Court whacking of Seattle on phone books lets corporations run legally amok
by Jeff Reifman
The distribution of phone books has been targeted by environmentalists and others in much of the world: This Flickr photo from Australia has a caption mocking paper phone books. Credit: Avlxyz/Flickr
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.
The legal framework of corporate personhood, corporate constitutional rights, corporate speech and corporate money in politics must end. And, until it does, none of the issues that put Seattle’s quality of life at risk will be resolved. All advocacy organizations regardless of size need to unite around this cause. As long as citizens and activists continue to respond in one-off, disparate ways to each individual fire, we will all lose.
Commenter Xof: "I'm really trying to come up with a plausible slippery-slope argument that starts with, 'A corporation is not allowed to dump trash on my front porch without my permission' & ends up with 'jackbooted thugs', but it's really not happening over here."
It's also important to note that the ACLU is pro-corporate personhood and pro-free speech for corporations. It ignores the overwhelming power that corporate money has to upend the system. It is not on the side of communities when it comes to democracy.
There might have been value in Seattle appealing this case to the U.S. Supreme Court on the basis of Corporate Personhood and Corporate Constitutional Rights, and the standing of foreign corporations.
While the current Supreme Court would likely have ruled against the city, there is value in raising these core issues into the national spotlight. It might have been the best million dollars the city would ever spend.
But what can be done?
When you talk with friends and colleagues about politics, highlight corporate personhood and corporate constitutional rights as defining issues.
Reconsider your financial support of political parties and organizations that are not part of a strategy that includes reforming our legal framework of rights. Stop supporting ineffective, one-off organizing.
I do believe we can win. But I believe we need a new kind of resistance that's more focused on dismantling the actual source of the harms we're fighting. That source is the legal foundation for corporate power and influence in this country.
The writer was one of the sponsors of a 2012 initiative in Seattle to eliminate coroporate personhood in the city. Montana last year passed a measure aimed at a constitutional amendment to eliminate corporate personhood. Colorado passed a measure seeking an amendment to allow Congress and the states to regulate campaign contributions.
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