Sunday, July 06, 2014

Corporate Personhood - a Historical and Necessary Legal Concept

If you support the right to advertise contraception, even if it ‘offends’ some people; if you believe that newspapers need to be able to report on corruption in government; and if you think that big banks need to be prosecuted when they conspire to manipulate currency and commodity prices – then thank the concept of Corporate Personhood.

In the wake of the Citizens United and Hobby Lobby decisions, many people are just coming to see that corporations are often treated as ‘persons’ under the law, and are upset about it;  many believe it’s an invention of a runaway, pro-corporate court.

But nothing could be further from the truth.  The concept of Corporate Personhood – and of corporate rights under the Constitution – is as old as our Republic itself.  Having grown weary of trying to argue this point over and over in limited space on Facebook, I decided to put my thoughts into one longer blog post, and stroll through some of the critically important background relating to corporate personhood.

1. Freedom of the Press – Surely the founding fathers understood, when they penned that “Congress shall make no law…abridging the freedom..of the press” (First Amendment) that they meant newspapers and corporate media, and not just individual reporters. Indeed, two of the most important decisions in this century protecting a free press protected a corporate entity: The New York Times.

In 1964, the New York Times claimed that the arrest of Rev. Martin Luther King, Jr. for perjury in Montgomery, Ala., was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. In response, Montgomery city commissioner L.B. Sullivan filed a libel action against the newspaper as a corporation.  The Court ruled, in New York Times Co. v. Sullivan, that even though some of the newspaper’s statements were in fact false, that the corporation was protected by the First Amendment.  

Seven years later, a second blockbuster case arose involving the NY Times: New York Times Co. vs. United States.

In 1971, as the nation heatedly debated its involvement in the Vietnam War, the Times obtained a copy of an internal Defense Department report detailing government discussions about the war. These confidential documents would become famously known as the Pentagon Papers. At the U.S. government's request, the district court issued a temporary injunction ordering the New York Times not to publish the documents, claiming that the publication of the documents would endanger national security. The Times appealed, arguing that prior restraint (preventing publication) violated the First Amendment. Once again, the Supreme Court ruled (6-3) in favor of the Times. 

Yes, the Corporation had rights under the Constitution, even as against government arguments of national security.

2. Freedom of Speech:  Congress shall make no law…abridging the freedom of speech.”

In the 1970s, New York State enacted a law prohibiting anyone other than a licensed pharmacist from distributing nonprescription contraceptives to persons 16 years of age or over, prohibiting the distribution of nonprescription contraceptives by any adult to minors under 16 years of age, and prohibiting anyone, including licensed pharmacists, from advertising or displaying contraceptives.

Population Services International was a North Carolina corporation that distributed birth control knowledge and services. The corporation sold and advertised contraceptives to New Yorkers  primarily through mail-order retail sale of nonmedical contraceptive devices, which was a violation of the New York law. 

In Carey v. Population Services International, 431 U.S. 678 (1977), the Supreme Court held that the law was unconstitutional: 

“The prohibition of any advertisement or display of any contraceptives that seeks to suppress completely any information about the availability and price of contraceptives cannot be justified on the ground that advertisements of contraceptive products would offend and embarrass those exposed to them and that permitting them would legitimize sexual activity of young people. These are not justifications validating suppression of expression, which are protected by Amendment I. The advertisements in question simply state the availability of products that are not only entirely legal, but also constitutionally protected."

The case is critical because it ruled that a corporation, Population Services International, had free speech rights. Without corporate personhood, New York State could have legally squashed advertising for contraception.

3. The Fourth Amendment to the United States Constitution provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

For almost 100 years, this right of  “the people” has been extended to corporations.

In 1924, the US Federal Trade Commission – acting on its own - demanded internal documents and private communications from the American Tobacco Co., and denied that any warrant or cause was needed.  In FTC v. American Tobacco Co. - 264 U.S. 298 (1924), the Court held,

A governmental fishing expedition into the papers of a private corporation, on the possibility that they may disclose evidence of crime, is so contrary to first principles of justice, if not defiant of the Fourth Amendment, that an intention to grant [that] power to a[n]agency will not be attributed to Congress unless expressed in most explicit language…We cannot attribute to Congress an intent to defy the Fourth Amendment, or even to come so near to doing so as to raise a serious question of constitutional law.”

And so yes, your desk and office and items in your workplace are subject to the same protections that you have elsewhere…because 4th amendment rights have been bestowed on businesses as well.

5. Double Jeopardy – most of us growing up watching police dramas know that you can not be tried for the same crime twice once you are acquitted.  It is the 5th Amendment that offers us that protection:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .

Note that the wording is very specific: no person.

And yet, this too has always been seen as applying to corporations. 

In 1977, the Martin Linen Supply Company was brought up on charges for collusion, and after a trial by jury, acquitted.  The US Government sought to bring the same charges again, and in a unanimous decision, the Supreme Court held that the right against double jeopardy clearly applied to the company, and the suit was tossed. (United States v. Martin Linen Supply Co, 430 U.S. 564 (1977).

6. Due Process and Equal Protection – Two places in the Constitution address these rights.

The 5th Amendment provides:
[N] or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . , and
Section One of the 14th Amendment provides:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .

In general, these two clauses require that laws be transparent and equitably enforced by both the federal government and state governments. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process; all have a right to a fair and public trial conducted in a competent manner, the right to be present at the trial, and the right to an impartial jury; Taxes may only be taken for public purposes, property may be taken by the government only for public purposes, and owners of taken property must be fairly compensated .

The 14th Amendment was adopted after the Civil War, and even though it clearly states ‘person,’ the same generation that adopted the amendment understood it to apply to  corporations. In  Santa Clara County v. Southern Pacific Railroad – 118 U.S. 394 (1886), Chief Justice Morrison Waite began oral arguments on a case by stating, 

"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."  

7. The view that corporations are ‘persons’ within the meaning of the law is not just limited to Constitutional Law, but to statutory Law as well, for well over a century.  The Sherman Anti-Trust Act of 1890  - which is still alive and valid today – was the first federal law to go after monopolization and corporate collusion. And yet, read this critical section:
Section 2: 

"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felon.”

“Person.”  And for 124 years, we have understood that “person” also refers to corporations. 

In fact, just two weeks ago, it was reported that JPMorgan Chase & Co., Goldman Sachs Group Inc. and the London Metal Exchange Ltd. were hit with a class action in New York federal court alleging they schemed to manipulate zinc prices by hoarding it in LME warehouses in order to artificially spike its price.

The suit against the corporations was brought under section 2 of the Sherman Anti-Trust Act, which addresses “persons.”

8. Finally – and perhaps conclusively – is the Dictionary Act of 1947 (Ch 388, 61 Stat. 633; commonly referred to 1 US Code Section 1.

It defines terms for US laws this way:

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

words importing the singular include and apply to several persons, parties, or things;

words importing the plural include the singular;

words importing the masculine gender include the feminine as well;

words used in the present tense include the future as well as the present;

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals

The notion of Corporate Personhood has been supported by almost every provision of American Constitutional Law and legal jurisprudence, and has been since our founding.  You may not like some of the decisions that rely on that concept, but, over the course of American history, the concept has carried out what the Constitution was designed to do:  enhance the rights of private entities, of whatever make-up, and restrict the power of government.


Monday, June 16, 2014

100 Years of Western Meddling in the Middle East (Or, Is the Friend of the Enemy of my Enemy's Friends an Enemy - Always?)

 In the timeline below, I'm not even including Afghanistan, long a proxy war between the US and Russia ... nor am I including the usual focus on Israel and Palestine. This is just an overview - a brief timeline - of the chaos that has been caused in a large part by the US, Britain, and France in the nations of Iran, Iraq, and Syria over the last 100 years. Follow along....if you can.....

1911:  WWI: Russia and Britain occupy Iran.  Britain stays10 years.
1916:  Britain and France develop the Sykes-Picot Agreement, a secret Plan to divide the entire middle east outside of the Arabian peninsula.

1920: Britain receives Palestine, Jordan, and what is now Iraq, and installs Sunni elites into power. France occupies what is today Syria and Lebanon. France transfers some Lebanese territory to Syria, and continues occupation of both until 1946.

1921:  Britain withdraws from Iran, and Reza Khan becomes Shah of Iran.

1941: WWII begins. Iraqis overthrow puppet British government in Iraq. Britain and Russia occupy Iran and Iraq to guarantee oil supplies for the Allied effort. Shah Reza Khan is deposed by the superpowers; his son Reza Pahlavi is installed as new Shah of Iran in return for western access to oil. Britain stays in Iraq until 1948.

1943: Lebanon gains independence from France; Britain occupies both Lebanon and Syria to avoid alliances with Germany.

1948: State of Israel established. Syria, Egypt, Lebanon and Syria declare war on Israel. Syria undergoes years of internal revolts following their defeat, many based on ethnic and religious rivalries.

1951: Iranians elect Mosaddegh as Prime Minister.

