Nike v. Kasky: corporations are not persons
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NATION BRIEFS
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Supreme Court to rule on Texas sodomy
law
June 11 On Sept. 17, 1998, John Lawrence and Tyron Garner
were having sex in the bedroom of Johns apartment in Houston.
They were adults and the relationship was consensual. They left the
front door unlocked. Police officers, responding to a false call and
looking for an armed intruder, entered the apartment with their guns
drawn. John and Tyron were arrested for violating the Texas sodomy law.
The two men spent the night in jail, were fined $200 each, and are now
considered sex offenders in several states.
Sodomy laws are still alive and well in 13 US states. Lawrence and Garner
were not the first nor the last to suffer from legalized homophobia.
In the old days, as an amicus curiae filed with the Supreme Court by
historians points out, proscription of non-procreative sexual activities
(including masturbation and sodomy) applied indiscriminately to male-female,
male-male, and human-animal relations. At that time, Sodomy
was not the equivalent of homosexual conduct. It was
understood to be a discrete act and not a persons
sexual orientation. The Cato Institutes amicus curiae explains
the purpose of those sodomy laws not as regulation of homosexual conduct
but protection of the community against public indecency
and protection of children, women, and weaker men against sexual
assault.
But by the beginning of the 20th century lawmakers started singling
out sexual inversion (i.e. homosexuality) as illegal. Discriminating
against certain citizens on the basis of their homosexual status is
an unprecedented project of the twentieth century, write the historians.
This peaked from the 1930s to the 1960s. Gay men and women were
labeled deviants, degenerates, and sex
criminals by the medical profession, government officials, and
the mass media. Indeed, in the 1960s, all fifty states had some
sort of sodomy law to criminalize oral and anal intercourse between
consenting adults, including in the privacy of their homes. Some of
those laws applied to all, while others specifically singled out homosexuals.
Whatever the case, gay and bisexual men were made to suffer the full
brunt of those pernicious enactments. Labeled as sexual psychopaths
by those laws, they were subjected to witch hunts, arrested, imprisoned,
deported, debarred from entering the country, discharged from pubic
employment and exposed as sex perverts to their families,
employers, and communities, according to the Cato Institutes
amicus curiae. They were also subjected to long incarceration and medical
experimentation and torture.
In 1973, Texas decriminalized heterosexual sodomy in 1973 while at the
same time specifically criminalizing homosexual sodomy.
That law, section 21.06 of the Texas Criminal Code, is what got Lawrence
and Garner in trouble. That law has now been accepted for review by
the Supreme Court.
Not for the fist time is the Supreme Court reviewing a sodomy law. In
1986 the Georgia sodomy law was challenged all the way to the Supreme
Court by a gay man. It quickly became one of the most infamous civil
rights cases, known as Bowers v. Hardwick, and a decidedly unpleasant
milestone in the history of gay liberation. The legal challenge was
based on the federal right to privacy.
Michael Hardwick was a bartender in a gay bar in Atlanta and was targeted
for harassment by the police. In 1982, officers were let into Hardwicks
apartment to serve a warrant and found him in his bedroom having oral
sex with another man. Both were arrested and charged with sodomy. Those
charges were later dropped, but Michael courageously brought the case
forward with the purpose of having the sodomy law declared unconstitutional.
It wasnt to be. In a 5 to 4 decision the Supreme Court ruled that
nothing in the Constitution allows gay people to engage in consensual
sodomy.
The Georgia sodomy law was finally struck down 12 years later, in 1998,
by a 6 to 1 vote of the Georgia Supreme Court. The court ruled that
the law violated the right to privacy guaranteed by the state Constitution.
The law had lasted 182 years.
We cannot think of any other activity that reasonable persons
would rank as more private and more deserving of protection from governmental
interference than consensual, private, adult sexual activity,
said Chief Justice Robert Benham.
So the right to privacy in ones bedroom did finally prevail, if
not under US Construction, then under Georgia Constitution. Yet the
problem remained: sodomy laws are still constitutional in all states
other than Georgia.
As for Bowers, Georgias Attorney General at the time and chief
defender of the sodomy law, it was later discovered that while he was
prosecuting Michael Hardwick for sodomy, he was at the same time pursuing
a 10-year long adulterous affair with an office employee a crime
under Georgia law of same classification as sodomy and carrying the
same penalty.
