1 00:00:04,680 --> 00:00:09,440 Speaker 1: The First Amendment's primary concern, and therefore the Court's concern 2 00:00:10,440 --> 00:00:16,160 Speaker 1: always has been the preservation of free and uninhibited dissemination 3 00:00:16,840 --> 00:00:18,800 Speaker 1: of information and ideas. 4 00:00:19,480 --> 00:00:23,400 Speaker 2: That is the late Justice Lewis Powell, reading his majority 5 00:00:23,520 --> 00:00:27,360 Speaker 2: opinion in the Supreme Court case First National Bank of 6 00:00:27,480 --> 00:00:30,040 Speaker 2: Boston versus Bollatti. 7 00:00:30,640 --> 00:00:35,760 Speaker 1: If the restrictive view of corporate speech taken by the 8 00:00:35,800 --> 00:00:41,000 Speaker 1: Massachusetts Court were accepted, government would have the power to 9 00:00:41,120 --> 00:00:45,760 Speaker 1: deprive society of the views of corporations on all issues 10 00:00:46,240 --> 00:00:50,280 Speaker 1: other than those that could be proved to affect adversely 11 00:00:50,760 --> 00:00:56,640 Speaker 1: their property or business interest. Corporations thus could be prohibited 12 00:00:56,720 --> 00:01:02,520 Speaker 1: from expressing views by advertisements of wise on all matters 13 00:01:02,560 --> 00:01:06,479 Speaker 1: of general public interest. We view the match Tuser's Court's 14 00:01:06,560 --> 00:01:13,840 Speaker 1: decision as seriously restricting public access to major sources of 15 00:01:14,000 --> 00:01:16,560 Speaker 1: ideas and educational information. 16 00:01:19,000 --> 00:01:22,960 Speaker 2: It was April nineteen seventy eight. The US had just 17 00:01:23,120 --> 00:01:26,200 Speaker 2: weathered the Opec oil embargo, but was about to be 18 00:01:26,280 --> 00:01:30,840 Speaker 2: plunged into another energy crisis spurred by revolution in Iran. 19 00:01:31,440 --> 00:01:34,360 Speaker 2: President Jimmy Carter was in the White House pushing energy 20 00:01:34,360 --> 00:01:39,000 Speaker 2: efficiency programs and installing solar panels. Exon was ramping up 21 00:01:39,040 --> 00:01:43,399 Speaker 2: research on renewable energy lithium batteries in this new thing 22 00:01:43,640 --> 00:01:48,880 Speaker 2: called the greenhouse effect. At Mobile Oil, Herbschmertz was focusing 23 00:01:48,920 --> 00:01:52,880 Speaker 2: on controlling the narrative, which required bending not just the 24 00:01:52,960 --> 00:01:59,040 Speaker 2: media itself, but also the laws governing media to his will. 25 00:02:00,040 --> 00:02:03,720 Speaker 3: That society has given the press a great privilege. That 26 00:02:03,760 --> 00:02:06,760 Speaker 3: privilege is embodied in the First Amendment. That privilege is 27 00:02:06,800 --> 00:02:10,480 Speaker 3: only going to survive so long as society believes that 28 00:02:10,520 --> 00:02:14,079 Speaker 3: the press is doing things that are unscual of society. 29 00:02:14,440 --> 00:02:18,400 Speaker 2: Blatti was a huge win for what Professor Robert Kerr 30 00:02:18,440 --> 00:02:22,640 Speaker 2: calls the corporate free speech movement. We heard from Kerr 31 00:02:22,639 --> 00:02:25,960 Speaker 2: in the last episode two. He's the University of Oklahoma 32 00:02:26,080 --> 00:02:29,680 Speaker 2: journalism professor who has written two books about Mobile Oil's 33 00:02:29,720 --> 00:02:31,240 Speaker 2: involvement in that movement. 34 00:02:32,400 --> 00:02:35,600 Speaker 4: I really think if Lewis Powell had not been on 35 00:02:35,639 --> 00:02:38,040 Speaker 4: the court at that time, it probably would have gone 36 00:02:38,080 --> 00:02:41,080 Speaker 4: the other way. The justices came very close to just 37 00:02:41,400 --> 00:02:45,160 Speaker 4: resolving it on a procedural basis, where there wouldn't even 38 00:02:45,200 --> 00:02:49,079 Speaker 4: be a First Amendment discussion. In the end, Justice Powell, 39 00:02:49,680 --> 00:02:53,080 Speaker 4: I mean, you go through the justices papers, they have 40 00:02:53,160 --> 00:02:56,359 Speaker 4: different conferences, and he winds up saying let me take 41 00:02:56,400 --> 00:02:59,960 Speaker 4: a shot at a majority opinion arguing the First Amendment 42 00:03:00,200 --> 00:03:03,640 Speaker 4: case here, and he has a difficult time. You see 43 00:03:03,680 --> 00:03:06,840 Speaker 4: how difficult a sale it was for Justice Powell wind 44 00:03:06,880 --> 00:03:11,920 Speaker 4: up four justices were rock solid against it, and a 45 00:03:11,960 --> 00:03:16,000 Speaker 4: couple others were really a tough sell. He had to 46 00:03:16,040 --> 00:03:19,520 Speaker 4: make some key changes to the opinion that made it 47 00:03:19,680 --> 00:03:23,880 Speaker 4: much narrower in legal terms to get the two he 48 00:03:23,960 --> 00:03:27,240 Speaker 4: needed for a five justice majority, So he winds up 49 00:03:27,280 --> 00:03:31,160 Speaker 4: five to four. Powell wins this ruling. He wrote it 50 00:03:31,280 --> 00:03:34,080 Speaker 4: very carefully to avoid the question of do corporations have 51 00:03:34,120 --> 00:03:36,920 Speaker 4: First Amendment rights? He could tell he would lose on that, 52 00:03:37,240 --> 00:03:40,840 Speaker 4: so he wrote it more, does the First Amendment allow 53 00:03:40,960 --> 00:03:47,120 Speaker 4: government to restrict spending on these ideas that the corporation 54 00:03:47,280 --> 00:03:50,600 Speaker 4: wants to buy ads to get out to the public. 