV and radio too. Why not?
In the early 1970s, Mobil took their TV and radio advertorials to all the big broadcast stations and only one, NBC, agreed to run them. CBS and ABC said they preferred to have their journalists cover energy issues. :{:{For Schmertz and Warner, it was a battle they had to win. What if the newspapers, or PBS, started to rethink playing nice with Mobil? In a media blitz, the two blasted CBS and ABC from every angle, in their NYT spot, on radio and TV programs, at events. Warner went to various business clubs to talk about the importance of protecting corporate free speech.}:
insert lnx doc
fred halpern
..(212) 883-3232 Mobil news release Hoar Be Band ee REE mORE CONCENTRATED THAN OIL INDUSTRY HOUSTON, TEX., OCT. 7 -- Where ideas and viewpoints are involved, the U.S. marketplace is only partly open to private businesses, an officer of Mobil Oil Corporation charged today in a talk to the American Gas Association at its 57th annual where commercial network television is involved, the marketplace of ideas is tightly circumscribed, and it is olicopolistic if not downright monopolistic." Speaking on "Corporate Communications and the Free Market of Ideas," Mr. Schmertz said his company's print advertisements had, amonc other things, "tried to help people understand that nearly everything in life is a trade-off.
To understand that they can have natural cas at artificially depressed prices, but that if they do, they can't have adequate and secure supplies of it, "To understand that they can reduce automotive air emissions severely and abruptly to meet some arbitrary timetable, but that they can't do this and hold down costs and improve mileage at the same time. In short, we have tried to help people understand what options are open to them and what costs are involved in the various alternatives -- matters to which few politicians and few of the media ever seem to address themselves."
Most of the reporting on the oil crisis beginning in late 1973, Mr. Schmertz continued, was "superficial and misleading, and much of it was simply inaccurate." This was particularly true, he said, of the commercial television networks, "which by their very nature seldom seem either able or eacer to cope with complex issues. Most television reporters and commentators knew virtually nothing about our business and seemed to have neither the time nor the motivation to learn." Because of this and because so many Americans rely heavily on television as their source of news, the oil company executive declared, Mobil attempted to buy air time for "idea" commercials that would convey "some accurate information and our own viewpoints. Our aim was . . . simply to broaden the spectrum of information -- and thus of choices -- available to the American people." Mr. Schmertz said the networks have refused to sell time to Mobil for its "idea" commercials. This means, he went on, that “the American people will see and hear on commercial television what two or three people at each of two or three networks decide the public will see and hear. I submit that this is a remarkable concentration of decision-making . . ."}:
Schmertz testified before Congress in 1978, urging First Amendment protection for Mobil’s ads and arguing that there was no difference between Mobil advertorials and New York Times editorials, because after all the Times was a business too.}:
testimony: DocumentCloud nyt may 25 comm looks at grassroots lobbying[ 3rd party? astroturf?] herb says nyt has lumber etc, tv; wapo op ed on eg pentgon papers herb says = exxon
Mobil helped rally support and funding for the first big Supreme Court case on the matter, First National Bank of**Boston v. Bellotti, the precursor to Citizens United. The court ruled that corporations could spend whatever money they wanted to influence politics, overruling a Massachusetts statute that said otherwise. “If the restricted view of corporate speech taken by the Massachusetts court were accepted,” Justice Lewis A. Powell wrote, “government would have the power to deprive society of the views of corporations.”
Related
How the Media Launders Fossil Fuel Industry Propaganda Through Branded Content
“I don’t think people really appreciate how big of a deal that was in shifting the rules of speech in the public space,” environmental sociologist Robert Brulle said. “Now, suddenly, corporations could use their budgets — which are enormous, you know, much larger than individuals — to advocate their position in the public space. … It allowed for a systematic distortion of the public space that gives corporations basically a loudspeaker to amplify their voice above everybody else’s.”
The 2010 Citizens United ruling, of course, intensified that dynamic. Whereas Bellotti allowed corporations to publicly campaign for particular ballot initiatives or candidates, Citizens United allowed political speech of any sort without disclosure of who was paying, who was actually speaking. Oil companies have been working to broaden corporate free speech rights even more in recent years, as their arguments in climate litigation and before Congress show.