The 1986 Supreme Court ruling in Bowers v. Hardwick has become widely
regarded as absurd, if not outright shameful, ranking in infamy not
far below the Dred Scott case of 1857. Even the courts majority
opinion was full of factual errors regarding the historical use of sodomy
laws, confirming the suspicion that the ruling was based on homophobia
and not legal grounds. And the consequences were devastating.
The Hardwick ruling has been used to deny gay men and lesbians
jobs, housing, and custody of their children, says Ruth Harlow
of Lambda Legal. Sodomy laws have also been put forward as a purported
rationale against enacting civil rights laws that bar discrimination
based on sexual orientation, subjecting gay people to second-class citizenship.
Now, 17 years later, the Supreme Court has a chance to revisit that
decision. The case 02-102, John Geddes Lawrence And Tyron Garner v.
Texas, was argued on Mar. 26. For the plaintiffs attorney Paul Smith
contended that the sodomy law should be struck down not only on privacy
grounds, but also because it violates the Equal Protection Clause by
permitting sexual intimacy only for heterosexual couples and therefore
turns gay people into a sexless second class with less rights than other
citizens.
For Texas, Harris Country District Attorney Charles Rosenthal argued
that the law is aimed at protecting marriage, family, and children.
He never explained what harm the law is supposedly protecting against,
other than moral corruption. There is no protected right to engage
in extra-marital sex [of any kind], he said, asserting the states
right to regulate any and all sexual practices, even those taking place
behind closed doors and among consenting adults.
Source: Indymedia
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Nike v. Kasky: corporations are not persons
Analysis by Jennifer Van Bergen
June 4 The case of Nike v. Kasky, currently before the
Supreme Court, involves a fundamental question about corporations that
unfortunately has not been raised by either the parties in the case
or the media.
Marc Kasky is suing Nike, Inc. under California laws regulating unfair
competition and false advertising. Kasky claims that when an internal
audit was leaked to the press that revealed illegal employment practices
in Nikes factories in China, Vietnam, and Indonesia, Nike responded
by issuing to the press numerous statements it knew to be false.
The issue before the Supreme Court is whether Nike can be held liable
for its misrepresentations under false advertising laws or whether its
various public documents and letters to the press and others are constitutionally
protected free speech.
Not addressed in the arguments before the Court, but underlying them
nonetheless is an invisible beast: the idea that corporations are people.
This is a notion that the National Lawyers Guild (NLG) opposes. The
Mission Statement of the NLG Committee on Corporations, the Constitution
& Human Rights states, in part: We oppose recognition of the
personhood of corporations under the Fourteenth Amendment. Protections
of the Bill of Rights are given to people out of a concern for human
dignity, liberty or equality. Corporate claims to such protections should
be rejected.
ReclaimDemocracy.org mirrors this sentiment: The notion that corporations
entities unmentioned in our Constitution - should enjoy protections
created for living human beings is a concept deserving burial deep in
the same dark closet as the legal precedents of slavery and separate
but equal.
The National Voting Rights Institute and ReclaimDemocracy.org, which
jointly filed an amicus brief for Kasky, state: The claim that
corporations possess a right to intentionally deceive the public has
no basis in the US Constitution.
Incorporation is a privilege granted by the peoples representatives
in state governments, and corporations must remain subordinate to our
democratic institutions. The discredited judicial creations of corporate
personhood and corporate political rights should be
unequivocally rejected by the Court.
The dangers of corporate
personhood
Nike argues that its statements should be protected under the First
Amendment.
This implies that Nike can be viewed as a person.
The notion of corporate personhood was adopted by the Supreme
Court under very dubious circumstances, when a court reporter used the
term in a head note he created for an 1886 Court decision that actually
declined to address the issue. (The case was Santa Clara County v. Southern
Pacific Railroad Co., 118 US 394.)
In a later 1889 case, Minneapolis & St. Louis Railway Company (129
US 26), Justice Field cited Santa Clara as holding that corporations
are persons, and that inaccurate notion of Santa Claras holding
remains today. Nonetheless, other Supreme Court decisions support the
opposite view. The Court stated in a 1990 decision, Austin v. Michigan
Chamber of Commerce, that because corporations have state-conferred
. . . structures, and [s]tate law grants [them] special
advantages, their political speech can be regulated by the state.
In other words, they do not have the constitutional right to free speech.
These special advantages include the ability to amass large
treasuries and immense aggregations of wealth. What
is wrong with immense aggregations of wealth? Isnt that the American
way: rags to riches? The problem is that in the corporate world those
who hold the wealth (stockholders) do little to create it, while those
who actually do the work, the employees of these corporations, get less
and less for their labors. (Recall Enron.)
