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– 2 days ago

The Path to Legal Hell is Paved by the Left


Two days ago, Wendy Kaminer over at the Atlantic penned a piece looking at the ACLU’s lawsuit against the NSA and the idea of corporate personhood.  The ACLU, it seems, is concerned about the idea that its phone call metadata is being snarfed up by the spooks and could be used to see who is complaining about government abuses.  They have filed a suit – as the ACLU – in court.  That suit, by extension, represents all the millions of Americans who have similarly had their privacy violated by big brother.

The ACLU (including its New York affiliate) is not just the lawyer but the plaintiff in the latest Clapper case. As the complaint recounts, ACLU and ACLU Foundation are subscribers to Verizon Business Network Services, “whose communications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now … Plaintiffs work often depends on their ability to keep even the facts of their discussion with certain individuals confidential.”

Of course, ACLU is not merely seeking to protect its interests in this lawsuit: It seeks to protect the interests of clients and prospective clients whose identities are revealed by the metadata, and for whom the surveillance “is likely to have a “chilling effect,” deterring them from seeking legal assistance. Maybe it could successfully assert standing to represent a client, or individual employees. But, again, the ACLU is the plaintiff in this case, representing itself, defending its own corporate constitutional rights.

“[T]he dragnet surveillance the government is carrying out under Section 215 infringes upon the ACLU’s First Amendment rights, including the twin liberties of free expression and free association,” the organization’s press release explains: “The kind of personal-data aggregation accomplished through Section 215 also constitutes an unreasonable search and seizure under the Fourth Amendment.”

In the meantime, the left, ever since the Citizens United decision, has been up in arms about this very idea of treating corporations as people and giving them rights under the Constitution. The recently formed group “Move to Amend” and the push for the “People’s Rights Amendment” aim to eliminate any rights of free speech for companies.

Section 1.  We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2.  People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3.  Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

Now, corporations have had their rights recognized by the Supreme Court since at least 1819. SCOTUS specifically ruled on the question in 1886, noting that nobody questioned that. But the left, not ones to let 200 years of legal precedence dissuade them, think they know better now and want to toss all that out.

News today, however, brings us another reason to ignore their latest cause du jour.  What happened today? This did.

Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests the court makes, arguing that the company has a constitutional right to speak about information it is forced to give the government.

The legal filing, which invokes the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about broad National Security Agency surveillance of Internet traffic.

What?  Companies using their first amendment protection to push back against government overreach and domestic surveillance. Can’t be!  We all know, from our friends advocating for these restrictions, that companies only use their rights to engage in political shenanigans!

So here are two cases – one involving the ACLU and one involving Google – that clearly illustrate the wrongheaded thinking behind the People’s Rights Amendment.  As just one final example, let me throw out this:

Many lawyers are troubled by the idea of animals having rights or trees having rights, or ‘how does a mountain have rights? It seems very contrary to a lot of Western legal thinking, but actually, if you think about it, we let corporations have rights, the stock exchange has a right. So we have legal fictions that have rights, it’s only nature that doesn’t fit in there. One of the things I was suggesting is it is true that an ant or a gazelle or a tree or a mountain or a river cannot actually walk into court and argue. It doesn’t have what we call legal agency. But, you know, many parties don’t have that. Children, for example, in a divorce suit, a two year-old, a child, a young child, they don’t have agency. They don’t have agency to protect their rights, so we appoint a guardian for them.”

That’s Andrew Kimbrell, one of the “Initial Signatories” to the “Move to Amend” arguing that since corporations have rights, we can extend that concept to the natural world to protect endangered animals, waterways, flora and fauna. It apparently hasn’t occurred to Kimbrell that undermining the rights of non-people would also undermine the rights of the natural world.

As Kimbrell notes, “In the United States, we have the Endangered Species Act, and it’s kind of an amazing law and what it really says is that you cannot endanger species or make it extinct no matter what it’s utility is to man. … We have that, and a few other places in our law, where the consciousness is beginning to grow, where we’re beginning to see the seeds of this happening.”

Under a legal model where only people have rights, what happens to the rights of endangered species?  Could a landowner sue the EPA arguing that only they, as humans, have rights?

For the left, it just doesn’t matter, I guess.  After all, they are well intentioned.  But what’s that saying about the path to hell?



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Written by Michael Turk