“They will try to defend their misinformation efforts as political speech covered by the First Amendment and not subject to false advertising laws,” said Brulle, who has co-authored briefs in some of these cases.
Robert Kerr, who’s researched Mobil’s role in the corporate free speech movement for years, said to side with the oil companies’ arguments in these cases, the Supreme Court would have to turn its back on about a century’s worth of legal precedent. “It’s really deeply established even by some of the members of the current Supreme Court that the First Amendment will never protect expression that is fraud,” he said. “The worry now is that with this court there seems to be a majority that wants to say yes to almost any question the corporate interests raise.”
It makes sense then, that the industry and its allies would be working hard to rebrand climate denialism as simply a difference of opinion, to put some distance between greenwashing and fraud, to collectively gasp about the “chilling effect” (a phrase that came up so often in minority witness testimony this week that it’s hard to believe someone somewhere wasn’t disseminating talking points) that tackling misinformation might have on free speech. The fact that those efforts are happening alongside coordinated attempts to criminalize protest is more of the same: corporations drowning out the public. endit amy w
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https://en.wikipedia.org/wiki/First_National_Bank_of_Boston_v._Bellotti
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978),[1] is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amendment right to make contributions to ballot initiative campaigns. The ruling came in response to a Massachusetts law that prohibited corporate donations in ballot initiatives unless the corporation's interests were directly involved. [SEEMS ODD?]
In 1976 several corporations, including the First National Bank of Boston, were barred from contributing to a Massachusetts referendum regarding tax policy and subsequently sued. The case was successfully appealed to the Supreme Court, which heard oral arguments in November 1977. On April 26, 1978, the Court ruled 5-4 against the Massachusetts law.
As a result of the ruling, states could no longer impose specific regulations on donations from corporations in ballot initiative campaigns. While the Bellotti decision did not directly affect federal law, it has been cited by other Supreme Court cases such as McConnell v. Federal Election Commission and Citizens United v. Federal Election Commission.
- 1Background
- 2Before the Supreme Court
- 3Opinions of the Court
- 4Further Supreme Court rulings
- 5Effects on policy
- 6Support and criticism
- 7References
- 8External links
Background
Corporate funds and federal elections
Since the early 1900s, federal law has prohibited the use of corporate funds to influence federal elections.[2] In 1907, Congress passed the Tillman Act, prohibiting corporations and national banks from contributing to federal campaigns.[3][4][5] Forty years later, the Taft-Hartley Act banned direct election contributions by labor unions and corporations to federal elections.[5][6]
In 1971, the Federal Election Campaign Act (FECA) initiated sweeping reforms by requiring full reporting of contributions to federal elections.[5][7][8]
In 1974, amendments to the FECA created the Federal Election Commission and enacted stricter limits on election contributions and expenditures.[5][7]}:
That same year, Buckley v. Valeo challenged the 1974 FECA amendments in the U.S. Supreme Court on the grounds that theyviolated the First Amendment's guarantees of free speech.[5][9][10] The Court, introducing the concept of spending money as a form of unrestricted political speech, overturned limits on campaign expenditures.[5][11] However, it upheld contribution limits because such limits served the government’s interest in reducing election corruption.[5][11]
Before the Massachusetts Supreme Court
In 1976, Massachusetts passed Massachusetts General Laws ch. 55 § 8,[12] which expanded the 1974 FECA amendment's prohibitions.[2][13] The new criminal statute disallowed the use of “corporate funds to purchase advertising to influence the outcome of referendum elections, unless the corporation’s business interests were directly involved.”[2]