55 00:03:52,000 --> 00:03:55,560 Speaker 2: Given his role in really advocating for the Court to 56 00:03:55,680 --> 00:03:58,840 Speaker 2: pick up the idea of corporate free speech and to 57 00:03:58,920 --> 00:04:02,560 Speaker 2: let him use Bellatti to define it, it's important to 58 00:04:02,720 --> 00:04:06,600 Speaker 2: understand here who exactly just as Powell was in the 59 00:04:06,680 --> 00:04:11,200 Speaker 2: history of corporate power in the United States. Prior to 60 00:04:11,240 --> 00:04:14,240 Speaker 2: his appointment to the Supreme Court by President Richard Nixon, 61 00:04:14,760 --> 00:04:19,680 Speaker 2: Lewis Powell was a tobacco industry lawyer and lobbyist. He 62 00:04:19,760 --> 00:04:22,520 Speaker 2: sat on the board of Philip Morris from nineteen sixty 63 00:04:22,560 --> 00:04:25,760 Speaker 2: four until his appointment to the Court in nineteen seventy one, 64 00:04:26,880 --> 00:04:30,200 Speaker 2: and Yes, Powell had tried to use a First Amendment 65 00:04:30,279 --> 00:04:34,840 Speaker 2: argument to protect tobacco company rights too, arguing that newspapers 66 00:04:34,880 --> 00:04:38,440 Speaker 2: that refused to run the company's denials of the links 67 00:04:38,480 --> 00:04:43,239 Speaker 2: between smoking and cancer were infringing on his client's' free 68 00:04:43,279 --> 00:04:47,320 Speaker 2: speech rights. The argument didn't work then, but in Blatti, 69 00:04:47,720 --> 00:04:51,680 Speaker 2: Powell struck a win for corporate free speech warriors everywhere. 70 00:04:54,120 --> 00:04:56,680 Speaker 2: Just a few months before he accepted his appointment to 71 00:04:56,720 --> 00:04:59,680 Speaker 2: the Supreme Court, Powell was commissioned by a friend of his, 72 00:05:00,080 --> 00:05:03,919 Speaker 2: the US Chamber of Commerce, to draft a strategy for 73 00:05:04,040 --> 00:05:07,640 Speaker 2: corporate America to deal with some of the social justice 74 00:05:07,680 --> 00:05:13,000 Speaker 2: gains made during the nineteen sixties. Powell was especially concerned 75 00:05:13,000 --> 00:05:16,880 Speaker 2: about all the conversations about corporate greed and corruption that 76 00:05:16,920 --> 00:05:19,600 Speaker 2: people were constantly seeing on their TVs. 77 00:05:20,520 --> 00:05:25,279 Speaker 5: You're accused of being anti business, are you? 78 00:05:25,320 --> 00:05:33,120 Speaker 6: No? Basically, the accusation is a mixture of terminology. What 79 00:05:33,160 --> 00:05:39,160 Speaker 6: we're against, our illegal, deceptive, fraudulent, collusive behavior, and if 80 00:05:39,160 --> 00:05:41,440 Speaker 6: they want to associate that with the term business. That's 81 00:05:41,480 --> 00:05:45,040 Speaker 6: their own terminology, not ours. We'd like to. 82 00:05:45,000 --> 00:05:50,800 Speaker 2: Separate too, That's right, Ralph Nader. In the mid nineteen sixties, 83 00:05:50,880 --> 00:05:54,360 Speaker 2: Nader had taken on GM, arguing that its cars were 84 00:05:54,520 --> 00:05:59,600 Speaker 2: unnecessarily unsafe. His work eventually led to seapbelt laws across 85 00:05:59,640 --> 00:06:03,360 Speaker 2: the kind of and he galvanized the American consumer movement 86 00:06:03,400 --> 00:06:05,720 Speaker 2: while he was at it, taking aim not only at 87 00:06:05,760 --> 00:06:09,440 Speaker 2: car companies, but also big oil, big ag, any industry 88 00:06:09,480 --> 00:06:12,000 Speaker 2: that had gotten so big it seemed like the government 89 00:06:12,080 --> 00:06:15,479 Speaker 2: was working for them rather than the people. To Powell, 90 00:06:15,600 --> 00:06:19,040 Speaker 2: this smelled like socialism and he was not here for it. 91 00:06:19,720 --> 00:06:22,599 Speaker 2: In his blueprint for the Chamber of Commerce, which came 92 00:06:22,640 --> 00:06:26,560 Speaker 2: to be known as the Powell Memo, powellaid the foundation 93 00:06:26,720 --> 00:06:29,240 Speaker 2: for what would go on to become the corporate right 94 00:06:29,279 --> 00:06:33,600 Speaker 2: wing in America. He took aim at so called liberal 95 00:06:33,720 --> 00:06:39,760 Speaker 2: university campuses for indoctrinating young people against capitalism. He suggested 96 00:06:39,800 --> 00:06:43,520 Speaker 2: the creation of powerful conservative think tanks that could help 97 00:06:43,600 --> 00:06:48,719 Speaker 2: push back against the Nators of the world, sparking organizations 98 00:06:48,800 --> 00:06:52,240 Speaker 2: like the Heritage Foundation, and he thought it might be 99 00:06:52,279 --> 00:06:55,280 Speaker 2: a good idea for corporations to figure out how to 100 00:06:55,279 --> 00:07:00,760 Speaker 2: write and disseminate sample legislation, especially at the state level, 101 00:07:00,960 --> 00:07:05,359 Speaker 2: an idea that eventually became the American Legislative Exchange Council 102 00:07:05,839 --> 00:07:11,240 Speaker 2: or ALEC. Today, ALEC writes sample legislation in partnership with 103 00:07:11,320 --> 00:07:14,440 Speaker 2: different industry groups and then pushes it out to state 104 00:07:14,520 --> 00:07:18,239 Speaker 2: politicians to get it passed. One of its big recent 105 00:07:18,320 --> 00:07:22,360 Speaker 2: success stories is legislation that was written and proposed by 106 00:07:22,400 --> 00:07:27,880 Speaker 2: the American fuel and petrochemical manufacturers and has criminalized pipeline 107 00:07:27,880 --> 00:07:34,040 Speaker 2: protest in about half of the states. Before Powell hit 108 00:07:34,080 --> 00:07:37,800 Speaker 2: the Supreme Court, the court had never taken up a corporate. 