In the unlikely event that a real person actually did that, though, what would happen? Perhaps we would see how free speech is supposed to work in America: other people would talk with the miscreant and ask him or her to consider whether that was a decent thing to do. The creep might respond, and debate would ensue. At some point, the cigarette enthusiast or his or her opponents would get tired and move along. If the smoking advocate really had strong views about the merits of smoking, the debate might continue the next day when the person came back again or in writing, interviews, meetings, or wherever people wanted to talk, listen, and debate. The Massachusetts law prevented none of that.
Try talking or debating with Joe Camel; it doesn’t work. It doesn’t work because Joe Camel and the corporation that spawned him are not people. Corporations never get tired, and they never move along until the money stops or the law steps in. People speak. Corporations do not speak. With the Court’s new corporate speech theory, corporations won a dangerous immunity from the law and from the will of the people, while we the people gained nothing. Indeed, we lost freedom and we lost a tool of self-government.
Monsanto’s Genetically Modified Drug
While the cigarette child-targeting fight was going on in Massachusetts, the people of Vermont were in a fight of their own. They were trying to preserve the right to know how our food is grown and made and the right to choose what kind of farming we want to support. As with the people in Massachusetts and the cigarette corporations, the people of Vermont were about to learn that winning the debate and overcoming corporate lobbyists and the likes of Monsanto Corporation in the legislative process are not enough. Monsanto now holds the corporate constitutional trump card.
Monsanto is a transnational chemical, biotech, and industrial corporation with more than $11 billion in annual global sales of chemicals, pesticides, herbicides, and genetically modified seeds and animal drugs. Some of Monsanto’s products have included DDT, saccharine, aspartame, sulfuric acid, Agent Orange, and various plastics and chemical products. Monsanto’s recent products include genetically engineered food and agriculture products that are variations of animal and plant pesticides and herbicides. In response to questions about the safety of its “biotech food,” Monsanto’s spokesperson says, “Monsanto should not have to vouchsafe the safety of biotech food. Our interest is in selling as much of it as possible. Assuring its safety is the FDA’s job.”16
In the 1990s, Monsanto started selling a genetically engineered drug to be injected into the blood of dairy cows to force them to produce more milk. The drug was rBST (also called rBGH by some and labeled Posilac by Monsanto). Monsanto had used recombinant (meaning artificially created) DNA to fabricate rBST. BST stands for bovine somatotrophin, a naturally occurring hormone in cows, and BGH refers to “bovine growth hormone.” The r in rBST and rBGH stands for “recombinant DNA” and refers to the Monsanto drug, which is not natural.
Most democratic countries in the world banned the use of rBST in any dairy product intended for human consumption. Canada prohibited the drug after “more than nine years of comprehensive review of the effects of rBST on animal and human safety, and consideration of the recent findings by two independent external committees.”17 All twenty-seven countries of the European Union, as well as New Zealand and Australia, also banned rBST. In the United States, Monsanto got its way. The Food and Drug Administration approved the use of rBST at the end of 1993. The FDA brushed aside the farmers, mothers and fathers, scientists, and other people around the country who raised serious questions about rBST.
Many people opposed the use of the Monsanto’s drug, including Dexter Randall, a sixty-five-year-old dairy farmer who has lived and worked in Vermont all his life. Randall and others got involved in an organization called Rural Vermont and tried to stop the FDA from approving the Monsanto drug. They presented studies showing elevated antibiotic residues in milk (increased antibiotics were needed because rBST increased disease in cows). They pointed to other studies showing higher levels in rBST milk of an insulin-like growth factor linked to breast cancer in humans and other dangers. They cited the absurdity of forcing cows to produce more milk, driving milk prices lower, at a time when family dairy farms all over the country were failing and taxpayers were paying millions of dollars to keep milk prices high enough to prevent a collapse of farm communities.
“Organic dairy farmers were already not getting paid enough for their milk, and when rBGH went on the market they suffered even more,” says Randall. “But in addition to these economic concerns there were the health impacts of the product—the possible harm it could cause to livestock and humans. No long-term studies had been done. None of the truth was brought out. Our government let corporations override everything that made sense to the people.”18
The Vermont farmer says, “Zillions of studies were presented to the FDA, but anything they saw they just turned the other way.” The FDA claimed that it lacked the authority to consider “social” or “economic” factors or to require a label on rBST dairy products. The FDA, though, reported that “a State that has its own statute requiring food labeling based on a consumer’s right-to-know would not be preempted by FDA from requiring rBST labeling.”19
Randall and many other people in Vermont went to work to ensure that Vermont law would protect the people’s right to know. “We lobbied our state senators and representatives, sent letters to the editor, talked all over the place, made people aware of the problem,” Randall says. “There was lots of involvement. We basically held a protest in front of the statehouse, just to get our legislators and the public to take notice. We tried talking to our commissioner of agriculture and to other officials there.”