That same year, Massachusetts proposed a constitutional amendment (to be voted upon in a referendum election) modifying income tax laws.[14] The First National Bank of Boston, New England Merchants National Bank, the Gillette Co., Digital Equipment Corp., and Wyman-Gordon[13] claimed that this amendment affected their business interests and that they should be allowed to spend corporate funds on relevant advertising.[14]The Massachusetts Attorney General's Office, applying Massachusetts General Laws. ch. 55 § 8, disagreed.[14]
In response, the corporations sued Massachusetts Attorney General Francis Bellotti, the Coalition for Tax Reform, and United Peoples, Inc., contending that Massachusetts General Law ch. 55 § 8 was unconstitutional because it violated their right to free speech.[14] The Supreme Judicial Court of Massachusetts heard The First National Bank of Boston & others v. Attorney General & others on June 8, 1976.[14]
On February 1, 1977, the Massachusetts Supreme Court ruled in favor of the defendants, stating that Massachusetts General Laws ch. 55 § 8 was constitutionally applied because of a failure to find a material affect on the corporations’ business interests.[14] The plaintiffs appealed the decision to the United States Supreme Court.[15]
Before the Supreme Court
The U.S. Supreme Court heard First National Bank of Boston et al. v. Bellotti, Attorney General of Massachusetts, on November 9, 1977.[15]
Francis H. Fox presented the oral arguments on behalf the appellant, the First National Bank of Boston in representation of national banking associations and business corporations.[13][16] E. Susan Garsh joined him on the briefs.[13] Massachusetts Assistant Attorney General Thomas R. Kiley spoke during oral argument for the appellee.[13] The Attorney General Francis X. Bellotti and Assistant Attorney General Stephen Schultz joined him on the brief.[13] Main issues addressed during oral arguments included corporations as persons, the scope of freedom of speech, and the power of the states.[13][16]
The Associated Industries of Massachusetts, Inc. and the U.S. Chamber of Commerce filed briefs of amici curiae supporting a reversal of the lower courts’ ruling.[13][17][18] The Federal Election Commission filed briefs of amici curiae supporting an affirmation of the constitutionality of the statue.[13] TheState of Montana, the New England Council, and the Pacific Legal Foundation also filed amicus briefs.[19] The Northeastern Legal Foundation’s motion to file a brief was denied.[20]
Opinions of the Court
Overview
The Supreme Court issued its decision on April 26, 1978, with a5-to-4 majority vote in favor of the First National Bank of Boston.[21] Justice Powell delivered the majority opinion and was joined by Justices Stewart, Blackmun, and Stevens, with Burger writing a separate concurring opinion.[21] Justice White was joined by Justices Brennan and Marshall in his dissent, with Justice Rehnquist issuing a separate dissent.[22] The Supreme Court ruled that corporations have First Amendment speech protections extending beyond material commercial interests, reversing the decision made by the Massachusetts Supreme Court.[23]
Majority opinion
In opinion written by Justice Powell, the court held:
- the case was not moot because it was one of a category of cases that is "capable of repetition, yet evading review;"
- the statute was unconstitutional and the argument that a corporation's speech regarding issues not relevant to the business loses its First Amendment protection is invalid.
The case was not moot.
In its ruling, the Court first considered whether the case was moot.[24] The constitutional amendment that the appellants had opposed had been defeated by the time the case came to the Court's attention.[24] The Court used the scrutiny described in Weinstein v. Bradford in its determination that the case was not, in fact, moot.[25][26] The Court's rationale was twofold: first, the interval between the amendment's proposal and its referendum was too short for complete judicial review to have occurred; and second, the Court found that there was a reasonable expectation that the appellants would be adversely affected by the statute again.[27]
The statute was unconstitutional.