109 00:07:37,480 --> 00:07:38,840 Speaker 7: Free speech case. 110 00:07:39,840 --> 00:07:44,000 Speaker 2: It had affirmed various other constitutional rights of corporations, but 111 00:07:44,280 --> 00:07:49,720 Speaker 2: not First Amendment rights. Then, in nineteen seventy five, the 112 00:07:49,800 --> 00:07:54,080 Speaker 2: Court took up a campaign finance case called Buckley v. Valeo. 113 00:07:54,960 --> 00:07:58,800 Speaker 2: It focused on the Federal Election Campaigns Act, which had 114 00:07:58,840 --> 00:08:02,600 Speaker 2: been updated in the way of Watergate to tighten restrictions 115 00:08:02,640 --> 00:08:07,080 Speaker 2: on political contributions. At issue is whether it had gone 116 00:08:07,400 --> 00:08:10,720 Speaker 2: too far, and in Buckley v. Valeo, the Court decided 117 00:08:10,760 --> 00:08:14,560 Speaker 2: that yeah, it had. I called up Ben Foyer, chairman 118 00:08:14,640 --> 00:08:18,760 Speaker 2: of the Complex Appellate Litigation Group, years ago, to explain 119 00:08:18,800 --> 00:08:21,840 Speaker 2: the implications of Buckley v. Valeo to me, and his 120 00:08:22,040 --> 00:08:25,760 Speaker 2: is still the most straightforward explanation I've found. 121 00:08:26,560 --> 00:08:29,800 Speaker 8: The Street Court said, look, we're going to allow the 122 00:08:29,800 --> 00:08:35,680 Speaker 8: government to regulate when a person can contribute to a candidate, 123 00:08:36,400 --> 00:08:38,760 Speaker 8: because that looks like there might be corruption. We don't 124 00:08:38,760 --> 00:08:41,720 Speaker 8: want anybody with money, whether it's a person of corporation, 125 00:08:41,880 --> 00:08:45,880 Speaker 8: anybody from just throwing money, get in a breakcase, getting 126 00:08:45,920 --> 00:08:52,120 Speaker 8: into a candidate saying here, go go do stuff, because 127 00:08:52,120 --> 00:08:53,920 Speaker 8: it gets really close to a broad right. We don't 128 00:08:53,920 --> 00:08:56,400 Speaker 8: want that. With the other idea, the idea that we 129 00:08:56,640 --> 00:09:00,839 Speaker 8: the government can limit whether somebody spends money that they have. 130 00:09:03,360 --> 00:09:04,400 Speaker 8: That's what I heard you. 131 00:09:06,960 --> 00:09:10,239 Speaker 2: So the court decided to keep the limits on individual 132 00:09:10,280 --> 00:09:16,800 Speaker 2: contributions to campaigns, but to remove regulations on campaign expenditures. 133 00:09:17,760 --> 00:09:21,079 Speaker 2: The law had limited both because even if you limit 134 00:09:21,160 --> 00:09:24,400 Speaker 2: the amount anyone person can give, you can't really do 135 00:09:24,520 --> 00:09:27,400 Speaker 2: anything about the fact that some people are friends with 136 00:09:27,480 --> 00:09:31,480 Speaker 2: a lot of billionaires and some people are not. The 137 00:09:31,520 --> 00:09:35,439 Speaker 2: idea was to enforce some sort of equality between campaigns, 138 00:09:35,800 --> 00:09:39,080 Speaker 2: so that a candidate that had, for example, lots of 139 00:09:39,200 --> 00:09:43,040 Speaker 2: corporate backers wouldn't be able to drown out a candidate 140 00:09:43,120 --> 00:09:48,440 Speaker 2: that only had grassroots support. If you've seen exactly that 141 00:09:48,760 --> 00:09:53,360 Speaker 2: happening over the past couple of decades. This case is why. 142 00:09:54,440 --> 00:09:58,600 Speaker 2: In its ruling on Buckley, the Supreme Court removed spending limits. 143 00:09:58,800 --> 00:10:02,839 Speaker 2: It said that while limits contributions were needed to tamp 144 00:10:02,880 --> 00:10:05,719 Speaker 2: down on corruption, or at least the appearance of it, 145 00:10:06,400 --> 00:10:10,599 Speaker 2: a lot, regulating how much a campaign spent on messaging 146 00:10:11,000 --> 00:10:15,840 Speaker 2: felt like a direct infringement on free speech rights. It 147 00:10:15,920 --> 00:10:19,120 Speaker 2: was the first time the Court had equated spending money 148 00:10:19,320 --> 00:10:22,320 Speaker 2: with free speech, because. 149 00:10:21,960 --> 00:10:25,680 Speaker 8: That isn't getting money in a briefcase to a candidate that's, Hey, 150 00:10:26,120 --> 00:10:28,480 Speaker 8: I've got some money and I want to use it 151 00:10:28,520 --> 00:10:31,800 Speaker 8: to spread my idea. That's what free speech is all about. 152 00:10:31,960 --> 00:10:36,040 Speaker 8: If there's any area of speech where we want people 153 00:10:36,160 --> 00:10:42,079 Speaker 8: to be able to speak freely without government regulation, it's 154 00:10:42,120 --> 00:10:44,640 Speaker 8: got to be political speech because that's where people are 155 00:10:44,640 --> 00:10:47,000 Speaker 8: sharing ideas about how it kind of it should be run. 156 00:10:48,080 --> 00:10:52,560 Speaker 2: Still, the Buckley v. Vallejo ruling kept regulations in place 157 00:10:52,800 --> 00:10:57,960 Speaker 2: that prevented corporations from spending directly from their corporate coffers 158 00:10:58,040 --> 00:11:01,840 Speaker 2: to support a candidate. They were allowed only to spend 159 00:11:01,880 --> 00:11:06,120 Speaker 2: through contributions to a political action committee, a pack, or 160 00:11:06,160 --> 00:11:11,000 Speaker 2: through a separate fund created solely for political contributions. At 161 00:11:11,040 --> 00:11:13,559 Speaker 2: the time, the idea was to limit not only companies, 162 00:11:13,600 --> 00:11:19,480 Speaker 2: but also unions from overwhelmingly tipping elections. Both had big 163 00:11:19,559 --> 00:11:22,720 Speaker 2: cash reserves in their treasuries, and this kept them from 164 00:11:22,800 --> 00:11:26,680 Speaker 2: using the infinite money cheat when pursuing their political goals. 