Moon Pie wrote:
] Now, Nike is arguing that, as a legal person, they should
] enjoy the same "free speech" right to deceive that individual
] human citizens have in their personal lives, in this case, to
] fraudulently claim that Nike no longer uses slave labor to
] manufacture its shoes.

For the record, and I imagine I'll piss a lot of people on this site off by saying this, but I have serious problems with the train of analysis offered in this posting. And its arguements are typical of those made by the radical left in this context.

1. Corporations do not "speak with a billion dollar bullhorn." In general corporations *NOT* rich. Nike is not a typical example of a corporation. The church in your neighborhood is. So is every magazine or newspaper you've ever read (including the left wing ones). So is almost every political organization you've ever heard of, including the left wing ones. Big fortune 500s like Nike are in the minority by a very very large margin. In fact, most of the economic activity in the United States involves small businesses.

2. Your right to freedom of speech is an inalienable right. Even if you are rich. Thats what an inalienable right is. The CEO of Nike has just as much a right to freedom of speech as you do. Even if you don't like him. Even if you think he is evil. Thats what living in a free society is all about.

3. The government has the authority to control commercial speech. They do not have the authority to control political speech. Even by corporations. Even by rich people. If they could, then there would be no free press in this country. As I'm sure you know, almost every organization which might be thought of as "the press" in this country is a corporation, and many of them are quite rich.

4. Arguements that the left would somehow carve out an exception for media organizations are totally bunk. The whole concept of inalienable rights is that you are ASSUMED to have them unless there is an overriding interest in taking them away. In this case what you are talking about is taking them away and then maybe giving them back where you see fit. I leave an explanation of what the problem with that is as an exercise for the reader.

5. People cannot and should not loose their right to free speech simply because they have organized a group and wish to speak as a group. This is the actual reason why rights must apply to groups as well as individuals. If they didn't then you would have no ability to organize politically. In a democracy, you have to organize in order to impact elections. Every real political organization is a corporation. Every one.

6. Having said all of this, Nike is probably engaged in commercial speech. People make a decision about whether or not to do business with Nike based on whether their products are produced via a moral means. Misleading the public about this is false advertising. You don't need to destroy the free press in order to bust Nike for this.

Decius Writ:

6. Having said all of this, Nike is probably engaged in commercial speech. People make a decision about whether or not to do business with Nike based on whether their products are produced via a moral means. Misleading the public about this is false advertising. You don't need to destroy the free press in order to bust Nike for this.

MoonPie Replied:
Well yes, thank you, it is commercial speech. That's the whole point, not that the beleaguered rich don't have a right to free speech. Nike argues that they have a right to false advertising because they are a corporation-that-is-a-person with first amendment protection from false advertising suits. In other words, false advertising laws do not apply to them. If they do not apply to them, they do not apply to other corporations. That's exactly why corporations should not be treated as legal persons, only natural human beings should be. The corporation is a limited liability device to shield investors and owners from losses, and make money. A church is not a corporation, the cub scouts and PTA are not corporations; a corporation has a specific definition and purpose. The history of the corporation, which the article explores, makes it pretty clear what the thinking was about monied industrial concerns. Abe Lincoln felt they were a worse threat to our democracy than the Civil War. Nearly a hundred years later, President Eisenhower in a similar vein would warn the country of the growing danger to our democracy of the "military-industrial complex". They were right. Our civic culture has atrophied to the point that most people don't even bother to vote, let alone argue and debate about substantial matters. What difference does it make?

Separate from the "commercial speech is free speech" argument is the question of the right of the rich to effectively have more speech than anyone else. They DO have a right to their speech, and by buying ads on TV, radio, billboards and in magazines, they make themselves heard, by owning media corporations and directing what is news and what is not, by pulling advertising from media that do not report the way they like, they make themselves heard. You and me blog away and maybe two people read it. It's just a fact that the rich have more access and more power. Our society is organized around commerce and technology, and money is the key. If you don't have money, you don't have power. THAT's perfectly constitutional.

