Court whacking of Seattle on phone books lets corporations run legally amok
Guest Opinion: Bizarre but true: Corporations are gaining oppressive power over the public through legal concepts used to free slaves from inhuman oppression. What can we do?
The responses to Seattle’s $781,503-losing lawsuit with phone-book publishers highlight misunderstanding of the issues of corporate influence and the predictability of concerned citizens and activists.
Some people don't blink at the idea of corporations having First Amendment rights. Others want to react emotionally, with boycotts or staged events for the media, sure that public outrage will coherce publishers to voluntarily reduce the distribution of unwanted phonebooks.
You can see both strains of thought in general comments around the city and in the comments of some online readers.
This settlement has national implications. Other cities have been watching Seattle's lawsuit before implementing their own regulations. San Francisco's phonebook law is already on hold. Since Seattle's program prevented 2 million pounds of annual waste, the 9th U.S. Circuit Court of Appeal's ruling to allow deliveries of unwanted phone books may affect over 100 million pounds of waste per year nationally.
Corporate Personhood is at issue because the core of the phonebook companies’ legal complaint stated that they have First, Fourth and Fourteenth Amendment Rights under the Constitution. In the suit, the phonebook companies assert corporate personhood and claim phonebooks are free speech and their right to equal protection under the Constitution has been violated.
Surprisingly, the legal concept of constitutional rights for corporations has its roots in the activist work of abolitionists who fought to end slavery. As Barry Yeoman wrote in "Mother Jones" magazine:
“[Corporations] were not considered 'persons' until after the Civil War, when business magnates began to avail themselves of the 14th Amendment's antidiscrimination protections.”
Since then, corporations have been suing and winning a variety of corporate constitutional rights. In other words, the anti-discrimination laws of the post civil war era are the legal foundation that corporations routinely use in court to overturn local regulations such as Seattle's phonebook law.
Commenter Antinous: "If the Constitution doesn't give you a 'right not to be bombarded with garbage' in exactly those words, you don't have one. -- Antonin Scalia"
The courts consider corporate constitutional rights "settled law" and show no concern that these fictions are rooted in amendments whose original purpose was to end the dark, damaging abuses of our nation's history including slavery and the three-fifths compromise.
The court's ruling focused almost entirely on whether the yellow pages constitute free or commercial speech rather than whether corporate phone-book publishers have the same Constitutional rights as individuals.
Some of the companies in this suit aren't even American, they're Canadian. One of the key litigants is the Yellow Pages Integrated Media Association, which represents Yellow Media Inc, a Canadian corporation. Even if you agree with the folly of corporate personhood, no lawyer would argue the basis by which foreign corporations can sue for United States constitutional rights.
Neither are these companies economic stalwarts or entrepreneurial visionaries that Seattle might want to support for economic growth. Canada halted trading in The Yellow Pages group in December as its value plummeted and the company had to be re-capitalized. Both DexOne and SuperMedia have been trading recently for less than $5 (and this includes the valuation of their Internet marketing businesses). The markets have written down the value of the yellow pages business model but the courts have not.
Even on its merits, the narrow-mindedness of the Court of Appeals' ruling is confounding:
Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows and similar media ... A profit motive and the inclusion or creation of noncommercial content in order to reach a broader audience and attract more advertising is present across all of them. We conclude, therefore, that the yellow pages directories are entitled to full First Amendment protection."
Commenter dmatos: "In the past 10 years, there is only one thing I have — ever — used a phone book for. I've used it to call my ISP when I cannot connect to the internet."
The difference is obviously that Seattle residents and apartment managers don't want phone books delivered in mass, consider them a nuisance and taxpayers are having to fund the disposal of two million pounds of paper waste annually.
Newspapers are for the most part opt-in and other media generally don't generate the same level of waste. The courts ignored the environmental impacts of phonebooks and they ignored the myriad of other ways phone-book companies can make their "speech" available, e.g. kiosks or coffee shops, as alternative weeklies do.
Also, the Court showed no concern with requiring residents to provide their personal information to participate in the company's private opt-out programs when these kinds of direct marketing corporations have a history of misusing personal and private information.
The phonebook settlement illustrates the widening arsenal that corporations use to control legislation in our communities.