Monsanto pushed back, and progress was slow. Randall says, “There was always money overriding us—the industry rules. The Grocers’ Association was screaming bloody murder, having to put labels on their products. Is it such a crime? People were still going to buy their products, but now they had a choice. I’ve always been a person for choice—you need to choose what size pants you’re going to buy, don’t you?”
Finally, after organizing, researching, testifying at hearings, and letter writing, the people persuaded the Vermont legislature to pass, and the governor to sign, a law to protect the right to know about our food. The 1994 Vermont law said, “If rBST has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such.”20
In deciding how to implement the law in a balanced way, the Vermont Department of Agriculture held four hearings around the state, including one with interactive television. Ninety-nine speakers took the time from work and home to participate in the hearings, and 152 written comments were filed.21 Monsanto and the industrial dairy and grocery groups certainly weighed in, but according to the commissioner of agriculture in Vermont, “most individuals expressed that they felt they had a right to know what they wanted to purchase for themselves and their families.”22
Monsanto and the industrial dairy corporations lost the public debate, lost the debate in the legislature, and failed to persuade the commissioner of agriculture to keep people in the dark about rBST. They weren’t done, though. Monsanto had Covington & Burling, a corporate law firm in Washington, D.C., to lead the attack.
For years, Covington & Burling had serviced the drive to shelter corporations from public oversight by creating new theories of “speech.” According to Judge Kessler in the federal racketeering trial of the cigarette corporations, Covington & Burling even took a leading role among corporate lawyers in furthering the illegal cigarette industry scheme: “Two of those law firms,” she said, “in particular Covington & Burling, became the guiding strategists for the Enterprise and were deeply involved in implementation of those strategies once adopted.” She added, “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”23
In Vermont, Covington & Burling represented the interests of Monsanto and
the industrial dairy lobby in trying to stifle knowledge and disclosure about milk products derived from rBST-treated cows. They claimed that corporate speech rights entitled the industry to disregard the new right-to-know law. They insisted that Monsanto and the industry could refuse to disclose when milk and dairy products came from cows treated with Monsanto’s genetically engineered rBST.
During the lawmaking process, the industry complained about costs and claimed that giving information to people would only cause “fear and uncertainty.”24 Employing odd euphemisms, the corporate lawyers called cows injected with the Monsanto drug “supplemented cows,” while natural cows became “unsupple-mented cows.” Covington & Burling explained why “fear and uncertainty” would result from the truth: “Mandatory labeling of milk products derived from supplemented cows will have the inherent effect of causing consumers to believe that such products are different from and inferior to milk products from unsupple-mented cows.”
What about farmers or dairies that did not want to inject the Monsanto genetically engineered drug into the blood of their cows; they should be free to tell people about the natural way they make their milk, right? Oh, no, said the corporate lawyers: “The industry’s experience in recent months demonstrates that voluntary ‘rBST-free’ type labeling of milk and milk products has a high potential for misleading consumers and for sowing the seeds of uncertainty, distrust, and fear about the quality and safety of milk and milk products.” Thus, according to Monsanto and Covington & Burling, it is your right to know about your food—not Monsanto and its drug that is banned in most of the civilized world—that sows the “seeds of uncertainty, distrust and fear.”
Monsanto and the industrial dairy corporations not only threatened to sue Vermont but also began to intimidate and silence farmers, dairies, and stores that tried to sell “rBST-free” milk.25 Monsanto would even file a federal lawsuit against a Maine dairy that used its labels to tell people that the dairy would not use rBST. The dairy label that Monsanto sued to eliminate stated, “Our Farmers Pledge: No Artificial Growth Hormones.”26
Nevertheless, people like Dexter Randall stood up to the corporate intimidation, and Vermont went ahead with its right-to-know law. Covington & Burling and the industry then followed through on their threat to sue. Now that Vermont law supported the people’s right to know about rBST, the cry of “free corporate speech!” became the cry of “corporations are like people and have the right not to speak!” Covington & Burling argued that the “public right to know” must fall to “a manufacturer’s right to decide when to speak and when to remain silent.” According to a Covington & Burling brief filed in court, “Corporations have the same rights to remain silent as individuals.”27
At first, Vermont had some success in the case. The chief judge of the federal court in Vermont, J. Garvan Murtha, concluded that corporate rights do not overpower the people’s right to know:
Apparently, a majority of Vermonters do not want to purchase milk products derived from rBST-treated cows. Their reasons for not wanting to purchase such products include: (1) They consider the use of a genetically-engineered hormone in the production unnatural; (2) they believe that use of the hormone will result in increased milk production and lower milk prices, thereby hurting small dairy farmers; (3) they believe that use of rBST is harmful to cows and potentially harmful to humans; and, (4) they feel that there is a lack of knowledge regarding the long-term effects of rBST.