165 00:11:27,520 --> 00:11:30,839 Speaker 2: Buckley was focused on federal election law, so it only 166 00:11:30,920 --> 00:11:36,160 Speaker 2: limited spending on national political candidates. Two years later, Powell 167 00:11:36,240 --> 00:11:40,720 Speaker 2: spearheaded the opinion on Ballotti, which got into political issue 168 00:11:40,760 --> 00:11:46,839 Speaker 2: advertising and state level restrictions on political spending. At the 169 00:11:46,840 --> 00:11:52,000 Speaker 2: federal level, citizens don't vote on particular policies the people 170 00:11:52,040 --> 00:11:55,760 Speaker 2: we've elected to handle those things due, But at the 171 00:11:55,760 --> 00:11:59,679 Speaker 2: state level, voters have more say about both regulation and 172 00:11:59,720 --> 00:12:03,959 Speaker 2: how the state spends its budget. Powell's majority opinion in 173 00:12:04,040 --> 00:12:08,480 Speaker 2: Boloti declared it unconstitutional for a state to limit corporate 174 00:12:08,520 --> 00:12:13,880 Speaker 2: campaigning on a particular political issue or on a state referendum. 175 00:12:14,760 --> 00:12:17,679 Speaker 2: They still couldn't spend directly from their corporate bank accounts 176 00:12:17,920 --> 00:12:21,680 Speaker 2: or directly fund a particular candidate, but whatever money they 177 00:12:21,679 --> 00:12:25,280 Speaker 2: could raise in a pack or coalition, they could spend 178 00:12:25,320 --> 00:12:28,440 Speaker 2: as much as they wanted on trying to pass or 179 00:12:28,480 --> 00:12:33,880 Speaker 2: block a particular policy. If Buckley cracked the door open 180 00:12:34,040 --> 00:12:39,000 Speaker 2: for corporate free speech, Ballotti kicked it down. Here's Robert 181 00:12:39,120 --> 00:12:41,079 Speaker 2: Kerr again on Bolotti's impact. 182 00:12:41,720 --> 00:12:44,640 Speaker 4: It does open up the public square to the corporate 183 00:12:44,720 --> 00:12:46,800 Speaker 4: voice more directly than ever before. 184 00:12:47,400 --> 00:12:50,240 Speaker 2: Today, we're going to dig into what exactly the Bolotti 185 00:12:50,360 --> 00:12:54,000 Speaker 2: decision set in motion. We're going to look at Mobile's 186 00:12:54,120 --> 00:12:57,400 Speaker 2: continued work on corporate free speech through the eighties and 187 00:12:57,480 --> 00:13:00,440 Speaker 2: nineties and how all of it connects back up to 188 00:13:00,480 --> 00:13:03,880 Speaker 2: the arguments that oil companies are making about climate change 189 00:13:03,920 --> 00:13:04,400 Speaker 2: in court. 190 00:13:04,600 --> 00:13:05,000 Speaker 7: Today. 191 00:13:05,480 --> 00:13:09,760 Speaker 2: I'm Ami Westervel and this is Herb, a drilled mini series. 192 00:13:10,320 --> 00:13:21,200 Speaker 7: Stay with us. 193 00:13:21,840 --> 00:13:25,080 Speaker 2: In the wake of Blotti over at Mobile Oil, Herb 194 00:13:25,160 --> 00:13:29,479 Speaker 2: Schmertz and Rally Warner continued to expand their issue advertising 195 00:13:29,520 --> 00:13:34,120 Speaker 2: program and to advocate for the protection of corporate free speech. 196 00:13:34,720 --> 00:13:39,199 Speaker 2: In nineteen eighty one, Schmertz reported that Mobile's advertorials were 197 00:13:39,240 --> 00:13:44,760 Speaker 2: running weekly in fourteen newspapers across the country and one magazine, 198 00:13:44,920 --> 00:13:49,360 Speaker 2: The Economist. Their more casual observations column, on the other hand, 199 00:13:49,480 --> 00:13:52,719 Speaker 2: was running in more than five hundred newspapers, reaching more 200 00:13:52,760 --> 00:13:56,880 Speaker 2: than forty million households per year. Surveys the company had 201 00:13:56,920 --> 00:14:00,840 Speaker 2: conducted since starting its program in nineteen seven showed that 202 00:14:00,880 --> 00:14:03,960 Speaker 2: by nineteen seventy six, just a few years into it, 203 00:14:04,040 --> 00:14:07,520 Speaker 2: the public trusted Mobile's take on energy issues more than 204 00:14:07,600 --> 00:14:14,360 Speaker 2: consumer action groups or environmentalists. But that wasn't the end 205 00:14:14,480 --> 00:14:17,800 Speaker 2: of the free speech battle. Mobile continued to look for 206 00:14:17,880 --> 00:14:21,040 Speaker 2: ways to shape the legal foundation for corporate. 207 00:14:20,680 --> 00:14:22,160 Speaker 7: Free speech too. 208 00:14:22,480 --> 00:14:26,120 Speaker 2: They submitted amicist briefs in related cases whenever they could. 209 00:14:27,160 --> 00:14:30,880 Speaker 2: Mobile had not filed a brief in Ballotti, opting instead 210 00:14:30,920 --> 00:14:35,000 Speaker 2: to enthusiastically cheer the case and the ultimate ruling and 211 00:14:35,200 --> 00:14:38,520 Speaker 2: take a little credit for its own role in being 212 00:14:38,560 --> 00:14:41,840 Speaker 2: the vanguard of the corporate free speech movement that got 213 00:14:41,880 --> 00:14:45,840 Speaker 2: that case going. In subsequent cases, the company got more 214 00:14:45,920 --> 00:14:50,760 Speaker 2: directly involved. In one of his books about corporate free speech, 215 00:14:50,880 --> 00:14:53,560 Speaker 2: Robert Kerr writes that quote, over the course of the 216 00:14:53,640 --> 00:14:58,080 Speaker 2: nineteen seventies, Mobile contributed more than any other player to 217 00:14:58,160 --> 00:15:02,920 Speaker 2: the construction of an ideology of corporate citizenship. 