In her book, The Divine Right of Capital, Marjorie Kelly asks:
Why have the rich gotten richer while employee income has stagnated?
Because thats the way the corporation is designed. Kelly
asserts that stockholders today reserve for themselves (and deny to
employees) the same privilege claimed by the French aristocracy before
the French Revolution: rights to endless streams of income detached
from productive contributions.
Equally as important, if not more so, is the fact, according to Kelly,
that [c]orporate capitalism embraces a predemocratic concept of
liberty reserved for property holders, which thrives by restricting
the liberty of employees and the community.
If we take Kellys statement as accurate, it should be clear that
granting corporations personhood subverts and endangers democracy. In
the early American republic, corporations existed only by special state
grant to promote the public good. Corporations today are no longer subject
to such restrictions. They now function like a secular aristocracy that
rules over a slave class. In light of the immense wealth and power held
by corporations, granting them equivalent rights as individuals is irrational
and dangerous.
The consequences of corporate personhood are not trivial. Jerry Mander
writes in his book In the Absence of the Sacred: Not being
human, not having feelings, corporations do not have morals or altruistic
goals. A nonhuman entity that cannot possess morals is certainly
not fit to be granted equal standing with a person. Indeed, granting
amoral entities so-called equal rights with persons, which because of
corporations great wealth and power become greater rights, is
so irrational it ought to be considered a kind of insanity.
Finally is the effect of corporations growth imperative on our
world. This effect, according to Mander, is now clearly visible,
as the worlds few remaining pristine places are sacrificed to
corporate production. Granting personhood to a mechanism for destruction
of our environment cannot be sound policy if the human race is to survive
and thrive.
Allowing an entity to usurp individual civil rights and harm the environment
is bad enough. But corporate personhood does yet more.
Activist William Meyers writes that corporate personhood changes
the relationship between people and corporations, between corporations
and the government, and even between the government and the people.
The effects of these changes in relationships range from loss of liberty
and income for citizens to the destruction and poisoning of the earth
and the corruption of the US government.
Meyers concludes: Corporate personhood allows the wealthiest citizens
to use corporations to control the government and use it as an intermediary
to impose their will upon the people.
Thus, corporate personhood is not just a kind of free radical
unleashed into an otherwise organized, healthy system. It is something
that actively destroys that healthy system. In other words, corporate
personhood corrupts and destroys democratic government.
Commercial speech versus free speech: the false distinction
The argument between Nike and Kasky boils down to whether Nike was engaging
in commercial speech or constitutionally protected free speech
(implying corporate personhood) when it responded to attacks with misrepresentations
about its business practices. The Supreme Court, therefore, will decide
only whether Nikes responses (including a production pamphlet,
postings on Nikes web site, a press release, a letter to the editor
of the New York Times, and several other documents) are commercial
speech or free speech. If Nikes representations
are considered commercial speech, Nike will be subject to Californias
false advertising law.
If the Supreme Court decides Nike has a right to free speech, like a
human being, Nike will not be subject to that law. Since it appears
that Kasky can show that Nike lied in its statements to the public,
the question then remains whether Nike has a constitutionally protected
right to lie.
The Northern California American Civil Liberties Union has filed an
amicus brief in support of Nikes right to free speech. Although
the NLG and ACLU share many views respecting civil rights, this is one
area on which the two differ.
The ACLU believes that Nikes speech should be protected like a
persons. The Northern California ACLU states that the purpose
of our brief was to assure that the question of the truthfulness of
Nikes assertions was judged by the same set of rules that would
apply were someone to question the truthfulness of the assertions of
its critics. The ACLU believes that the statements from Nike are
not comparable to ordinary advertisements that would fall under
commercial speech regulations.
Indeed, according to Linda Greenhouse, Kasky himself conceded
that if Nikes statements were deemed not to be commercial speech,
the First Amendment would require dismissal of his lawsuit.
The NLG believes that this distinction is false and evades the underlying
question of corporate personhood. The NLG agrees with the statement
of Professor Robert C. Post of the University of California at Berkeley
quoted in Greenhouses article that [s]tate control of corporate
speech is fully at the heart of [this case].
However, as long as the notion of corporate personhood is not clearly
raised and finally discredited, the question of state control is not
likely to be fairly addressed and the Courts decision will fall
short of a democratic solution.
Source: TruthOut.org
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