1953: Mosaddegh nationalizes oil fields, and is subsequently overthrown in US-UK led coup d’etat. The Shah assumes complete control and crushes opposition with torture and secret police with US-UK support.

1958: Iraqis revolt against British-installed Monarchy and Saddam Hussein's Ba'athist party assumes control.

1966: Ba’athist Party also takes control in Syria, but the group is divided between pro and anti Iraq factions.

1970:  The Anti-Iraq wing of the Ba’athist Party, supported by the military, overthrows the Syrian government and installs anti-Iraq Ba’athist Hafez el-Assad as leader.

1975: Civil War breaks out in Lebanon.

1976: Syria begins a 30 year occupation and effective control of Lebanon.

1978: Iranians revolt against the Shah; The Iranian Revolution installs Ayatollah Khomeini in a  theocratic state.

1979: US refuses to return the Shah to Iran to face trial; students take Americans Embassy hostage for 444 days.

1980: Iraqi leader Saddam Hussein invades Iran, receiving financial, military, and chemical weapons from the US.

1988: Hussein’s Iraq launches chemical genocide against Kurdish minority in northern Iraq.

1990: Iraq annexes Kuwait.  US, France, UK, and Syria enter the Gulf War against Hussein; Kurds rebel in the north.

1998: US President Clinton signs Iraq Liberation Act, calling for “regime change” in Iraq.

2000: Syria’s Hafez el-Assad dies; his son Bashar al-Azzad takes control.

2001: Al Qaeda attacks the United States.  US State Department meets with Iran secretly in Switzerland to obtain cooperation on the overthrow of the Taliban in Afghanistan and al qaeda throughout the region.

2002: President Bush refers to Iran as being part of the “Axis of Evil” and US-Iran relations deteriorate quickly.

2003: US-led coalition enters Iraq and overthrows Hussein. Shi’ite led coalition government installed, with a semi-autonomous Kurdish region in the north.

2005: A series of assassinations of Lebanese officials is blamed on Syria’s Assad; protests and pressure from the west result in Syria’s withdrawal from Lebanon.

2008: Lebanon’s new Cabinet establishes Hezbollah, a Shi’ite paramilitary organization, with legal status. Hezbollah is committed to driving the Americans, French, and British out of the Levant, is funded by Iran, and allied with Syria’s Assad in the Syrian Civil War.

2011: US Troops leave Iraq, and Sunni-Shi’ite struggles accelerate. The “Arab Spring” spreads to Syria and full-scale civil war ensues, resulting in over 100,000 deaths and 2 million refugees.  Anti-Assad forces include Kurds and ISIS (“Islamic State of Iraq and the Levant”) allies in the northeast of Syria.

2014: The Sunni-dominated ISIS military assume effective control over eastern Syria, and begin successful invasion of Western Iraq. 

News outlets and US Government Hawks reduce the march of ISIS to that of "al qaeda linked militants" - a simpleton's version.


Saturday, May 31, 2014

Honeybees and a Tale of Two Companies: Mann Lake vs. Monsanto

 Honey bees, crucial in the pollination of many U.S. food crops, continue to die off at an alarming rate.  Total losses of managed honey bee colonies was 23.2 percent nationwide for the 2013-2014 winter, according to the annual report issued by the U.S. Department of Agriculture (USDA) and the "Bee Informed Partnership," a group of honeybee industry participants.

The death rate for the most recent winter, October 2013 through April 2014, follows a 30.5 percent loss reported for the winter of 2012-2013, and a 21.9 percent loss in 2011-2012.  At this rate, bee populations have been dying at a rate the U.S. government says is economically unsustainable. Honey bees pollinate plants that produce about a quarter of the food consumed by Americans, including apples, almonds, watermelons and beans, according to government reports.
Scientists, consumer groups and bee keepers say the devastating rate of bee deaths is due at least in part to the growing use of pesticides sold by agrichemical companies to boost yields of staple crops such as corn.  On May 9 the Harvard School of Public Health released a study that found that two widely used neonicotinoids — a class of insecticide — appear to have significantly harmed honey bee colonies over their winter dormant period. 

"With the damning evidence mounting, pesticide companies can no longer spin their way out of this crisis," said Michele Simon, a public health lawyer who specializes in food issues. 

The guilty parties? Monsanto Co (whose executives have close ties with both the Obama Administration and with Bill and Hillary Clinton) and DuPont,  both of whom are responsible for producing the majority of the defoliant Agent Orange which affected generations of Americans during the post-Vietnam war years.   