218 00:15:02,600 --> 00:15:05,640 Speaker 4: Corporate lawyers because there are so many of them and 219 00:15:05,720 --> 00:15:09,240 Speaker 4: they have limitless funding. Really, they will keep coming back 220 00:15:09,280 --> 00:15:12,320 Speaker 4: with any We talk about like a press and is 221 00:15:12,400 --> 00:15:14,720 Speaker 4: like a door being opened by even just a crack. 222 00:15:15,280 --> 00:15:20,400 Speaker 4: Then anyone who has the resources can keep coming back 223 00:15:20,440 --> 00:15:22,360 Speaker 4: and pushing on the door, trying to push it open 224 00:15:22,400 --> 00:15:25,160 Speaker 4: a little bit farther in more creative ways. 225 00:15:26,080 --> 00:15:29,320 Speaker 2: Throughout the nineteen eighties and nineties, the company continued to 226 00:15:29,480 --> 00:15:33,400 Speaker 2: reinforce that ideology, both in the press and in the courts. 227 00:15:33,520 --> 00:15:36,560 Speaker 2: It filed a brief in support of consolidated Edison in 228 00:15:36,600 --> 00:15:39,000 Speaker 2: a case that was decided in nineteen eighty. 229 00:15:39,240 --> 00:15:40,000 Speaker 7: Edison had been. 230 00:15:40,000 --> 00:15:44,120 Speaker 2: Slipping political brochures into the envelope it sent its bills 231 00:15:44,160 --> 00:15:46,240 Speaker 2: out in and the state of New York told them 232 00:15:46,280 --> 00:15:50,200 Speaker 2: to cut it out. Mobile argued that the ban constituted 233 00:15:50,240 --> 00:15:53,240 Speaker 2: a quote full frontal assault on the core of the 234 00:15:53,280 --> 00:15:57,880 Speaker 2: First Amendment. The Edison Electric Institute and the Chamber of Commerce, 235 00:15:57,960 --> 00:16:02,040 Speaker 2: among various other business groups, echoed that argument in their briefs, 236 00:16:02,320 --> 00:16:05,440 Speaker 2: and the Supreme Court sided with them and the utility. 237 00:16:06,280 --> 00:16:09,480 Speaker 2: In September nineteen eighty, the company used its weekly New 238 00:16:09,560 --> 00:16:12,040 Speaker 2: York time slot to thank the paper for giving it 239 00:16:12,080 --> 00:16:16,320 Speaker 2: a platform, which Mobil described as quote a great contribution 240 00:16:16,520 --> 00:16:20,360 Speaker 2: to the free market of ideas. Mobile even considered buying 241 00:16:20,360 --> 00:16:22,920 Speaker 2: its own paper. On the heels of the Bollati decision, 242 00:16:23,040 --> 00:16:26,840 Speaker 2: Looking into purchasing both the Denver Post and the Oakland Tribune. 243 00:16:27,080 --> 00:16:31,160 Speaker 2: Despite the various cases that followed in Bolotti's footsteps overturning 244 00:16:31,240 --> 00:16:34,880 Speaker 2: state bans on different types of corporate campaigning, the Court 245 00:16:34,960 --> 00:16:40,040 Speaker 2: showed little interest in expanding corporate speech any further. Multiple 246 00:16:40,120 --> 00:16:42,360 Speaker 2: cases throughout the eighties try to take aim at the 247 00:16:42,360 --> 00:16:46,600 Speaker 2: federal election commission but the Court held firm. 248 00:16:46,240 --> 00:16:50,080 Speaker 4: Three at the time very big Supreme Court cases, and 249 00:16:50,120 --> 00:16:53,560 Speaker 4: i'll call it them the other people's money cases. They 250 00:16:53,560 --> 00:16:56,600 Speaker 4: were all against the federal election commissioners. That's where the 251 00:16:56,760 --> 00:17:02,200 Speaker 4: federal regulations were that they were challenging plaintiffs bringing different 252 00:17:02,320 --> 00:17:08,760 Speaker 4: questions about federal campaign finance regulations that applied to corporate spending. 253 00:17:09,400 --> 00:17:13,360 Speaker 4: And in every case they were wanting to spend from 254 00:17:13,400 --> 00:17:17,600 Speaker 4: their corporate treasuries. In every case, the court's reasoning and 255 00:17:17,640 --> 00:17:22,800 Speaker 4: then they're ruling served to say, yes, human beings can 256 00:17:22,840 --> 00:17:27,040 Speaker 4: spend all they want on this, and corporate packs can 257 00:17:27,040 --> 00:17:31,159 Speaker 4: spend basically all they want, and corporations can spend what 258 00:17:31,200 --> 00:17:36,640 Speaker 4: they want when it's an initiative, a referenda. But if 259 00:17:36,720 --> 00:17:39,480 Speaker 4: there are human candidates involved, if it's a you know, 260 00:17:39,520 --> 00:17:43,919 Speaker 4: a political campaign, who can be potentially corrupted by this 261 00:17:44,040 --> 00:17:47,240 Speaker 4: by the money, and if the money is coming from 262 00:17:47,280 --> 00:17:50,920 Speaker 4: the treasury, that's the stockholder's money. Those two things they 263 00:17:51,000 --> 00:17:51,880 Speaker 4: walled off. 264 00:17:53,840 --> 00:17:59,560 Speaker 2: Right, because human beings pushing for particular issues are incorruptible. 