Corporations Are Not People

by Jeffrey D. Clements

  Second, the successful corporate rights campaign created a corporate trump card over public interest laws. If laws that were inconvenient to corporate business models somehow made it through the corporate lobbyist machine, corporations now had constitutional “rights” to attack the laws in the courts. It no longer mattered if the majority of people and our representatives chose laws to curb pollution, require disclosure, protect the public health, or nurture small businesses and local economies. The democratic process was no longer enough to decide the issue. After the creation of “corporate speech” rights, it was now up to federal judges to decide whether the law served an “important” state interest and was not too “burdensome.”

  The Lost Promise of Earth Day

  On that far-off Earth Day in 1970, Americans reclaimed the water, air, land, and forests that belong to all of us and to our descendants. We reclaimed the promise of government of the people, where people and our representatives would weigh, debate, and decide the balance of private and public, corporate and human. Since that spring day in 1970, we have pushed resources and the ecological systems on which life depends to the breaking point. Even as the oil, gas, and coal corporations mimic the strategy of the cigarette corporations to create a fraudulent “controversy” and “open question” about the global warming “hoax,” we have ripped past the point of no return on climate pollution.

  While the evidence of national and global environmental destruction at a level that will challenge our civilization and way of life is more compelling now than in 1970, our leaders in government are not even debating, let alone enacting, possible solutions. Incredibly, the current debate in Congress is not what we can do to save our world but whether Congress should strip the Environmental Protection Agency of its authority to regulate pollution that causes the global climate crisis.

  Corporate media might tell you that the reason for inaction is that Americans oppose environmental regulation and oppose drastic changes to address the energy and environmental crisis. Yet there is little reason to believe that this is true. In fact, try an experiment. Find a moment to talk seriously in a nonpolitical, nonconfrontational way with your friends, neighbors, or family members, regardless of what political party or philosophy they may favor. I bet that you will find that they too think that we cannot continue to rely on corporations to protect freedom for us and that corporate business as usual will condemn us to disastrous energy, economic, and environmental policies and ensure that we pass to our children a very bleak and weak nation and world.

  This basic understanding of the connection between our state of decline and crisis on one hand and our corporate-driven energy, environmental, economic, foreign and military policy on the other, is one of the many points of consensus among the American people that the corporatist political elite ignores. According to an independent, nonpartisan 2010 Pew Research poll, for example, huge majorities of Americans favor better fuel efficiency standards for cars and trucks (79 percent), more funding for alternative energy (74 percent), more spending on mass transit (63 percent), and tax incentives for hybrid or electric vehicles (60 percent).

  Similarly, for years, most Americans have supported, and still support, stronger, not weaker, environmental and energy policies. This is true even in times of recession, terrorism, and deep concern about budgets.26 From 1995 to 2008, when the independent multiyear Gallup poll was last done, through every variety of political environment, from good economies to bad, from terrorist attacks to war, the American people have been consistent in the response. More than twice as many Americans say we need “additional, immediate, and drastic action” to prevent major environmental disruption, compared to those who say “we should just take the same actions we have been taking on the environment.” The percentage of those identifying a need for “drastic, immediate action” was 35 percent in 1995, 38 percent in 2007, and 34 percent in 2008. When you add in those who say “we should take some additional action,” the range of Americans who want better, stronger, tougher environmental protection has stayed between 80 and 90 percent over the past ten years. The percentage of those who chose the status quo answer (“we should just take the same actions we have been taking on the environment”) has ranged from 13 to 20 percent.

  For years, most of us have known that the gathering and urgent environmental and energy crisis cannot be ignored, but what has our government done? Maintain the status quo, more or less, and usually much less as the global environmental crisis has worsened and the demand for fossil fuel exploitation soars.

  Polls are not infallible, but I suspect that these results would be duplicated in most family discussions around the dinner table. And I believe that we would see a similar disconnect between what people know about the state of our nation and the world and what the corporate-dominated government does. Whether the issue is the environment, the economy, the decades-long wars in the Middle East and bloated military budgets, agri-corporate subsidies and industrial food systems, or corporate welfare, what most people think or want out of our government does not matter much anymore.

