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Brian Giacometti

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Free to Speak, Free to Kill?

Posted: 04/12/2012 3:57 pm

"Corporations are people, my friend." And so Mitt Romney, the presumed Republican nominee for president, spoke up for corporate people against a vile onslaught by human people one day in Iowa.

With all the jabs and jokes about Mitt Romney's love for corporations comes a real and longstanding legal debate over the "personhood" of corporations. But while this focuses on the benefits that come with being a person, it ignores the responsibilities. While we can joke about the corporation that broke your heart, that inspired you to go back to college, that came out of the closet, or that didn't get out of bed for a week because it was sooo depressed -- we'd be missing out on a chance to really get to know what should be expected from our new corporate friends:

If corporations are people, can they be punished like people?

When Romney made his now-famous retort -- reported like a gotcha moment for liberals and a moment of bravery for board rooms filled with teary-eyed executives trembling in the presence of true courage -- it came during a debate on campaign spending and speech. How much can a corporation spend?

And we've all heard the countless comments that come when someone honestly professes their love in a public forum. Did Will Rogers ever meet a corporation that he didn't like? Can a corporation break your heart? Can you fall in love with a corporation? (Before you answer that last one, check to see if there are any Apple users around.)

The personhood debate stems from legal rights enjoyed by corporations. Do they have standing in court? Can they donate to their favorite politician? Do they have freedom of speech? And joking aside, these are legitimate debates. Not only because they are "made of people" as Romney noted, but also because they are very real players in our society.

But if they have rights, do they also have risks before the law? Can they be arrested for robbery? Punished for perjury? Law students reading this are at this moment reciting the criteria for "piercing the veil" -- or reaching beyond a company's limited liability to go after the human people inside. Put that aside, we're talking about corporate people -- and we're asking, can they be guilty of crimes against humanity?

The Supreme Court will ask these very questions soon in a case called Kiobel v. Royal Dutch Petroleum, which focuses on crimes against humanity allegedly committed in the name of Shell in Nigeria during the 1990s. Plaintiffs in that case are trying to use the Alien Tort Statute (or ATS) to punish Shell for the actions they profited from.

To be clear -- if human people did what Shell did, the Supreme Court would not be hearing this case. It is clear that human people, especially if the humans were American, would be punished. But this isn't a case against American human people, it's against Shell, my friend.
The case deals with environmental activists in Nigeria who were executed by the Nigerian military in the 1990s. A vast case has been put together detailing how Shell was allegedly aware of the military's targeting of these activists, and even offered guidance into how the military should handle them. The case suggests that the company colluded with the Nigerian military to eliminate pests. However, the case can't be presented until the court agrees that Shell, if found guilty, can be punished at all.

Romney could come out in favor of a decision allowing the ATS to be used by non-Americans (aliens) and that corporate people can suffer when they have made human people suffer. Just as German corporations were dissolved upon discovery of their role in Nazi genocidal behavior, America has earlier shown a tendency to punish human rights violators -- even if they are corporate people and not human people.

The activists did not approve of the devastation Shell was causing in their community. They protested. They were tortured. Some were executed. Hundreds were killed. The Nigerian government allegedly received financial and other support from Shell in suppressing the protests. None of this is really disputed.

The ATS is one of the first laws ever passed by Congress, dating back to 1789, when the founding fathers we adore were also living human people. They said that American courts can be used to punish actions by aliens which violate "the law of nations or a treaty of the United States." But two years ago, one of those American courts said while human people can be punished, corporate people can't. Corporate people regularly use American courts to hear contract disputes, patent violations, and other cases, no matter where the damage takes place. But human rights violations? Let's not get carried away.

Presidential elections are great opportunities for us to discuss these tangles we get ourselves into when no one is paying attention. If Mitt Romney is running for president with a platform that defends corporate personhood, and if he is running as someone who supports the founding fathers, then he should also find that Shell should be punished. What do you say, Mitt? Come out for personhood in full, and support the ability of our courts to hear the case. It's only fair in a world where all corporations are created equally, my friend.

 
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