Then, the Supreme Court held that the Massachusetts statute in question violated corporate speech rights protected under the First Amendment.[28] The majority wrote that "commercial speech is accorded some constitutional protection not so much because it pertains to the seller's business as because it furthers the societal interest in the 'free flow of commercial information.'"[29]
The majority opinion asserted that "the inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."[30] In deciding the case, the Court rejected the argument that the Fourteenth Amendment did not apply to corporations.[31] The Court overruled Pierce v. Society of Sisters, which stated that corporations "cannot claim for themselves the liberty which the Fourteenth Amendment guarantees," declaring the decision to be "untenable under decisions of this Court".[32] Instead, the Court asserted that the Due Process Clauseextends freedom of speech and other First Amendment liberties to corporate entities.[26][33]
:{The majority rejected the argument that the First Amendment rights of a corporation derive purely from their business and property interests.[34] Furthermore, the Court asserted that "the Court's decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression, but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas".[35]
The Supreme Court cited Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, in which the Court held that whether "the advertiser's interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information."[36] The Court found that there was no evidence that corporations lost speech protections if their speech did not materially affect the business of the corporation.[37] Thus, the Court held the statute violated the First Amendment rights of the corporation.[1]}:
The Court also rejected the claim that the statute was "necessitated by governmental interests of the highest order".[38] Massachusetts had argued that the statute was necessary for two reasons: first, that the State had a compelling interest in maintaining the role of the individual in the electoral process and that corporate speech would diminish this; and secondly, to protect shareholders of the corporations whose views might differ from those of the corporate management.[39] The majority asserted that neither of these justifications was apparent in the statute.[40] Furthermore, the decision found that there was insufficient evidence that the law was necessary to satisfy the compelling state interest test.[41] As to the latter claim, the Court held that the statute was both underinclusive and overinclusive in regards to shareholders interests.[42]
Concurrence
Chief Justice Burger, wrote a separate concurring opinion in order "to raise some questions likely to arise in this area in the future."[43]
:{Burger wrote to emphasize the difficulty in differentiating media corporations from other corporate entities.[44] He also pointed out that media conglomerates were a more likely threat than the appellants to the public interests raised by the state of Massachusetts, due to their immense influence.[45] Thus, Burger concluded that "no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence".[46]
Burger pointed out that as newspapers merged with global media conglomerates, separating corporations from media had become untenable.[44] Therefore, Burger argued, restrictions on speech such as the Massachusetts statute necessitated a great deal of caution.[47] "In short," Burger wrote, "the First Amendment does not 'belong' to any definable category of persons or entities: it belongs to all who exercise its freedoms."[47]}:
Dissents
A dissenting opinion by Justice White was joined by Justices Brennan and Marshall.[47] In the dissent, White disagreed with the Court's opinion that the statute abridges the speech rights of corporations.[48] "By holding that Massachusetts may not prohibit corporate expenditures or contributions made in connection with referenda involving issues having no material connection with the corporate business," White wrote, "the Court not only invalidates a statute which has been on the books in one form or another for many years, but also casts considerable doubt upon the constitutionality of legislation passed by some 31 States restricting corporate political activity."[49]
White wrote that the Court had erred in not recognizing that the "state's regulatory interests... were themselves derived from the First Amendment."[49] Specifically, White claimed that "the state had a first amendment interest in 'assuring that shareholders are not compelled to support and financially further beliefs with which they disagree.'"[50] The only purpose uniting all shareholders, White argued, is to make a profit.[51] Any issue not related to business interests could diverge from the interests of individual shareholders.[51]
White also argued that states have the ability to prevent threats from corporate entities to the political process.[52] "The State need not permit its own creation to consume it," White wrote.[52] White noted that the nation had a history of recognizing the need to limit the influence of corporations in the political process, citing United States v. Auto Workers, in which the Court held that the primary purpose of a federal act was "to avoid the deleterious influences on federal elections resulting from the use of money by those who exercise control over large aggregations of capital."[53]
Justice Rehnquist, in a separate dissent, sharply criticized the Court's decision.[54] Rehnquist pointed out that, while the issue of whether corporations had the right to voice their opinions on political issues was new to the Court, the constitutional permissibility of restrictions on such speech had been considered and approved by Congress and over thirty states.[55] He argued that this consensus by so many governmental institutionals should not be ignored in the Court's decision.[55]