265 00:18:00,680 --> 00:18:01,080 Speaker 7: Okay. 266 00:18:02,040 --> 00:18:05,800 Speaker 2: Anyway, the court kept ruling along these lines over and 267 00:18:05,840 --> 00:18:10,440 Speaker 2: over again, and then in two thousand and three, Aixon Mobile, 268 00:18:10,840 --> 00:18:15,320 Speaker 2: the company formed after Axon acquired Mobile in nineteen ninety nine, 269 00:18:16,080 --> 00:18:18,919 Speaker 2: picked up the corporate free speech torch and filed a 270 00:18:18,920 --> 00:18:21,879 Speaker 2: brief in a case that had nothing to do with 271 00:18:22,000 --> 00:18:26,840 Speaker 2: the company or its industry, but represented a potentially big 272 00:18:26,880 --> 00:18:30,120 Speaker 2: step forward for the corporate free speech movement. 273 00:18:31,000 --> 00:18:34,800 Speaker 1: A contractor miking clothes for sportswear giant Nike has been 274 00:18:34,920 --> 00:18:38,920 Speaker 1: court using forced labor in Malaysia. Labor activists are accusing 275 00:18:39,000 --> 00:18:44,480 Speaker 1: sportswear manufacturer Nike of encouraging low wages and inhumane conditions 276 00:18:44,480 --> 00:18:46,440 Speaker 1: at its factories in Indonesia. 277 00:18:46,560 --> 00:18:50,040 Speaker 9: The Nike Code of Conduct stated we they maintained the 278 00:18:50,080 --> 00:18:54,119 Speaker 9: highest standards of worker safety and health and compensation and 279 00:18:54,280 --> 00:18:57,000 Speaker 9: used that really as to market their products. And so 280 00:18:57,240 --> 00:19:00,000 Speaker 9: I felt very upset when I realized that a lot, 281 00:19:00,000 --> 00:19:02,720 Speaker 9: a lot of the representations they were making might not 282 00:19:02,800 --> 00:19:04,960 Speaker 9: be true, and that a lot of people in California 283 00:19:05,640 --> 00:19:11,879 Speaker 9: were buying their products under false assumptions, with misrepresentations. And 284 00:19:11,920 --> 00:19:14,879 Speaker 9: so I called an attorney and said, I want to 285 00:19:14,920 --> 00:19:15,720 Speaker 9: do something about this. 286 00:19:15,840 --> 00:19:16,439 Speaker 4: What can we do? 287 00:19:16,760 --> 00:19:18,000 Speaker 9: And that's how it got started. 288 00:19:19,040 --> 00:19:21,960 Speaker 10: The Supreme Court heard argument what some say could be 289 00:19:22,000 --> 00:19:25,240 Speaker 10: one of the most important free speech cases in years. 290 00:19:25,640 --> 00:19:28,000 Speaker 10: At issue is the extent to which the speech of 291 00:19:28,040 --> 00:19:31,480 Speaker 10: corporations is protected by the First Amendment to the Constitution. 292 00:19:32,440 --> 00:19:35,320 Speaker 2: If like me, you were a college kid in the nineties, 293 00:19:35,400 --> 00:19:39,320 Speaker 2: you might remember the Nike sweatshop controversy. Several news reports 294 00:19:39,359 --> 00:19:43,440 Speaker 2: accused Nike of using sweatshop believer. Loads of journalists went 295 00:19:43,520 --> 00:19:46,960 Speaker 2: undercover and factories and showed the world the human cost 296 00:19:47,040 --> 00:19:51,120 Speaker 2: of their expensive sportswear. In response, Nike pointed to its 297 00:19:51,119 --> 00:19:55,840 Speaker 2: commitment to transparency, sharing factory locations with independent third parties 298 00:19:55,840 --> 00:19:59,359 Speaker 2: for audits, and its code of conduct, which prohibited the 299 00:19:59,400 --> 00:20:02,200 Speaker 2: sorts of things that were showing up in these news reports. 300 00:20:02,960 --> 00:20:07,680 Speaker 2: Mark Kaski, a California activist called bullshit, ensued the company 301 00:20:07,760 --> 00:20:12,800 Speaker 2: under his state's false advertising laws. The Kaski Versus Nike 302 00:20:12,920 --> 00:20:15,480 Speaker 2: case and ex On Mobiles brief in it are another 303 00:20:15,520 --> 00:20:18,680 Speaker 2: link in the chain between Mobile's work on corporate personhood 304 00:20:18,840 --> 00:20:22,439 Speaker 2: in the seventies and what oil companies are arguing about 305 00:20:22,440 --> 00:20:27,360 Speaker 2: climate change today. Nike argued that its statements about its 306 00:20:27,440 --> 00:20:32,040 Speaker 2: labor practices were not commercial speech subject to fraud laws, 307 00:20:32,560 --> 00:20:36,679 Speaker 2: but rather speech on issues of public importance, something the 308 00:20:36,720 --> 00:20:42,000 Speaker 2: courts often call petitioning speech. It's also called political speech, 309 00:20:42,440 --> 00:20:46,240 Speaker 2: and it's covered by the First Amendment. Here is Nike's 310 00:20:46,280 --> 00:20:49,840 Speaker 2: lawyer in that case, Lawrence Tribe, explaining to the Supreme 311 00:20:49,880 --> 00:20:54,240 Speaker 2: Court justices that Nike was not intentionally misleading the public, 312 00:20:54,520 --> 00:20:56,720 Speaker 2: it was just defending itself. 313 00:20:57,640 --> 00:20:59,920 Speaker 5: In the mid nineteen nineties, there was, of course, an 314 00:21:00,080 --> 00:21:04,880 Speaker 5: tense debate on the pros and cons of globalization and 315 00:21:05,080 --> 00:21:08,639 Speaker 5: of the impact of companies like Nike on workers in 316 00:21:08,680 --> 00:21:09,479 Speaker 5: the Third World. 