  We have become accustomed to thinking that we cannot change, that our problems are too big, that our government cannot be effective. This was not always so, and it does not have to be so now. The choice we face in America now about whether to succeed or fail begins with our choice about whether we agree with Lewis Powell, the U.S. Chamber of Commerce, and the corporate rights movement that massive, global corporate entities are the same as people.

  Chapter Two

  Corporations Are Not

  People—and They Make

  Lousy Parents

  If the tobacco companies really stopped marketing to children, the tobacco companies would be out of business in 25 to 30 years because they will not have enough customers to stay in business.

  —Bennett Lebow, cigarette corporation CEO1

  “F#*k you.” That (except without the sanitizing symbols) is what Bad Frog Brewery, Inc., a corporation chartered under Michigan law, demanded the Constitutional right to say on its labels. In the mid-1990s, the corporation wanted to market its beer to the young and rebellious with a foul-mouthed frog who, as the label said, “just don’t care.” The corporation offered a mascot on the label, a large cartoon frog elevating its middle finger. Because New York law prohibits alcohol labels that are “obscene or indecent” and “obnoxious or offensive to the commonly and generally accepted standard,” the state liquor authority refused to approve the label for sale in New York. The corporation balked at complying with the law and filed a lawsuit against the New York State Liquor Authority and the people who served on it.

  At first, Bad Frog insisted that the up-yours gesture really was a “symbol of peace, solidarity, and goodwill.” Three judges of the United States Courts of Appeals in New York were assigned to the case and gravely noted its “significant issues.” Despite the earlier claim that the up-yours gesture meant peace and solidarity, Bad Frog now admitted on appeal that its beer label conveyed, “among other things, the message ‘f&*! you.’” (The court’s opinion helpfully explains that this was “presumably a suggestion of having intercourse with yourself.”) The court of appeals ruled in Bad Frog’s favor and voided the New York law, leaving the people powerless to stop corporations from spewing vulgarities from every beer shelf in the land.2

  OK, it’s not the most serious case in the world. Maybe most people don’t really care if lewd beer labels fill the shelves, although the people of New York cared enough to have a law preserving some decency in the beer aisle. Still, the case of the finger-waving frog reflects the hallmarks of the new corporate rights era: the shameless (“honest, the finger means peace, solidarity, and goodwill”), the irresponsible (“he just don’t care,” placed beside the health warning label), and the display of power over the people (“we will do whatever sells, and your law can’t stop us”). These themes now run through far more serious areas of our national, community, and family life than beer labels.

  Beyond Beer L
abels

  The fabrication of corporate constitutional rights has not only changed our politics and law; corporate rights and corporate power affect everything: the water we drink, the air we breathe, the food we eat, what our kids learn in school (and what they buy on the way home), what kind of health care we get, the wars we fight, and the taxes and debt we and generations to come will carry.

  Do you want to know if your food is safe? Do you want to be able to choose milk, cheese, and yogurt that come from cows that are not injected with a genetically engineered drug that is banned in most of the world? Do you want to know if your water supply has been contaminated with diesel fuel, toxic chemicals, and radiation so that global energy corporations can “frack” natural gas? Do you want to stop toxic-pesticide manufacturers from claiming that their products are “safe for kids” in big letters on the label? Do you want the school to which you are required to send your kids to be inundated with youth-targeting advertisements? Do you want college education to be available without Wall Street corporations sucking billions of dollars of tax money into Ponzi-like for-profit student-debt schemes? In the new corporate rights era, the corporations say you can’t.