Seattle carefully crafted its opt-out program to survive legal challenge. The city constantly tiptoes to avoid lawsuits because of their potential expense. In 2012, the city council issued only advisory resolutions against escalating coal exports and Citizens United for these reasons.
Furthermore, the Court showed no awareness of the growing pattern of corporations wielding economic power to fuel referendums that overturn local law.
In Washington state in 2011, Costco spent $22 million to privatize Washington State's liquor sales. In 2009, the Seattle City Council’s tax on plastic grocery bags was overturned by a $1.4 million referendum campaign led by the so-called "American" Chemistry Council, whose members include Japan’s Mitsubishi Chemical Corporation, Germany’s Evonik and Dutch Akzo Nobel.
The significance of the phonebook lawsuit is that it's no longer clear what lawmaking authority the actual residents of Seattle have left. Lawsuits and referendums are just forms of corporate speech and power that control government aspirations and strike at it when it gets out of (corporate) line. This is the new normal.
This ruling represents a lot of what's broken with America and its legal system:
- We allow corporations (foreign and domestic) to intimidate, limit and overturn the lawmaking capacities of our local elected bodies, even when we're trying to preserve our quality of life.
- We allow ongoing environmental harms regardless of public nuisance or value and allows corporations to externalize the resulting costs to taxpayers.
- We allow corporations to parlay human rights victories from the Civil War-era to bend communities to their will.
Commenter Ballard206: "Drop them all at the doorsteps of the company executives, and invite the press."
Many commenters wanted to respond emotionally in ineffective ways typical of a lot of American-style activism, e.g. dumping phonebooks at the houses of phonebook executives. Certainly, it's very human to want to respond this way.
But, American-style activism silos itself. It fights one-off battles in a system rigged for corporate dominance. It rarely wins significant fights and its victories aren't usually leverageable by other causes.
It’s important in any conflict to not always engage in the battles our opponents present to fight.
Dumping, burning or taxing phonebooks or boycotting advertisers won't likely provide either short-term or long-term solutions to the deeper issues.
Like what you just read? Support high quality local journalism. Become a member of Crosscut today!
Twitter
Facebook
RSS Feeds
Comments:
Posted Fri, Mar 8, 7:26 a.m. Inappropriate
What I've never had adequately explained to me, and what this article doesn't even pretend to address, is why free people, who band together to engage in business in the form of a corporation, should be expected to give up their rights when they act as a group. I'd love to hear how the "collective rights" crowd addresses that.
Posted Sat, Mar 9, 4 p.m. Inappropriate
I look forward to the day when the Roberts Court trashes legal discovery as a violation of some corporate persons 5th amendment rights. That ruling will come much sooner than the finding for their their right to corporate capitol punishment for the next Bhopal.
Posted Sat, Mar 9, 4:11 p.m. Inappropriate
It's great to see a libertarian -leaning sort stand up for the rights of an entity that ceases to exist without the sanction of a government. Collectivists come in many flavors.
Posted Fri, Mar 8, 8:23 a.m. Inappropriate
When banded together as a corporation, the individual shareholders have their liability limited. This was considered an adequate trade-off for limiting rights.
Posted Fri, Mar 8, 9:07 a.m. Inappropriate
I am sympathetic to your annoyance with this situation but it is very little different from the ads I am forced to look at in order to read Crosscut and other websites or, more directly, the bundles of sales promotion literature I get with the mail and with the Seattle Times delivery. I can certainly cancel my subscription to the Times and I can stop looking at websites; that much is different but the tradeoff is not proportional. Recycling the phone books seems reasonable by comparison. I like to think that eventually the poor sales promotion phone books actually provide to the advertisers will curtail their distribution.
Posted Fri, Mar 8, 9:29 a.m. Inappropriate
@dbreneman, I think @rforce makes a good point. Also, most corporations aren't owned entirely by Americans ... yet we grant them United States Constitutional rights such as Free speech (in the phonebook case) - which allows them to overturn the laws passed by our representatives (the city council). My last Crosscut piece describes this: http://crosscut.com/2012/06/21/federal/109277/seattles-stand-against-corporations-people/
Often, we're overturning the autonomy of American communities to benefit shareholders living overseas.
