Nike vs. Kasky: Corporations Are Not Persons
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 Nike's
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
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 U.S.
Constitution. Incorporation is a privilege granted by the people's
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 U.S. 394.)
In a later 1889 case, Minneapolis & St. Louis Railway Company (129 U.S.
26), Justice Field cited Santa Clara as holding that corporations are
persons, and that inaccurate notion of Santa Clara's 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? Isn't 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.
In her book, The Divine Right of Capital, Marjorie Kelly asks: "Why have
the rich gotten richer while employee income has stagnated? Because that's
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 Kelly's 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 world's
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 U.S. 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 Nike's responses (including a production
pamphlet, postings on Nike's 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 Nike's representations are considered
commercial speech, Nike will be subject to California's false advertising
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 Nike's 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 Nike's 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 Nike's 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
Nike's 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. It is this question that the Supreme Court
should be answering. The NLG agrees with the statement of Professor Robert
C. Post of the University of California at Berkeley quoted in Greenhouse's
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 Court's decision will fall short of a