Update: In response to my public records request, the City of Seattle reports it has paid $264,503 in outside legal fees during the Yellow Pages Lawsuit.
Reading through the comments on BoingBoing about Seattle’s proposed $500,000 settlement with phonebook companies highlighted for me how misunderstood the issues of corporate influence are and how predictable our responses are as concerned citizens and activists.
This case 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 is preventing 2 million pounds of waste annually, we can guesstimate that the Court’s decision to allow deliveries of unwanted phonebooks may affect over 100 million pounds of waste per year nationally.
[pullquote3 quotes=”true” align=”right” textColor=”#000000″ cite=”Commenter CW”]Littering is speech.[/pullquote3]
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:
[blockquote align=”center” cite=”When is a Corporation Like a Freed Slave (Mother Jones) ” citeLink=”http://www.motherjones.com/politics/2006/10/when-corporation-freed-slave”][Corporations] were not considered ‘persons’ until after the Civil War, when business magnates began to avail themselves of the 14th Amendment’s antidiscrimination protections.[/blockquote]
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 which corporations routinely use in court to overturn local regulations such as Seattle’s phonebook law.
[pullquote3 quotes=”true” align=”right” textColor=”#000000″ cite=”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[/pullquote3]
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 phonebook 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, I challenge any lawyer to explain to me the basis by which foreign corporations can sue for United States constitutional rights.
Neither are these companies economic stalwarts or entrepreneurial visionaries that we might want to incent 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 trade for less than five dollars (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:
[blockquote align=”center” ]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.[/blockquote]
[pullquote3 quotes=”true” align=”right” textColor=”#000000″ cite=”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.[/pullquote3]
The difference is obviously that Seattle residents and apartment managers don’t want phonebooks 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 phonebook companies can make their “speech” available e.g. kiosks or coffeeshops, 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.
Corporations Overturning Community Wishes is The New Normal
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. The $500,000 settlement figure doesn’t include the city’s own legal costs incurred over an 18 month lawsuit which included written and oral arguments to the Federal Court of Appeals managed by a private law firm. City officials won’t comment but I’ve made a public information request and expect to have this information soon. It will be a sizable figure. (It’s $264,503) In 2012, the city council issued only advisory resolutions against escalating coal exports and Citizens United because it feared similar lawsuits.
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 allow 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.
[pullquote3 quotes=”true” textColor=”#000000″ cite=”Commenter Ballard206″]Drop them all at the doorsteps of the company executives, and invite the press[/pullquote3]
Many commenters wanted to respond emotionally in ineffective ways typical of a lot of American-style activism. It’s tempting to want to respond to the phonebook companies directly. My personal favorite is a massive phonebook burning in the middle of the street at Pine & 3rd by Westlake Park.
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.
[teaser]I think its important that activists not always engage in the battles our opponents want us to fight.[/teaser]
Dumping, burning or taxing phonebooks or boycotting advertisers won’t likely provide either short term or long term solutions to the issues that face us.
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 we care about will be resolved. As long as we as citizens and activists continue to respond in one-off, disparate ways to each individual fire, we will lose. All advocacy organizations regardless of size need to unite around this cause.
[pullquote3 quotes=”true” align=”right” textColor=”#000000″ cite=”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[/pullquote3]
I think it’s also important to note that the ACLU and liberal dignitaries such as Glen Greenwald are pro-corporate personhood and pro-free speech for corporations. They ignore the overwhelming power that corporate money has to upend the system. They are not on the side of communities when it comes to democracy.
What We Can Do
I do think there might be value in asking the City of Seattle to appeal this case to the Supreme Court on the basis of Corporate Personhood and Corporate Constitutional Rights, including rights of foreign corporations such as Yellow Media, Inc.
While the current Supreme Court is likely to rule against the city, I think there is value in raising these issue into the national spotlight. It might be the best million dollars the city will ever spend.
You can email Seattle Mayor Mike McGinn and our city council here:
firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com.
Furthermore, when you talk with friends and colleagues about politics, I encourage you to highlight corporate personhood and corporate constitutional rights as defining issues of our time.
Withhold financial support from political organizations unless they are part of a strategy which 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.
[fancy_header bgColor=”#ffffff” textColor=”#000000″]Related Links[/fancy_header]
- City of Seattle Response to Public Records Request: Invoices Paid to Summit Law Group for Legal Representation in Yellow Pages Lawsuit
- Court Rules Yellow Pages Are Protected Speech (TechDirt)
- Seattle will pay $500,000 to settle yellow pages lawsuit (Seattle Times)
- Seattle’s stand against treating corporations as people (Crosscut)
- Seattle’s Perkins Coie Secures Victory in Ninth Circuit First Amendment Case (Perkins Coie Website)
- Seattle’s Phonebook Opt Out Site