317 00:21:09,720 --> 00:21:09,840 Speaker 6: Now. 318 00:21:09,880 --> 00:21:14,280 Speaker 5: The critics, many from pro labor groups, denounced Nike as 319 00:21:14,359 --> 00:21:17,679 Speaker 5: the chief exemplar of the evils of globalization, arguing that 320 00:21:17,800 --> 00:21:21,120 Speaker 5: Nike was simply shifting production to places where it could 321 00:21:21,200 --> 00:21:26,080 Speaker 5: exploit the workforce and act in ways that were illegal 322 00:21:26,080 --> 00:21:29,879 Speaker 5: and immoral, and the critics took much of their documentation 323 00:21:29,960 --> 00:21:33,160 Speaker 5: from the media. Of course, Nike disagreed, using the same 324 00:21:33,720 --> 00:21:37,600 Speaker 5: media venues as the critics had used to document what 325 00:21:37,680 --> 00:21:41,880 Speaker 5: it thought were the connections between its presence and activities 326 00:21:42,280 --> 00:21:45,960 Speaker 5: in countries like South Korea Vietnam and the development of 327 00:21:46,000 --> 00:21:49,280 Speaker 5: technological expertise in those countries, as well as the expansion 328 00:21:49,320 --> 00:21:50,520 Speaker 5: of job opportunities. 329 00:21:51,320 --> 00:21:54,600 Speaker 2: Tribe also argued that what CASKI was asking of Nike, 330 00:21:55,280 --> 00:21:58,680 Speaker 2: that it should just take the l was too big 331 00:21:58,800 --> 00:21:59,399 Speaker 2: of an ask. 332 00:22:00,320 --> 00:22:04,840 Speaker 5: The relief that is available and was requested by mister 333 00:22:04,920 --> 00:22:08,840 Speaker 5: Caskey includes and I don't think we should forget the 334 00:22:08,840 --> 00:22:13,440 Speaker 5: importance of this. An adjudication that they found in is 335 00:22:13,480 --> 00:22:17,280 Speaker 5: guilty of an unlawful business practice, and in Nike's case, 336 00:22:17,359 --> 00:22:19,320 Speaker 5: that would be no small matter. I mean it would 337 00:22:19,359 --> 00:22:22,919 Speaker 5: be said, you're guilty of exploiting women and children in 338 00:22:22,960 --> 00:22:28,119 Speaker 5: the Third World, guilty as charged, and not being honest 339 00:22:28,160 --> 00:22:29,680 Speaker 5: about it a scarlet letter. 340 00:22:30,640 --> 00:22:33,760 Speaker 2: Also weighing in for Nike in this case was none 341 00:22:33,840 --> 00:22:38,520 Speaker 2: other than Ted Olsen. He's the lawyer we mentioned last episode, 342 00:22:38,680 --> 00:22:41,760 Speaker 2: the guy who argued and won the Citizens United case, 343 00:22:42,320 --> 00:22:45,920 Speaker 2: a partner at Gibson Dunn, the firm that represents Chevron 344 00:22:46,040 --> 00:22:49,960 Speaker 2: and various other oil and gas companies. Olsen is also 345 00:22:50,000 --> 00:22:53,560 Speaker 2: one of the founding fathers of the Federalist Society, known 346 00:22:53,640 --> 00:22:58,160 Speaker 2: for its influence over Republican judicial nominations. He was actually 347 00:22:58,240 --> 00:23:00,800 Speaker 2: Solicitor General of the United States at the time the 348 00:23:00,840 --> 00:23:03,960 Speaker 2: Caskei case came around, but was given special leave to 349 00:23:04,119 --> 00:23:07,879 Speaker 2: weigh in on this case. In the brief it filed 350 00:23:07,920 --> 00:23:10,720 Speaker 2: in the Nike case, Exon argued that Nike's speech and 351 00:23:10,760 --> 00:23:15,679 Speaker 2: speech by corporations on other matters of public concern merit 352 00:23:15,840 --> 00:23:20,320 Speaker 2: the quote highest level of First Amendment protection and is 353 00:23:20,520 --> 00:23:24,280 Speaker 2: entitled to the same breathing space as speech on matters 354 00:23:24,280 --> 00:23:28,000 Speaker 2: of public concern by other speakers. It then goes on 355 00:23:28,119 --> 00:23:32,760 Speaker 2: to specifically explain what kinds of issues they might be 356 00:23:32,920 --> 00:23:38,360 Speaker 2: talking about, including, and I'm quoting here, human rights abroad, 357 00:23:39,040 --> 00:23:46,040 Speaker 2: global climate change, and environmental effects of business operations. Remember 358 00:23:46,760 --> 00:23:50,280 Speaker 2: this was just a couple years after Exonmobile had published 359 00:23:50,280 --> 00:23:56,360 Speaker 2: ads in major national newspapers proclaiming climate science to be unsettled, 360 00:23:57,040 --> 00:24:00,399 Speaker 2: and then used that idea to successfully fight out against 361 00:24:00,440 --> 00:24:04,680 Speaker 2: the Kyoto Protocol, the first and still only binding climate 362 00:24:04,720 --> 00:24:08,840 Speaker 2: treaty ever signed by world leaders. A legal precedent that 363 00:24:08,960 --> 00:24:12,240 Speaker 2: let Axon say whatever it wanted about climate change would 364 00:24:12,280 --> 00:24:17,399 Speaker 2: have been very handy. Ultimately, the Supreme Court decided not 365 00:24:17,520 --> 00:24:20,920 Speaker 2: to weigh in on CASKEI at all. The Court kicked 366 00:24:20,920 --> 00:24:24,120 Speaker 2: it back to the state courts and Nike settled out 367 00:24:24,119 --> 00:24:28,320 Speaker 2: of court. But the arguments not just from Nike, but 368 00:24:28,359 --> 00:24:32,280 Speaker 2: from Exxon and its fellow travelers like the National Association 369 00:24:32,359 --> 00:24:36,920 Speaker 2: of Manufacturers and the Pacific Legal Foundation, and of course 370 00:24:37,040 --> 00:24:38,520 Speaker 2: Olsen would. 371 00:24:38,240 --> 00:24:39,240 Speaker 7: Come back again. 372 00:24:42,200 --> 00:24:44,760 Speaker 2: Just six years later, Olson would stand before the Court 373 00:24:44,800 --> 00:24:47,960 Speaker 2: and make another free speech argument, this time taking aim 374 00:24:48,119 --> 00:24:52,359 Speaker 2: at the Justice's long held rules on what corporations and 375 00:24:52,480 --> 00:24:57,159 Speaker 2: packs could spend money on. In their ruling and Citizens United, 376 00:24:57,240 --> 00:25:02,439 Speaker 2: the Court overturned those precedents two main guardrails that Kerr 377 00:25:02,480 --> 00:25:03,320 Speaker 2: mentioned before. 