Dear ACLU Board of Directors,
For more than 80 years the work done by the American Civil Liberties Union has been of immeasurable value in protecting and extending freedom and democracy. Perhaps its greatest contribution has been in its advocacy of First Amendment rights. Few people realize the crucial role ACLU has had in the establishment of the free speech protections that many Americans mistakenly believe has been theirs since the founding of the nation.
Given the ACLU's historic role, it is ironic that its current position of advocating "free speech rights " for corporations is undermining democracy rather than strengthening it. We are writing to you, the leaders of the ACLU, in the hope that you will rethink your general support of corporate free speech, as evidenced by the ACLU of Northern California's recent amicus brief in Kasky v. Nike. Though we know the state chapters may take positions without the approval of headquarters, their position seems consistent with overall ACLU position.
We believe that the citizens of this country will never be able to realize the promise of democracy unless they are able to assert their right to control the activities of the enormous, unaccountable institutions we know as corporations. They have no voice but they have become instruments by which the powerful few drown out the voices of those less powerful than themselves.
We fear that the ACLU may forget that it was founded to ensure that our social and political institutions serve the interests of living human beings rather than the other way around. The Northern California ACLU's amicus brief in Kasky cites a Supreme Court precedent: "The First Amendment presupposes that the freedom to speak one's mind is not only an aspect of individual liberty - and thus a good unto itself - but also is essential to the common quest for truth and the vitality of society as a whole."
Just whose "mind " is the ACLU referring to in the case of a corporation such as Nike? Given the counter-Constitutional history of corporate personification, it is easy to forget that the commercial corporation has no voice and has but one purpose--to maximize profits. By necessity all corporate communication is commercial. Corporate executives are under a legal obligation to adhere to that purpose regardless of their personal inclinations to act for the greater good
At one time the implacable demand for profit was blunted somewhat in certain industries, such as the news media, by traditions of public responsibility. But today the media conglomerates are dissolving the barriers between the strictly profit-making aspects of media companies and their reporting and editorial functions. If the ACLU wishes to defend the free press, it will have to engage in a campaign of restoration rather than simply one of protection.
The ACLU claims that by supporting corporate "free speech " it is merely acting in support of democratic principles: "If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. " The Supreme Court used similar language in 1978 (First National Bank of Boston v. Bellotti) to declare broadly construed corporate speech rights. But even then the Court noted that "corporations are wealthy and powerful and their views may drown out other points of view " and that if it could be established "that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration. " Can any reasonable person deny that runaway corporate power now is undermining democracy?
As justices White, Brennan and Marshall pointed out in their dissent to Bellotti, the threat to First Amendment interests was already quite clear: "the special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only the economy but also the very heart of our democracy, the electoral process. " They recognized that restricting corporate communication was necessary because "The State need not permit its own creation to consume it. "
Perhaps corporate power over the democratic process was not so obvious to some observers 25 years ago, but today it is unmistakable. By 1990 even the majority of the Supreme Court conceded, in Austin v. Michigan Chamber of Commerce, "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. " Today corporations have their lawyers in Congressional committee rooms drafting legislation.
The problem goes much deeper than political corruption. In asserting corporate "rights, " the ACLU is not really shielding private parties from government repression. The large corporation is itself a governing institution. As John Kenneth Gailbraith pointed out some 30 years ago, the tradition of private enterprise serves " to disguise the essentially public character of the great corporation, including its private exercise of what is in fact a public power. "
Corporate power includes ever-increasing control over the very means of communication that is essential for democracy. The early leaders of the ACLU were well aware of the critical role of the media in a democratic society. In the 1930s Morris Ernst, Roger Baldwin, and Norman Thomas worried that corporate control over broadcasting would significantly limit the coverage of public affairs and prevent the dissemination of pro-labor ideas. That was at time when there were hundreds of independent newspapers. Today a few communication conglomerates control not only broadcasting, newspapers, and national magazines, but also the book publishing industry as well.
If we allow a limited number of corporations to control the bulk of public communication, the forum for political debate will be one in which the publishers and those who can afford to advertise can choose to amplify ideas they find amenable (and then shepherd them into law via the conversion of money into political power). But when it comes to ideas threatening corporate power, corporations simply will (and already do) exercise their First Amendment "right " not to speak.
We already are experiencing the effects of a court-created right to effectively censor democratic debate. Corporate executives are making decisions of immense consequence outside of the democratic control on which our nation is based. For example, the decision to release genetically modified organisms into our food supply and into the environment in general is an irreversible action that, according to the views of many leading scientists, may have enormous implications for the very basis of life on this planet. Yet this action was taken by putatively "private " corporations without citizen consent, despite the objections of scientists who conducted the only public scientific evaluation of the safety of genetically modified foods (a fact unknown to most citizens due to lack of information in the corporate media).
The ACLU has claimed that denying speech "rights " to business corporations would also threaten the rights of the ACLU, other public interest groups and media entities. Yet the Supreme Court has been able to distinguish between general business corporations, non-profit advocacy groups and media companies. The Court stated explicitly in its Austin decision and in FEC v. Massachusetts Citizens for Life, Inc that it can do so, indeed it has declared such distinctions necessary to the basic functioning of democracy. In FEC v. MCFL the Court laid out the reason for protecting the speech of advocacy groups above that of business entities: "MCFL was formed to disseminate political ideas, not to amass capital. "
Unfortunately, the Court has not seen fit to follow through with its reasoning and reverse its decision in Bellotti. To be consistent with its founding purpose of ensuring individual rights and liberties, the ACLU should be working very hard to secure such a reversal rather than helping corporations encroach still further on the democratic process.
If we allow the corporation to dominate our politics, the results will be disastrous for both the natural world and the human spirit. We hope that you will act in accordance with the purposes for which the ACLU was founded and reverse your current position of arguing that the Bill of Rights should apply to artificial entities.
Sincerely,
VOICE OF THE AUSTIN MAJORITY

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posted by Joshua P. Angell  @ 11.11.04

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