Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (9 page)

According to Judge Kessler, “Defendants realize that they need to get people smoking their brands as young as possible in
order to secure them as lifelong loyal smokers.” She quoted dozens of internal corporate documents, including an “opportunity analysis” weighing how to exploit teen insecurities:

Socially insecure, they gain reinforcement by smoking the brands their friends are smoking, just like they copy their friends’ dress, hairstyle, and other conspicuous things. To smoke a brand no one has heard of—which all new brand names are—brings one the risk of ostracism. It’s simply not the “in” thing to do.
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What drives so many people to go to work each day, year after year, trying to figure out how to hook children on smoking? A cigarette corporate executive provides the answer in a long-concealed internal corporate document: the possibility of billions of dollars in corporate profit. “If we hold these YAS for the market average of 7 years,” he wrote, “they would be worth over $2.1 billion in aggregate incremental profit. I certainly agree with you that this payout should be worth a decent sized investment.”
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By the 1990s, the “decent-sized investment” targeting kids for cigarette sales had succeeded in ensuring that 72 percent of six-year-olds in America recognized the cartoon symbol of Camel cigarettes.
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This is why government needed to step in. Several states, including Mississippi, Washington, and Massachusetts, had begun law-enforcement actions against the cigarette conspiracy by the mid-1990s. These cases began to uncover the truth about the conduct of the cigarette corporations, and by 1998, Massachusetts banned outdoor cigarette advertisements within 1,000 feet of a playground, elementary school, or secondary school.
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Massachusetts Attorney General Scott Harshbarger said the law was needed “to stop Big Tobacco from recruiting new customers among the children of Massachusetts.”
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In response, the tobacco corporations went on offense; they cried “free speech!” and sued Harshbarger to block the law. They turned to the Powell-Chamber corporate rights theory that by 2000 had become a very potent tool for corporations to evade responsibility, accountability, and public oversight. The corporate “legal foundations” imagined by Lewis Powell and the Chamber of Commerce back in the 1970s were now fully funded by millions of corporate dollars and rushed into the fray. They filed briefs alongside the tobacco corporations, demanding that the Supreme Court protect the “vital role in American society” of the cigarette corporations. They quoted Henry David Thoreau and Justice Benjamin Cardozo, and they weirdly complained that during World War II, “commercial speech became a casualty as surely as Veronica Lake’s ‘peekaboo’ hairstyle.”
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The corporate lawyers and legal foundations repeated the now familiar refrain that corporations are the same as people. They said that restricting the cigarette corporations’ advertising around playgrounds and schoolyards violates corporate speech rights under the First Amendment.
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The Supreme Court, by this time fully shaped by the corporate power legacy of Lewis Powell, who had retired in 1987, agreed and struck down the Massachusetts law.
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The law keeping Joe Camel and the cigarette ads away from schools and playgrounds was dead.

Cigarette Corporations Aren’t People

Sometimes First Amendment cases can be infuriating because the freedom at stake is often the freedom to say things that are unpopular, cause offense, challenge or undermine government policy supported by many, or inflict emotional pain. Infuriating though that can be, people usually appreciate that the Supreme Court’s protection of someone’s unpopular free speech also
protects a core American value and benefits all of us. But when the Supreme Court saved the “right” of cigarette corporations to advertise around playgrounds and elementary schools, was a single human being made any more free? Was our public debate and state of knowledge any more enriched?

When the government suppresses real speech, the speech of real people, we all lose some of our freedom. Our ability to govern ourselves is compromised when ideas and information are restrained, even bad ideas and unpleasant information. But when we regulate corporate economic conduct, what rights of anyone are lost? Is speech even at issue at all?

The Massachusetts law regulated corporate, commercial conduct, not speech. If the Massachusetts law curtailed the youth-targeting strategies of cigarette corporations, sales might have dropped, but how does that create less freedom of speech for anyone? Any human being who had something to say about cigarettes and youth smoking remained free to say or write whatever that person wanted, wherever and whenever he or she wanted, about cigarettes, youth smoking, or anything else. The Massachusetts law about cigarette advertising had nothing to do with people or groups of people speaking, writing, or expressing their point of view in any way. Even if someone wanted to stand outside a public park or school with a sign saying, “I love cigarettes and kids should, too,” the Massachusetts law did not touch them.

In the unlikely event that a real person actually did that, though, what would happen? Perhaps we would see how free speech is supposed to work in America: other people would talk with the miscreant and ask him or her to consider whether that was a decent thing to do. The creep might respond, and debate would ensue. At some point, the cigarette enthusiast or his or her opponents would get tired and move along. If the smoking advocate really had strong views about the merits of smoking, the
debate might continue the next day when the person came back again or in writing, interviews, meetings, or wherever people wanted to talk, listen, and debate. The Massachusetts law prevented none of that.

Try talking or debating with Joe Camel; it doesn’t work. It doesn’t work because Joe Camel and the corporation that spawned him are not people. Corporations never get tired, and they never move along until the money stops or the law steps in. People speak. Corporations do not speak. With the Court’s new corporate speech theory, corporations won a dangerous immunity from the law and from the will of the people, while we the people gained nothing. Indeed, we lost freedom and we lost a tool of self-government.

Monsanto’s Genetically Modified Drug

While the cigarette child-targeting fight was going on in Massachusetts, the people of Vermont were in a fight of their own. They were trying to preserve the right to know how our food is grown and made and the right to choose what kind of farming we want to support. As with the people in Massachusetts and the cigarette corporations, the people of Vermont were about to learn that winning the debate and overcoming corporate lobbyists and the likes of Monsanto Corporation in the legislative process are not enough. Monsanto now holds the corporate constitutional trump card.