According to Judge Murtha, “the First Amendment … does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.”28
The industry appealed to the same federal court of appeals that had decided the Bad Frog case. In the Vermont milk case, the court of appeals again sided with corporations and struck down the Vermont law. The court of appeals said that Judge Murtha had “abused his discretion” by failing to agree with the corporations that the law violated corporate speech rights. According to the court of appeals, the people of Vermont had caused a “wrong” to the industrial dairy manufacturers’ “constitutional right not to speak.”29
That was the end of the line for the Vermont law and for disclosure laws around the country. “It was a long, hard battle getting the legislation passed, and it wasn’t in place for any length,” says the dairy famer Dexter Randall. “We saw the end coming before it happened. I learned a lot about the power of corporations—about Monsanto’s power.”30
Corporate Rights Weaken People
and Citizenship
Look again at how the court of appeals labeled what dairy farmer Dexter Randall and so many other Vermont people had done by deciding to participate in our government of the people. According to the court, by passing a right-to-know law, the people of Vermont committed a “wrong” to the constitutional rights of others, specifically, to the industry’s “constitutional right not to speak.”
This is how the fabrication of corporate rights hollows out American citizenship. A successful demand by a person or class of people for rights amounts to a declaration that such a person or class is equal to everyone else and has an equal share of sovereignty in our nation. Government then is accountable to that person, rather than the other way around. When we accept that people have constitutional rights, we quite properly have disdain for those who deprive our fellow people of rights, and we will resist. At a minimum, we are careful, or should be, not to press for government action that might hinder rights of others. After all, in a society of people with equal rights, when the government violates the rights of any of us, none of us is secure.
When courts strike down laws where they conflict with constitutional rights, they make a statement about who we are as a people and as a country. As we come to accept these judgments of the courts (or when we do not), our culture and politics, and even our way thinking and acting, can change. Brown v. Board of Education ruled that segregation violates the equality rights of African Americans; that helped transform who we are and how we act. Reed v. Reed ruled for the first time in 1971 that laws that discriminate against women are wrong; that contributed to a transformation of how we view gender in America. Court cases about rights may reflect and accelerate, rather than cause, movements and change. Yet when the courts rule, an insistent proposition about American life begins to become a fact.
The same phenomenon tends to occur when courts declare corporations to hold constitutional rights, as Dexter Randall found out. Lewis Powell’s advice to the Chamber of Commerce in 1971 sought not merely to propose policies but to change American society. As Powell made clear, the creation of corporate rights is an “instrument for social, economic, and political change.”31
These corporate rights cases, then, mean much more than allowing the Bad Frog Corporation to say whatever it wants on its product labels or the cigarette corporations to target children for addiction to a fatal product or Monsanto to deprive people of information about food. All of that would be bad enough. The impact of these cases goes beyond their specific facts; they push people back from exercising vigilance about corporate power. Even mild proposals that might serve the public good, from environmental stewardship to disclosure and transparency in the financial system, now get buried under savage attacks from corporate interests. Those who might serve as potential public champions are accused not merely of being “wrong” but of violating constitutional principles. Public champions retreat into defensiveness and uncertainty. As with other major developments of previously unrecognized constitutional rights, the fabrication of corporate rights is changing American culture.
The new metaphor of corporations as people in our understanding of the Bill of Rights and self-government threatens to erode, perhaps we can say “corporatize,” the American character. We can see this in many areas of American life, from the state of our media to declining civic participation and voting. What was public for generations, from the sublime, such as mountains or groundwater, to the utilitarian, such as prisons, is shifting away from us. A combi
nation of political, economic, and legal corporate power is shifting not only the law and not only our public assets but even how we think about ourselves and what we teach our children. Perhaps the most poignant effect on our culture and society of the corporate power campaign is what we now seem willing to tolerate in the education of children and young adults.
Learning to Be Corporate
Education in America has long been linked to our egalitarian vision of a free, democratic people who govern a republic. Thomas Jefferson wrote, “Of all the views of this law [for public education], none is more important, none more legitimate, than that of rendering the people safe as they are the ultimate guardians of their own liberty.”32 The Supreme Court has relied on Jefferson’s view of public education “as a bulwark of a free people against tyranny” in concluding that “providing public schools ranks at the very apex of the function of a State.”33
Now schools and children have joined the Constitution, legislatures, and courts as subjects for increasingly aggressive assertions of corporate power and influence. The critical civic function of our schools—teaching equality, citizenship, the critical thinking and competence needed to participate in a vibrant, free society—is deteriorating to make room for corporate access to children’s minds and wallets. More corporations seek to turn schools into marketing outlets; more corporations seek to teach children, regardless of the views of their parents, to be consumers rather than citizens; and more corporations seek to make the curriculum itself reflect the corporations’ position on public issues. As corporations increasingly “embed” in education, will the next generation recognize when the promise of American self-government has evaporated, let alone summon the will to restore it?
Corporations Are Not People Page 6