Bill's Board
Thursday, June 12, 2003

The Chester County Daily Local (PA) published a report that a council member called the Council President and Mayor “liars”, “criminals”. “draft dodgers” and “child molesters”. When a libel suit was instituted against the council member that made the charges and the newspaper that printed it, the jury awarded damages to the Council President and the Mayor to be paid by the Council member that made the charges but held the newspaper harmless on the basis of the court’s instruction to consider that there was a “neutral report privilege” which allowed the paper to report what was “said” without contravening it with any accurate information.

The judgment that held the newspaper harmless was overturned on appeal with the appellate court stating, “If the newsworthy quality of the utterance is its very outrageousness, allowing the media to make this judgment can be justified only if the public is also given sufficient information to determine that the source is irresponsible.”

The newspaper appealed to the Pennsylvania Supreme Court arguing, “If you can’t tell the public what public officials are saying you are robbing the public of the essential benefit of the First Amendment”.

The New York Times, that has this “neutral report privilege” in New York State Law, argued in a supporting Amici brief that the appellate ruling, “…encourages journalists to act as censors and withhold from the public any such information that they cannot warrant to be accurate” and that the Pennsylvania Supreme Court should establish the “neutral report privilege” in its decision.

In other words, the newspapers argue that they have a “neutral reporting privilege” which permits them to print any lies, distortions, misrepresentations, prefabrications, accusations, etc., of public officials, prosecutors, legislators, and various and sundry public figures including those lies, etc. included in other official documents without any more than a “how you do” to check their validity and/or veracity.

Or, the short of it is, the newspapers (and other media) maintain that they are entitled by a “privilege” to lie, etc., by proxy – that is, by printing the lies, etc. of others without verification and/or qualification.

Yet, that is not the whole of it.

In a case in California, Marc Kasky initiated a suit as a consequence of Nike’s (an Oregon based Co. with a 9.5 billion dollar income in 2001) public relations campaign to discredit widespread reports of its unfair and even dangerous labor practices in some 700 factories with some 550,000 employees that manufacture its products in about 50 countries.

Various reports including the reports from Vietnam Labor Watch, the Hong Kong Christian Industrial Committee, a New York Times eight part series and a special CBS report that juxtaposed a Vietnamese worker’s complaints with disclaimers by company officials. The reports documented violations of local regulations, 11 to 12 hour work days, compulsory overtime, the violation of minimum wage laws, exposure to dangerous levels of toxic fumes and atmospheric pollution (in some plants 77% of the workers suffered respiratory problems), employment of workers under the age of sixteen, sexual harassment, and corporal punishment.

In response to these reports, Nike entered into a multi-million dollar public relations campaign to deny the reported violations and in defense of their labor practices by sending letters to the presidents and athletic directors of colleges, letters to editors in the media, letters to the CEO’s of non-profit organizations as well as issuing press releases and placing ads in a variety of media.

Marc Kasky’s suit charged that Nike’s multi-million dollar public relations campaign constituted commercial fraud under California’s Commercial Code since Nike, in it’s campaign, lied about the actual working conditions of its employees and the working conditions of the employees of its sub-contractors in order to make it’s products more attractive to potential purchasers.

Without addressing the issue of the validity, or truthfulness of its defenses, Nike’s response was that “its campaign was part of a public debate over globalization and problems in emerging countries, the kind of political and philosophical dialogue that is entitled to undiluted First Amendment freedom.”

Or, the short of it is, Nike seeks the shield of the First Amendment to protect it from the adverse commercial consequences that can result from lies that it may propagate about the labor practices and working conditions at its factories in the manufacture of the products it sells.

The California Supreme Court denied Nike’s assertion of First Amendment protection stating “When a corporation, to maintain and increase sales and profits, makes public statements defending labor practices and working conditions at factories where its products are made, those public statements are commercial speech that may be regulated to prevent consumer fraud.”

Having transformed the matter of the validity, the truthfulness or untruthfulness of its campaign statements into the assertion that it was merely part of a debate about the effects of globalization; i.e. from a Commercial Code matter into a First Amendment Constitutional matter, Nike appealed to the United States Supreme Court by making the claim that “handicapping one side of this debate is both ill-considered and unconstitutional.”

So there we have it—corporations claim that they can lie about the conditions under which their products are produced and other matters relating to their products (remember tobacco’s lies) under the protection of the First Amendment and the media claims that if it participates in perpetuating a lie, distortion, misrepresentation, fabrication, unfounded accusation, by simply repeating them without qualification, they have the protection of a “neutral reporting privilege” ---- in short, protected corporate lies perpetuated by the protected repetition of the lies by corporate media.

When we look at the line up of those that have submitted Amici briefs in support of both Nike’s (i.e. the corporations’) position and the corporate media’s (corporations as the ‘the press’) position, we find the Bush administration’s Justice Department at the front in support of Nike; the New York Times Company, along with 40 corporate media organizations, filed a brief supporting Nike; the Product Liability Council, an organization of 130 major business and manufacturing corporations, filed a brief supporting Nike; the Business Roundtable (made up of 150 chief executives of major corporations) filed a brief supporting Nike; and, the ACLU, champion of money as First Amendment speech, filed a brief supporting Nike.

In support of Kasky’s suit and in opposition to Nike are Amici briefs filed by California and seventeen other states including New York and Connecticut; Global Exchange, a human rights organization; the Sierra Club; Domini Social Investments, which advises funds and individuals on ‘socially responsible investment’; and Public Citizen, a group associated with Ralph Nader.

At the heart of the issue is that there are persons making the contention that corporations are “persons” within the meaning of the Constitution and, therefore, entitled to the various protections afforded to persons by the Constitution. Yet, corporations are the creations of the various State laws, essentially paper dolls, legal fetishes fashioned by persons to facilitate commerce. Attaching the rights of persons to these legal fetishes is not only hilariously ludicrous, but also smacks of the kind of work worthy of witch doctors.

Persons that want to engage in the debates concerning such matters as globalization, health insurance, wage rate laws, safety regulations, etc., including those persons that are the multi-million dollar chief executives of corporations, have every right, under the protection of the First Amendment to the Constitution, to say, to write, to publish, or to send letters to college presidents, or to the athletic directors of educational institutions, or to charitable organizations, or to the editors of the various media, whenever and however they feel the urge or the necessity ---- just so long as they do not speak as persons on behalf of the corporation they work for, since, when they do so, their speech is part of the commerce facilitated by the corporate grant provided by the States.

Spokespersons for corporations lobby the elected and appointed officials without end. The voices and opinions of these spokespersons are widely disseminated. Such matters as the genetic alteration of grains that are marketed for human and livestock consumption, the use of hormones in the feeding of livestock that are used to provide meat and milk for human consumption, the use of fertilizers in the growing of food for human consumption, etc. are all matters that are part of a global debate but which also go to the heart of the commercial marketability of the products just as the cancerous effects of smoking affects the marketability of tobacco.

The spokespersons for the corporations that lie about the effects of the consumption of these products are committing a commercial fraud to enhance the marketability of these products. The personal opinion of a corporate executive, on the other hand, spoken or written or televised, not as a spokesperson for a corporation, is as much protected First Amendment speech as is the humble opinions of this writer. The difference between the opinion of a spokesperson for a corporation (since no matter how much the witch doctors would have it, a corporation can not speak) and the opinion of a person speaking on their own behalf is about as distinct a difference as black and white.

No waving of the magic wand of legalese can blur the distinction or transform the legal fetish of the corporation into a person.

William C. Carlotti
June 12, 2003


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