378 00:25:03,800 --> 00:25:08,080 Speaker 11: Mister Olson, are you taking the position that there is 379 00:25:08,160 --> 00:25:12,720 Speaker 11: no difference in the First Amendment rights of an individual 380 00:25:13,760 --> 00:25:15,840 Speaker 11: full purposes of campaign finance? 381 00:25:16,080 --> 00:25:18,800 Speaker 3: What the Court has said in the First Amendment context 382 00:25:19,400 --> 00:25:23,800 Speaker 3: over and over again is that corporations are persons entitled 383 00:25:23,800 --> 00:25:25,560 Speaker 3: to protection under the First Amendment. 384 00:25:26,000 --> 00:25:32,040 Speaker 2: In his majority opinion, Justice Kennedy relied almost exclusively on Ballotti, 385 00:25:32,720 --> 00:25:36,160 Speaker 2: but he gave it a new spin. Here's Robert Kerr again. 386 00:25:37,000 --> 00:25:41,120 Speaker 4: In Justice Kennedy's opinion in Citizens United, he talks about 387 00:25:41,160 --> 00:25:45,440 Speaker 4: Bellotti a lot. He cites it twenty four times. Is 388 00:25:45,480 --> 00:25:48,800 Speaker 4: almost his entire argument is built on one case. And 389 00:25:48,880 --> 00:25:52,720 Speaker 4: after he talks about Bolotti, then he says, and there 390 00:25:52,840 --> 00:25:56,840 Speaker 4: the law stood until Austin, So he's referring from nineteen 391 00:25:56,880 --> 00:26:00,840 Speaker 4: seventy eight to nineteen ninety. He says nothing happened between there. 392 00:26:02,720 --> 00:26:06,159 Speaker 2: But of course something did happen during those years. And 393 00:26:06,200 --> 00:26:09,200 Speaker 2: that's something was that the Supreme Court justices came back 394 00:26:09,280 --> 00:26:13,719 Speaker 2: again and again to reaffirm those two rules that Kerr 395 00:26:13,720 --> 00:26:17,560 Speaker 2: mentioned earlier. Companies could not spend money to elect a 396 00:26:17,600 --> 00:26:21,120 Speaker 2: particular person to office, and they couldn't spend money from 397 00:26:21,119 --> 00:26:26,600 Speaker 2: their corporate coffers for anything political period. Kennedy opted to 398 00:26:26,720 --> 00:26:28,080 Speaker 2: ignore those precedents. 399 00:26:30,000 --> 00:26:32,879 Speaker 4: Those cases, they're there. Anyone could look at the record. 400 00:26:32,960 --> 00:26:36,120 Speaker 4: They were huge at the time. And he does later 401 00:26:36,240 --> 00:26:38,360 Speaker 4: give a little bit of lip service to those cases, 402 00:26:38,400 --> 00:26:41,400 Speaker 4: but a very brief, very dismissive, as if they don't 403 00:26:41,400 --> 00:26:44,320 Speaker 4: matter at all, and they really did matter, despite all 404 00:26:44,520 --> 00:26:49,879 Speaker 4: the case law saying what prior justices believed ballot he met, 405 00:26:50,119 --> 00:26:55,480 Speaker 4: Kennedy just completely redefines it, and it basically says that 406 00:26:55,520 --> 00:27:00,840 Speaker 4: from now on corporations can spend directly from their treasuries. 407 00:27:02,000 --> 00:27:05,840 Speaker 2: That happened in twenty ten. Just a few years later, 408 00:27:05,960 --> 00:27:09,600 Speaker 2: Olsen's firm, Gibson Dunn would circle back to its other 409 00:27:09,680 --> 00:27:12,400 Speaker 2: big free speech argument, the one it had tried out 410 00:27:12,400 --> 00:27:17,159 Speaker 2: in the Nike case about corporate communications being protected political speech, 411 00:27:17,359 --> 00:27:20,760 Speaker 2: and roll it out again, this time on behalf of 412 00:27:21,000 --> 00:27:24,480 Speaker 2: oil companies, arguing that everything they've ever said about climate 413 00:27:24,560 --> 00:27:28,159 Speaker 2: change was protected speech, even if they knew they weren't 414 00:27:28,280 --> 00:27:34,359 Speaker 2: telling the whole truth. Ted Boutrose, another lawyer named ted 415 00:27:34,400 --> 00:27:39,600 Speaker 2: At Gibson Done began arguing in various climate liability cases 416 00:27:39,840 --> 00:27:42,760 Speaker 2: that everything oil companies have said about climate change was 417 00:27:42,800 --> 00:27:45,960 Speaker 2: in the interest of shaping policy, and that makes it 418 00:27:46,080 --> 00:27:49,520 Speaker 2: petitioning speech protected by the First. 419 00:27:49,320 --> 00:27:51,919 Speaker 7: Amendment from accusations. 420 00:27:51,160 --> 00:27:54,840 Speaker 2: Of fraud, even if what they said didn't reflect what 421 00:27:54,880 --> 00:27:58,880 Speaker 2: they knew about the impacts fossil fuels were having on 422 00:27:58,920 --> 00:28:01,720 Speaker 2: the climate. That's our story. 423 00:28:02,160 --> 00:28:02,960 Speaker 7: Next Time. 424 00:28:05,960 --> 00:28:09,879 Speaker 2: Drilled is an original Critical Frequency production. This season is 425 00:28:09,920 --> 00:28:13,439 Speaker 2: produced and sound designed by Martin Zaltz Austwick. Our sound 426 00:28:13,480 --> 00:28:18,359 Speaker 2: engineer is Peter Duff. Additional reporting by Julia Manipela, fact 427 00:28:18,400 --> 00:28:22,600 Speaker 2: checking by Woodan Yan. Our first Amendment. Attorney is James Wheaton. 428 00:28:23,160 --> 00:28:27,000 Speaker 2: Marketing is handled by Maggie Taylor. Our artwork is by 429 00:28:27,000 --> 00:28:30,240 Speaker 2: Matt Fleming. The show is written and reported by me 430 00:28:30,480 --> 00:28:34,879 Speaker 2: Amy Westervelt. 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