Monsanto is a transnational chemical, biotech, and industrial corporation with more than $11 billion in annual global sales of chemicals, pesticides, herbicides, and genetically modified seeds and animal drugs. Some of Monsanto’s products have included DDT, saccharine, aspartame, sulfuric acid, Agent Orange, and various plastics and chemical products. Monsanto’s recent products include genetically engineered food and agriculture products that are variations of animal and plant pesticides and herbicides.
In response to questions about the safety of its “biotech food,” Monsanto’s spokesperson says, “Monsanto should not have to vouchsafe the safety of biotech food. Our interest is in selling as much of it as possible. Assuring its safety is the FDA’s job.”
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In the 1990s, Monsanto started selling a genetically engineered drug to be injected into the blood of dairy cows to force them to produce more milk. The drug was rBST (also called rBGH by some and labeled Posilac by Monsanto). Monsanto had used recombinant (meaning artificially created) DNA to fabricate rBST.
BST
stands for bovine somatotrophin, a naturally occurring hormone in cows, and
BGH
refers to “bovine growth hormone.” The
r
in
rBST
and
rBGH
stands for “recombinant DNA” and refers to the Monsanto drug, which is not natural.

Most democratic countries in the world banned the use of rBST in any dairy product intended for human consumption. Canada prohibited the drug after “more than nine years of comprehensive review of the effects of rBST on animal and human safety, and consideration of the recent findings by two independent external committees.”
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All twenty-seven countries of the European Union, as well as New Zealand and Australia, also banned rBST. In the United States, Monsanto got its way. The Food and Drug Administration approved the use of rBST at the end of 1993. The FDA brushed aside the farmers, mothers and fathers, scientists, and other people around the country who raised serious questions about rBST.

Many people opposed the use of the Monsanto’s drug, including Dexter Randall, a sixty-five-year-old dairy farmer who has lived and worked in Vermont all his life. Randall and others got involved in an organization called Rural Vermont and tried to stop the FDA from approving the Monsanto drug. They presented studies showing elevated antibiotic residues in milk (increased antibiotics were needed because rBST increased disease in cows).
They pointed to other studies showing higher levels in rBST milk of an insulin-like growth factor linked to breast cancer in humans and other dangers. They cited the absurdity of forcing cows to produce more milk, driving milk prices lower, at a time when family dairy farms all over the country were failing and taxpayers were paying millions of dollars to keep milk prices high enough to prevent a collapse of farm communities.

“Organic dairy farmers were already not getting paid enough for their milk, and when rBGH went on the market they suffered even more,” says Randall. “But in addition to these economic concerns there were the health impacts of the product—the possible harm it could cause to livestock and humans. No long-term studies had been done. None of the truth was brought out. Our government let corporations override everything that made sense to the people.”
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The Vermont farmer says, “Zillions of studies were presented to the FDA, but anything they saw they just turned the other way.” The FDA claimed that it lacked the authority to consider “social” or “economic” factors or to require a label on rBST dairy products. The FDA, though, reported that “a State that has its own statute requiring food labeling based on a consumer’s right-to-know would not be preempted by FDA from requiring rBST labeling.”
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Randall and many other people in Vermont went to work to ensure that Vermont law would protect the people’s right to know. “We lobbied our state senators and representatives, sent letters to the editor, talked all over the place, made people aware of the problem,” Randall says. “There was lots of involvement. We basically held a protest in front of the statehouse, just to get our legislators and the public to take notice. We tried talking to our commissioner of agriculture and to other officials there.”

Monsanto pushed back, and progress was slow. Randall says, “There was always money overriding us—the industry rules. The
Grocers’ Association was screaming bloody murder, having to put labels on their products. Is it such a crime? People were still going to buy their products, but now they had a choice. I’ve always been a person for choice—you need to choose what size pants you’re going to buy, don’t you?”

Finally, after organizing, researching, testifying at hearings, and letter writing, the people persuaded the Vermont legislature to pass, and the governor to sign, a law to protect the right to know about our food. The 1994 Vermont law said, “If rBST has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such.”
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In deciding how to implement the law in a balanced way, the Vermont Department of Agriculture held four hearings around the state, including one with interactive television. Ninety-nine speakers took the time from work and home to participate in the hearings, and 152 written comments were filed.
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Monsanto and the industrial dairy and grocery groups certainly weighed in, but according to the commissioner of agriculture in Vermont, “most individuals expressed that they felt they had a right to know what they wanted to purchase for themselves and their families.”
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Monsanto and the industrial dairy corporations lost the public debate, lost the debate in the legislature, and failed to persuade the commissioner of agriculture to keep people in the dark about rBST. They weren’t done, though. Monsanto had Covington & Burling, a corporate law firm in Washington, D.C., to lead the attack.

For years, Covington & Burling had serviced the drive to shelter corporations from public oversight by creating new theories of “speech.” According to Judge Kessler in the federal racketeering trial of the cigarette corporations, Covington & Burling even took a leading role among corporate lawyers in furthering the illegal cigarette industry scheme: “Two of those law firms,” she said, “in particular Covington & Burling, became the guiding strategists
for the Enterprise and were deeply involved in implementation of those strategies once adopted.” She added, “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”
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In Vermont, Covington & Burling represented the interests of Monsanto and the industrial dairy lobby in trying to stifle knowledge and disclosure about milk products derived from rBST-treated cows. They claimed that corporate speech rights entitled the industry to disregard the new right-to-know law. They insisted that Monsanto and the industry could refuse to disclose when milk and dairy products came from cows treated with Monsanto’s genetically engineered rBST.