Posted Fri, Mar 8, 4:04 p.m. Inappropriate
I am also dubious of the argument that rights are properly exchanged for privileges. By definition, a right is something that can not be taken away without the violation of a person's essence as a rational free agent. Corporations are not real people, of course, they are an extension of the owners' rights as those rights are exercised in business transactions. Corporations cannot marry, recuse themselves under the Fifth Amendment or vote. But they can speak, enter into contracts and pursue litigation. If they could not, they would be ineffective as business enterprises, and the limited liability that they afford to the stockholders would be pointless.
There is a solution for businesses that become abusive in any context, and that is for the shareholders to enforce good behavior. Most people give little credence to citizens who gripe about government, yet refuse to vote, and rightly so. I would maintain that business is as much an element of a free society as government, and those who rail against business practices without participating in the process lose some credibility on that subject as well.
Posted Mon, Mar 11, 3:06 p.m. Inappropriate
I'm to trust the shareholders of a business to "enforce good behavior"??
Oh fluffy fluffy pink unicorn wonder world!
Posted Fri, Mar 8, 9:32 a.m. Inappropriate
@kieth, Seattle reported 2 million pounds of paper waste saved each year by the opt out program. Those recycling costs are borne by taxpayers - not by the phonebook companies. The Seattle Times delivery is opt-in. Web ads create no physical waste.
The courts are creating a situation where Seattle residents have to provide their private information to these direct marketing companies in order to prevent them from leaving essentially garbage on our porches.
http://yro.slashdot.org/story/13/03/05/1626242/dont-want-a-phonebook-give-up-your-privacy
Posted Fri, Mar 8, 10:16 a.m. Inappropriate
+1 to RForce. Corporations do not have the obligations of citizenhood; nor should they have the benefits. They do not serve on juries; they do not serve in the armed forces, and they (supposedly) don't vote or hold office. The "persons" of the corporate entity are shielded from personal liability for their collective actions. They are legal constructs intended to facilitate commerce - why do people think that they should be treated like "people"?
Posted Fri, Mar 8, 10:26 a.m. Inappropriate
@psj and literalists should note that the word corporation appears nowhere in the Constitution.
Posted Fri, Mar 8, 8:45 p.m. Inappropriate
There are a lot of things not mentioned in the constitution, privacy and travel being a couple.
I suppose you're trying to make a point but you seem to be missing the point, federal judges have granted recognition to corporations and unions. Just another gift from the folks who gave us Roe vs. Wade and a whole host of other rulings that generate unrest with certain members of society.
Posted Fri, Mar 8, 11:50 a.m. Inappropriate
Jeff, the "opt-in" for Seattle Times advertising bundles is something I was unaware of.
Are you saying ST will forego delivering the advertising catalogs? I think you are saying that I can stop subscribing, yes? if billboards bother me I can stop driving my car too. The weight of paper delivered to my house by ST in one year surely exceeds the total weight of a yearly phone book by at least an order of magnitude. So I think you dismiss my comparison too quickly. The servers that power the internet are not negligible either, nor the power my computer uses. Roughly 10-20% of what I see on my screen is advertising. Businesses who pay for advertising in free newspapers and in the yellow pages do so with the conviction that the advertising effectively increases their sales. When, as predicted above, people no longer use the free newspapers to find sexual partners or the yellow pages to find someone to buy new tires from the motivation to print and distribute the publications will end. Until that time...etc.
Posted Fri, Mar 8, 12:59 p.m. Inappropriate
@kieth: sorry I misunderstood your first comment. Yes, this court decision also limits the ability of the Seattle City Council to legislate things like the SeaTimes mail circulars - and I believe those are delivered by the Federal post office - so there are slightly different areas of law. In any case, the Courts are saying corporate speech rules over what we want in our neighborhoods.
Our elected council-people didn't want to wait for the markets to terminate the Yellow Pages wasteful practices, we wanted to pass a law to end those practices now. The Courts said because these Corporations can leverage the Fourteenth Amendment (meant to provide equality to freed slaves) ... they have speech rights and that overruled the council.
My point is that it's ridiculous that corporations are using laws meant to eliminate the harms from slavery to gain power over our local democracies.