  The Right to Addict Kids

  What should we do when a wealthy, suit-clad drug pusher sidles up to children and uses cartoon images and tricks to exploit teen insecurities and risk-taking to get kids hooked on a fatal drug? What kind of person would hang around a schoolyard trying to get teens and preteens hooked on an addictive drug known to kill hundreds of thousands of people a year? That’s exactly what Philip Morris and the other cigarette corporations did for decades. When parents, lawmakers, prosecutors, and judges tried to stop them, the cigarette corporations self-righteously insisted on the corporate “free speech right” to say, well, to say what Bad Frog Brewery likes to say.

  In the late 1990s, the people of Massachusetts tried to protect school kids from the cigarette companies’ “youth-targeting” campaigns, banning cigarette ads within 1,000 feet of a school or playground. The U.S. Supreme Court struck down the law in 2001, calling it a violation of the speech rights of the cigarette corporations. In many ways, this case shows how much our courts and our Constitution have shifted away from the people and to corporations in the years since the 1970s, before the Powell-Chamber of Commerce campaign began.

  Back in 1971, Lewis Powell, as a private lawyer for the cigarette companies, argued that the corporations had a First Amendment right to spread corporate lies in response to what the corporations called “propaganda” about smoking and health. He and the cigarette industry were essentially laughed out of court.3 Back then (and in the two hundred years before that), the corporate legal foundations and the Supreme Court had not grafted the new concept of corporate speech into the Bill of Rights. Thirty years later, though, everything had changed. In 2001, the Supreme Court did exactly what the cigarette corporations asked, striking down the Massachusetts law that required cigarette advertisements to stay 1,000 feet away from schools and playgrounds.

  Why Did We Need a School

  Playground Cigarette Law?

  Inside the tobacco corporations, they referred to children as “replacement smokers.” Corporate marketing plans and sales documents analyzed the need to replace smokers who died; children under eighteen years old were prime targets. The cigarette corporations did studies showing that if kids did not start smoking by the time they were eighteen, they probably never would become regular smokers. For decades, the cigarette corporations studied and researched nicotine, smoking, and the habits of teenagers. They spent millions of dollars on teenager tracking, marketing, and manipulation. The cigarette companies secretly called the strategy of addicting teens to cigarettes a “key corporate priority.”

  For decades, cigarette corporations tried to dispute allegations like these. They can do so no more after the Court of Appeals affirmed the 1,000-plus-page decision of Judge Kessler, the federal judge who oversaw the 2006-2007 racketeering trial of the cigarette corporations. Judge Kessler concluded: “The evidence is clear and convincing—and beyond any reasonable doubt—that Defendants have marketed to young people twenty-one and under while consistently, publicly, and falsely denying they do so.”4 The judge quoted Bennett Lebow, the president of a cigarette manufacturing holding corporation, who testified, “If the tobacco companies really stopped marketing to children, the tobacco companies would be out of business in 25 to 30 years because they will not have enough customers to stay in business.”5

  Judge Kessler’s judicious reference to “young people under twenty-one” actually gives the cigarette corporations more credit than they deserve. Inside the cigarette corporations, the term “younger adult” was a euphemism. The terms younger adult and YAS (standing for “younger adult smoker”) are corporate-speak for child or teenager. Corporate marketing studies of YAS in the tobacco companies included children as young as ten years old, and the cigarette corporations studied the percentage of “twelve- to seventeen-year-olds” who “smoked at least a pack a week.” They called teens aged 15 to 19 the “new-smoker age group,” and they noted with encouragement that “the thirteen-year-old age group ‘shows the most dramatic increase in proportion of smokers.’”6 The cigarette corporations knew that “YAS are the only source of replacement smokers—[fewer] than one-third of smokers start after age 18,” and the companies spent hundreds of millions of dollars to increase sales to children between the ages of twelve and seventeen.7

  According to Judge Kessler, “Defendants realize that they need to get people smoking their brands as young as possible in order to secure them as lifelong loyal smokers.” She quoted dozens of internal corporate documents, including an “opportunity analysis” weighing how to exploit teen insecurities:

  Socially insecure, they gain reinforcement by smoking the brands their friends are smoking, just like they copy their friends’ dress, hairstyle, and other conspicuous things. To smoke a brand no one has heard of—which all new brand names are—brings one the risk of ostracism. It’s simply not the “in” thing to do.8

  What drives so many people to go to work each day, year after year, trying to figure out how to hook children on smoking? A cigarette corporate executive provides the answer in a long-concealed internal corporate document: the possibility of billions of dollars in corporate profit. “If we hold these YAS for the market average of 7 years,” he wrote, “they would be worth over $2.1 billion in aggregate incremental profit. I certainly agree with you that this payout should be worth a decent sized investment.”9 By the 1990s, the “decent-sized investment” targeting kids for cigarette sales had succeeded in ensuring that 72 percent of six-year-olds in America recognized the cartoon symbol of Camel cigarettes.10

  This is why government needed to step in. Several states, including Mississippi, Washington, and Massachusetts, had begun law-enforcement actions against the cigarette conspiracy by the mid-1990s. These cases began to uncover the truth about the conduct of the cigarette corporations, and by 1998, Massachusetts banned outdoor cigarette advertisements within 1,000 feet of a playground, elementary school, or secondary school.11 Massachusetts Attorney General Scott Harshbarger said the law was needed “to stop Big Tobacco from recruiting new customers among the children of Massachusetts.”12

  In response, the tobacco corporations went on offense; they cried “free speech!” and sued Harshbarger to block the law. They turned to the Powell-Chamber corporate rights theory that by 2000 had become a very potent tool for corporations to evade responsibility, accountability, and public oversight. The corporate “legal foundations” imagined by Lewis Powell and the Chamber of Commerce back in the 1970s were now fully funded by millions of corporate dollars and rushed into the fray. They filed briefs alongside the tobacco corporations, demanding that the Supreme Court protect the “vital role in American society” of the cigarette corporations. They quoted Henry David Thoreau and Justice Benjamin Cardozo, and they weirdly complained that during World War II, “commercial speech became a
casualty as surely as Veronica Lake’s ‘peekaboo’ hairstyle.”13

  The corporate lawyers and legal foundations repeated the now familiar refrain that corporations are the same as people. They said that restricting the cigarette corporations’ advertising around playgrounds and schoolyards violates corporate speech rights under the First Amendment.14 The Supreme Court, by this time fully shaped by the corporate power legacy of Lewis Powell, who had retired in 1987, agreed and struck down the Massachusetts law.15 The law keeping Joe Camel and the cigarette ads away from schools and playgrounds was dead.

  Cigarette Corporations Aren’t People

  Sometimes First Amendment cases can be infuriating because the freedom at stake is often the freedom to say things that are unpopular, cause offense, challenge or undermine government policy supported by many, or inflict emotional pain. Infuriating though that can be, people usually appreciate that the Supreme Court’s protection of someone’s unpopular free speech also protects a core American value and benefits all of us. But when the Supreme Court saved the “right” of cigarette corporations to advertise around playgrounds and elementary schools, was a single human being made any more free? Was our public debate and state of knowledge any more enriched?

  When the government suppresses real speech, the speech of real people, we all lose some of our freedom. Our ability to govern ourselves is compromised when ideas and information are restrained, even bad ideas and unpleasant information. But when we regulate corporate economic conduct, what rights of anyone are lost? Is speech even at issue at all?

  The Massachusetts law regulated corporate, commercial conduct, not speech. If the Massachusetts law curtailed the youth-targeting strategies of cigarette corporations, sales might have dropped, but how does that create less freedom of speech for anyone? Any human being who had something to say about cigarettes and youth smoking remained free to say or write whatever that person wanted, wherever and whenever he or she wanted, about cigarettes, youth smoking, or anything else. The Massachusetts law about cigarette advertising had nothing to do with people or groups of people speaking, writing, or expressing their point of view in any way. Even if someone wanted to stand outside a public park or school with a sign saying, “I love cigarettes and kids should, too,” the Massachusetts law did not touch them.