] Well yes, thank you, it is commercial speech. That's the
] whole point, not that the beleaguered rich don't have a right
] to free speech. Nike argues that they have a right to false
] advertising because they are a corporation-that-is-a-person
] with first amendment protection from false advertising suits.

No, thats not accurate. Nike claims that the speech in question is political in nature and therefore is not advertising. Not that "false advertising rules don't apply to them," but that this isn't advertising, and therefore false advertising rules don't apply in this context.

] If theyThat's exactly why corporations should not be
] treated as legal persons, only natural human beings should be.

This is a sheilded way of saying that corporations ought to have no legal rights... IE the police should be allow to shut down the press when they don't like what is being said... The FBI should be able to raid a church without a warrant.

] A church is
] not a corporation, the cub scouts and PTA are not
] corporations; a corporation has a specific definition and
] purpose.

Every church in the United States IS actually a corporation. The Cubs Scouts of America are most certainly a corporation. I'm not being stupid here. These people have actually filed Articles of Incorporation with a State in this country and they actually have a Tax ID number. They actually really really are corporations.

If, by PTA, you mean your local parent teacher association, it is unlikely that they would be incorporated, but it is possible. Obviously this is a case by case issue.

The Nashville Linux Users Group is a corporation. They filed because it allows people to make tax deductable donations that support their efforts. Do you think they should have free speech protections? How about search and seizure?

] The history of the corporation, which the article
] explores, makes it pretty clear what the thinking was about
] monied industrial concerns.

"Monied industrial concerns" is not a legal term. Corporation is. When you are talking about whether corporations have legal rights, and you are making arguements that are based in the law, then you are talking about corporations in the context of the law. Any legal entity in the United States which is not a government entity, an individual, or an estate is a corporation, which means that it has Articles of InCorporation filed with the State.

] It's just a fact that the rich have more access and more power.

This much is true, but it has nothing at all to do with whether corporations as they are legally defined do or do not have rights as they are legally defined.

Maybe this will clear up some confusion. Individuals have rights, as citizens. Corporations however, according to the U.S. Supreme Court:
A corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises and holds them subject to the laws of the state and the limitation of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and ascertain if it has exceeded its powers.
In Black's Law Dictionary we find a similar definition:
[A corporation is] an artificial person or legal entity created by or under the authority of the laws of a state. An association of persons created by statute as a legal entity.... The corporation is distinct from the individuals who comprise it (shareholders).... Such an entity subsists as a body politic under a special denomination, which is regarded in law as having a personality and existence distinct from that of its several members....
The laws dictating incorporation are very specific:
A corporation derives its existence and all of its powers from the State and, therefore, has only such powers as the State has conferred upon it. Power is used here to mean the legal capacity to execute and fulfill the objects and purposes for which the corporation was created, and the source of this power is the charter and the statute under which the corporation was organized.
Corporate existence is a privilege granted by the sovereign upon compliance with specified conditions.
Every corporation has obtained a charter from the State of Incorporation. This charter is simply permission to exist given to the corporation, without which, its operations would be considered illegal. In addition to the charter are the articles of incorporation:
The objects or purposes for which a corporation is formed are expressly stated in its articles of incorporation, which delineate in general language the type of business activities in which the corporation proposes to engage.

Phwew!

Nike’s gambit is to stretch out that ‘artificial person’ part to gain all the protections for corporations that natural persons have.
All the shareholders, all the natural persons *forming* the corporation ARE STILL PROTECTED under the Bill of Rights. Denial of the Bill of Rights to corporations is nothing new. That’s how it’s always been! They are not people! The secret police/homeland security are not going to bash down Nike’s boardroom door if they lose this case. The argument of ‘the Left’ is that corporations are plenty powerful as it is, please don’t take away all the controls that still, at least legally, exist, by calling a corporation a citizen.

I’ve just got to add, I didn’t say ‘monied industrial concerns’ was a legal term, I was paraphrasing Abe Lincoln.
And, churches, and the Linux fan club or whatever, are 501(c)(3) non-profit organizations, not taxable, for profit entities like Nike or AT&T. They’re great. I’d love to start my own tax-free religion someday. Want to help?