Fifty million American households’ desire for telemarketers not to call during dinner was put on hold today because a federal judge ruled that corporations’ free speech rights trumps the individual’s right to privacy and the government’s power to protect it.
Consumer advocate and author Jamie Court called on Congress to propose a constitutional amendment that clarifies that corporations do not have First Amendment or other Bill of Rights protections. Court said that at the very least Congress can offer a resolution that clearly states that commercial speech is subservient to the government’s right to protect against invasions of privacy.
“The First Amendment was created to protect individual’s from oppression by the government, not to rescue telemarketers,” said Court, author of Corporateering: How Corporate Power Steals Your Personal Freedom And What You Can Do About It (Tarcher/Putnam). “Corporations only gained first amendments in the courts during the last two decades. This must be reversed if large corporations are to be servants of society, not masters.”
Court notes in Corporateering that in 1976 the U.S. Supreme Court ruled in two separate cases that corporations have a First Amendment right to speak through unlimited contributions to political parties (Buckley v. Valeo) and that commercial speech is protected under the First Amendment (Virginia Pharmacy Board vs. Virginia Consumer Council).
“Until America’s bicentennial, corporations had no free speech right,” said Court. “After 1976, modern corporations gained title to the first ten amendments of the constitution, the Bill for Rights. This must be reversed.”
Most troubling for the federal “do not call” list are Supreme Court rulings establishing that corporations’ commercial speech does not require the consent of the listener. These include 1980’s Central Hudson Gas & Electric Corp. v. Public Service Commission of New York and 1983’s Bolger v. Youngs Drug Product Corp. — which are used to justify junk faxing and door-to-door solicitations.
“The legal rulings advancing corporations’ constitutional rights during the last two decades were no accident, but a conscious strategy by big business to create historically unprecedented cultural privileges for large corporations,” Court noted.
Corporateering documents how the strategy was hatched in a “confidential memo” sent to the leadership of the US Chamber of Commerce in 1971 by a corporate lawyer named Lewis F. Powell, Jr. At the time, Powell represented corporate titans like Phillip Morris, but later in 1971 President Nixon appointed him to the U.S. Supreme Court, where he authored many of the rulings giving corporations Bill of Rights protections.
The memo sent by Powell sounded an alarm with its title: “Attack on the American Free Enterprise System.” It called on the Chamber to reverse corporate losses during the 1960s to consumer and environmental groups, as well as a muckraking media. This meant taking the offensive and promoting big business’s agenda aggressively on campuses, with the media, through scholarly journals, in politics and through “neglected opportunities in the courts.”
Powell advocated that the Chamber seek influence over the judiciary because, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” The Chamber took Powell’s advice on all fronts and his prophecy, with his own help, came true in the courts.
“The impact of the legal redefinition of the corporate form made it a sovereign entity with the power to dominate people and, increasingly, the public institutions that collectively represent individuals,” said Court, executive director of the Santa Monica-based Foundation for Taxpayer and Consumer Rights. “The time has come for Congress to say enough is enough.”
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