On a lighter note related to the energy used by the Web - perhaps you'd appreciate this on your Friday:
http://grist.org/list/tweetfarts-lets-you-find-out-how-much-carbon-your-dumb-twitter-hashtag-is-generating
Posted Sat, Mar 9, 11:46 a.m. Inappropriate
Jeff, clearly you do not take the print Seattle Times, or at least within Seattle where carriers still reign but no longer on foot nor providing doormat service. Flyers mingled with news are now heaved daily from automobiles—horrors. I occasionally use the yellow pages,less and less often the white, but every day every single flyer, increasingly multi-pages, colored and glossy, goes un-viewed right to the taxpayer provided recycling.
I may be old hat, but while information about the countless decisions made daily on my behalf is more flittered or buried than ever (one-paper, less reporters) it appear more visibly and more often in the print version than in the abbreviated online ST. Surely as worthy of concern as too much recycling of timber is our reduction to one paper, less reporters on top of the perpetual: http://books.google.com/books/about/The_Missing_News.html?id=f-Bu6KzhtHgC
And yes, the tempting alternative, if one has the time, is to spend the entire day online.
Posted Sun, Mar 10, 6:45 p.m. Inappropriate
@afreeman - sounds like you should take your complaint to the Seattle Times... David Boardman dboardman@seattletimes.com ... or cancel your subscription (if I understand you correctly).
Posted Mon, Mar 11, 3:55 p.m. Inappropriate
@ Jeff's reply that lacks a reply box:
You do misunderstand: Boardman surely is well aware of increasingly missing news— any thoughtful reader sees desperation in the steady increase of more mult-color, multi-page fallouts and less newspaper pages that once also contained the ads. A feature of Crosscut most valued by commenters, although troublesome to Crosscut, is the wider weight of its smaller audience. Diehards interested in local access to meaningful news support Crosscut, the ST and local sources of books in print. Timber is renewable, not so sure about citizenship.
Thanks for checking the reception!
Posted Mon, Mar 11, 11:33 a.m. Inappropriate
A problem with trying to rein in abuses by corporations is the difficulty of doing so without restraining the First Amendment rights "of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is not easy to restrain commercial speech without also interfering with advocacy speech. Like by the NAACP...
Posted Fri, Mar 8, 12:05 p.m. Inappropriate
Good writeup Jeff. Thanks staying on top of this issue. Let's be clear that corporations are not persons and have no constitutional rights. And they have no rights to impose their costs (e.g. waste disposal) on unwilling individuals.
Posted Fri, Mar 8, 12:53 p.m. Inappropriate
Thanks @brendenw!
Posted Fri, Mar 8, 1:32 p.m. Inappropriate
From the Endangered Species Act. Definitions:
"The term person means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any
foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States."
Posted Fri, Mar 8, 1:27 p.m. Inappropriate
There seems to be two arguments here: one is that the subject phone book uses up a lot of paper (OK, I agree); the other is that corporations have no right to deliver messages to my house short of prior approval (I guess). So it's OK for Leftie's Pizza to put a message on my door knob or under my windshield wiper but not Pizza Hut. Is that your argument? pretty thin stuff.
Posted Fri, Mar 8, 1:46 p.m. Inappropriate
@kieth - The city council wasn't regulating flyers on door knobs. They were regulating heavy, wasteful phonebooks delivered in mass to apartment buildings and houses even when they aren't wanted. The issue here is that the courts used laws designed to provide equality for freed slaves to allow global investors who own the phonebook companies to overturn the lawmaking authority of our elected community leaders.
Posted Sat, Mar 9, 11:43 a.m. Inappropriate
Moved to above where I intended it. Note to webmaster: program does not let me delete.
Posted Sat, Mar 9, 4:48 p.m. Inappropriate
Saturday thoughts ... The Seattle City Council decided to ban plastic bags at grocery stores, and we now pay 5 cents a bag to get a paper bag. The Seattle City Council banned delivery of the free phone books, now the ban must be lifted (illegal after all).
We readers reading online do not produce wasted paper or wasted paper ads. Perhaps the Seattle City Council should just ban all paper entirely.
I jest, I jest. What I really wish is the Seattle City Council would quit wasting time banning this and that.
Posted Sat, Mar 9, 8:04 p.m. Inappropriate
Is CROSSCUT organized as a corporation. If it is, ought it to be censored?
Login or register to add your voice to the conversation.