Furthermore, Rehnquist claimed that corporate speech is only protected such as it connects to commercial interests.[56] Rehnquist concluded, "although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes."[57]
Rehnquist asserted that corporate liberties did not include the right to influence and engage in political issues:
I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid.[58]
From this conclusion, Rehnquist argued that the dissemination of information to the public is not diminished by restrictions on corporate speech on political topics.[58] Therefore, in his view, "all natural persons... remain as free as before to engage in political activity."[58]
Further Supreme Court rulings
In 1990, the Supreme Court in Austin v. Michigan Chamber of Commerce upheld a state law prohibiting corporate independent expenditures, reasoning that the “government has a strong interest in preventing the wealth of corporations from distorting elections for public office.”[59] The 2003, Supreme Court majority in McConnell v. Federal Election Commission “relied on Austin” to preserve new federal campaign restrictions of the Bipartisan Campaign Reform Act (2002).[60] In 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin and returned to the principle established in Buckley and Bellotti that “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.”[61][62]
Austin v. Michigan Chamber of Commerce
:{In 1990, the Supreme Court ruled in Austin v. Michigan Chamber of Commerce that even though the First Amendment did protect corporate expression, restrictions on independent expenditure were justified due to the compelling interest to prevent corruption or the appearance of corruption in campaigns.[63][64] The Austin majority quoted Bellotti in agreeing that political speech did not lose First Amendment protection “merely because the speaker is a corporation.”[65][66][30] However, the Austin majority held that the Michigan Chamber of Commerce, a non-profit corporation that wanted to publish a newspaper advertisement supporting a candidate, did not qualify for the non-profit exemption established in Federal Election Commission v. Massachusetts Citizens for Life, Inc (1986).[67]
The dissent in the Austin case cited the statement in Bellotti that “the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.”[68][69][70] The dissent found that Massachusetts’s law discriminated on the basis of the speaker’s identity, and argued that the precedents of the Supreme Court, such as Bellotti, condemn this type of censorship.[68][71] Scholars agree that the Austin decision was inconsistent with precedent in that the Court had previously never upheld a statue that regulated corporate independent expenditure because of a state interest in preventing corruption.[70][72][73][74]}:
McConnell v. Federal Election Commission
In 2002, the Supreme Court in McConnell v. Federal Election Commission upheld the two major provisions of the Bipartisan Campaign Reform Act, which were the bans on unrestricted “soft money” donations to political parties and on electioneering communications, which are defined as any broadcast that refers to a federal candidate and is aired within a designated time frame of that candidate’s election.[75][76] The McConnell majority moved away from the Bellotti decision by allowing such restrictions on corporate donations.[77][78] The majority accepted legislative judgment that corporate treasuries represent a threat of corruption when deployed directly in candidate elections.”[79] The McConnell dissent characterized the Austin argument concerning the “corrosive and distorting effects” of corporations as the notion that corporations “will be able to convince voters on the correctness of their ideas.”[80][81] The dissent argued that using this reasoning, simply “winning the marketplace of ideas” could be considered evidence of corruption.[80][81] They argued that this conclusion opposed the First amendment, citing the statement from Bellotti that “the fact that advocacy may persuade the electorate is hardly a reason to suppress it.”[82][83]
Citizens United v. Federal Election Commission
:{In 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce (1990), portions of McConnell v. Federal Election Commission (2003), and Section 203 of the Bipartisan Campaign Reform Act (2002) that prohibited electioneering communications by corporations.[84] The Harvard Journal of Law and Public Policy described the reasoning of the Citizens majority as based on two propositions.[85] The first was that the Court has recognized that “First Amendment protections extend to corporations,” for which the Court cited Bellotti as an example.[85][86][87] The Court “returned to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity.”[88] The Court cited Bellotti in arguing that political speech is "indispensable to decision making in a democracy and [that] this is no less true because the speech comes from a corporation."[89][30] The second proposition addressed contribution expenditure and corruption.[85] The Court ruled that independent expenditure limits were unconstitutional because, unlike campaign contribution limits, they fail to “serve any substantial government interest in stemming the reality or appearance of corruption in the electoral process.”[85][90]
^ The Court argued, “Austin upheld a corporate independent expenditure restriction” by recognizing a “new governmental interest” in preventing corruption to “bypass Buckley and Bellotti.”[91] The Court rejected the anti-distortion reasoning argued in Austin and returned to the qui pro quo conception of corruption used in Buckley, stating that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”[92][93] In overruling Austin, the Citizens majority insisted, “before Austin, the court had not allowed the exclusion of a class of speakers from general public dialogue.”[94][95] The Court did concede that the Bellotti case “did not address the constitutionality” of bans on “corporate independent expenditures to support candidates.”[62][94] However, the court reasoned that such bans “would have been unconstitutional under Bellotti’s central principle that the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.”[62][94]}:
Effects on policy
Effects on legislation
While the First National Bank of Boston v. Bellotti ruling set a precedent for allowing corporate spending in elections, it did not directly lead to federal campaign law changes because of its narrow focus.[96][97] The Bellottidecision focused on state referenda, not the election of candidates.[96][97]
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gillette DEC and
Harry G. Stoddard became a vice president of Wyman-Gordon in 1911 and was appointed President in 1931. He also had interests in banking and was part owner of the Worcester Telegram.[7] His son Robert Waring Stoddard joined the company in 1929 and succeeded Harry G. Stoddard as president in 1955, holding that position until being elected chairman in 1967. He was one of the founders of the right-wing and anticommunist John Birch Society.[8]
Stoddard was opposed to the Civil Rights Act of 1964, which would make racial discrimination illegal. In 1964, the company employed black workers only as janitors. Abbie Hoffman was the press officer for a group of civil-rights agitators who targeted the Worcester plant for picketing. Later, they filed petitions with the Massachusetts Commission Against Discrimination and the U.S. Air Force. In July that year the company agreed to change its hiring practices.[9]
Powell Joins Supreme Court - In January 1972, Powell will join the Supreme Court, where he will become regarded as a moderate-to-conservative justice, sympathetic to business interests but not unwilling to consider other points of view. (Though the press will subsequently publish leaked copies of the memo, no senator will ask Powell about his memo or his business interests in his confirmation hearings.) One of his most pro-business decisions ishis majority opinion in 1978’sFirst National Bank of Boston v. Bellotti, in which Powell will create a First Amendment “right” for corporations to influence ballot questions.
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Citizens United was the capstone on a remarkable series of cases, dating only to the 1970s, that revolutionized the application of the First Amendment in the corporate context. Very few people realize just how quickly this constitutional revolution has occurred; very few people realize that American corporations thrived for the first two centuries of American history with virtually no First Amendment protections.
In the early 20th century, First Amendment cases involving firms tended to involve media companies, as when Louisiana Gov. Huey Long imposed special taxes on newspapers (a clear attempt to punish them). It was generally assumed that the “speech” of business corporations was no more free from court scrutiny than the language of their contracts or their SEC filings.
That finding was then broadened and expanded in National Bank of Boston v. Bellotti(1978), which held that corporations can contribute to ballot initiatives, and again in Central Hudson Gas & Electric Corp. v. Public Service Commission(1980), which asserted that a utility could run advertisements promoting the use of electricity. Those two cases continue to be cited in almost all commercial speech cases — and they are cited more and more frequently. Citizens United affirmed those cases and extended them to campaign finance laws.After his appointment to the high court in 1971, however, Justice Lewis F. Powell Jr., a former business lawyer who ardently believed that corporate America was being undermined by the public’s support for reformers like Ralph Nader, helped reinvent the Court’s doctrine in this area. In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), the Court said, on First Amendment grounds, that the state could not forbid pharmacists from advertising prescription drug price — a remarkable departure from precedent.
Despite the “free speech” rhetoric, corporations are not simply seeking to offer opinions about public policy issues. They do that all the time, routinely spending millions to fund ads, research, policy papers, and lobbying activities. Today corporations are claiming that their “rights” to speak clash with longstanding forms of regulation of business activity. Whenever they are required to disclose information to consumers, regulators, the public, or enforcement officials, they argue, their First Amendment rights are implicated. Whenever they seek or transmit information, they say, they are “speaking,” and the First Amendment gives them the right to do that without fear of consequences...
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Corporate Speech and the First Amendment: History, Data, and Implications
Constitutional Commentary, Forthcoming
41 Pages Posted: 9 Mar 2015 Last revised: 14 May 2015
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John C. Coates, IV
Harvard Law School
Date Written: February 27, 2015
Abstract
This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking.
The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson.
Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.
Keywords: First Amendment, corporations, Court of Appeals, Virginia Pharmacy, Bellotti, Central Hudson
JEL Classification: D72, K10, K22, K23, K42, L51
Suggested Citation:
Coates, IV, John C., Corporate Speech and the First Amendment: History, Data, and Implications (February 27, 2015). Constitutional Commentary, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2566785 or http://dx.doi.org/10.2139/ssrn.2566785
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