Last year, organic farmers were outraged to discover that the Illinois Department of Agriculture had actually seized and destroyed healthy bee colonies belonging to a scientist who spent 15 years developing a strain that was resistant to the toxic effect of Monsanto’s chemical Roundup.

Meanwhile, the entire European Union has enacted an outright ban on the use of neonicotinoids on crops, home lawns, and gardens

But in the small town of Hackensack, Minnesota, a small company named Mann Lake Limited   stands as David against Goliath.

The company was started by Betty and Jack Thomas, who were hobby beekeepers 30 years ago. But as bees and supplies grew scarce, they took matters into their own hands.  

“Let’s start a little bee keeping supply business as a cottage industry out at the lake,” Jack said.

It wasn’t long before business boomed. They now employ 350 people, making their business larger than the town in which they are located. Those 350 employees make everything from the hives to the food bees eat in the off season. They supply beekeepers large and small, from Minnesota to the Middle East, and have recently opened a new facility in Wilkes-Barre, Pennsylvania.

“When you are a hobby beekeeper you start out with the equipment which we make,” Jack said. “Now you need bees to put in that equipment.”  And so, millions of bees arrive at Mann Lake Limited in early May, after a 30-hour nonstop run from California, where the new bees are bred. They come in 2,000 wooden crates, stacked onto pallets.  Each box holds a queen, and 15,000 worker bees.

Nationwide, the problems that both commercial and hobby beekeepers have is keeping their bees alive and away from the pesticides that appear to be annihilating them. 

“Always in the back of the mind is: What else can we do?” Jack said. “Where can we expand? What new products can we come up with?”

It’s all to give bees a fighting chance. 

Betty and Jack, like some other socially responsible businesses such as Juan Valdez Coffee and New Belgium Brewing,  have since turned their business over to their employees through an employee stock ownership plan.  In essence, their business’ “worker bees” are also now the owners “the colony,” and all share a vision to prevent a catastrophic collapse of the nation’s food supply.

One can only hope that as in the biblical story, David defeats the mighty Goliath.


Monday, May 19, 2014

NBA: Legal Route is to Toss Clippers as an NBA Team

From the just-released Summary of Termination Charges (last paragraph says it all):


Friday, April 18, 2014

Fed Logic: Let Stranded Marine Mammals Die (Because you might hurt them if you help them)

It is a tale of twisted logic that only a government bureaucracy could create.

Each year, particularly in the spring, marine mammals find themselves stranded on sand bars and beaches along America’s coasts. Seals, dolphins, small whales and other critters somehow make a wrong turn and find themselves beached and unable to return to the water. Many of these strandings occur on shifting tidal sand bars and barrier beaches, particularly in places like Cape Cod, Martha’s Vineyard, Nantucket, the north shore of Massachusetts, and Fire Island and Montauk in New York. Without human assistance, many die.

At the same time, in order to protect sea mammals from harassment, the federal government prohibits anyone from coming within 150 feet of a sea mammal, unless they are part of a recognized rescue partner organization. Trained, certified volunteer responders may not operate without an oversight organization over them on location; this is a provision of the 1992 Marine Protection Act, which set up the “Marine Mammal Health and Stranding Response Program,” administered by NOAA.

On Wednesday, NOAA admitted one flaw in this arrangement: there is only one such "certified" partner organization in the region qualified to respond to mammal strandings: the International Fund for Animal Welfare, and they only respond to calls on Cape Cod.

It has no such partner organizations anywhere else in New England. A panicked request to the Towns of New England was issued by NOAA this week to try and find some partners.

So, under Government logic:

If an animal is stranded, you may not help.

Only NOAA-certified volunteers working under a parent organization can assist the distressed animal.

There are no such organizations in most of the northeast.

So, if a whale or seal is stranded, it must be left to die. Because, like, if you just go and assist it, you might hurt it.


This is a prime example of what I call “The Cult of License,” or the tendency for Americans (or at least their government) to believe that regular people can’t do anything without Government Certification.

In a national disaster, you’re not supposed to help a neighbor, but just listen to government orders (helping your neighbor evacuate is called “Self-dispatching” in FEMA terminology.) You’re not supposed to braid your neighbor’s daughter’s hair without a cosmetology license. You’re not supposed to home educate your children without a teaching license. You’re not supposed to sell homemade cupcakes without a commercial kitchen license. On and on and on…

Last year, on Fire Island, I came across a newborn fawn separated from its mother by a cyclone fence. And yes, I worked to reunite the two, and came within inches of the fawn to direct its steps home.

And, I got news fer ya… if I see a stranded mammal, as a human being, I will help it.

So arrest me already.