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Theory Bites Back


There’s always one, right? You know the activist I mean. The one who derails a delicate conversation with a legislator about Medicaid funding by waxing insistent, at length, about national health care. The one who gets up at an antiwar rally and rails against capitalism. The one whose eyes are always set a little higher, who seems more interested in the theory of revolution than real change that can help real people now.

I’ve ground my teeth at that person frequently. I’ve also been that person from time to time. It’s a delicate balance, deciding what your short-term and long-term goals are and then how often you want to bring each of them up and where.

But it is worth remembering that some of the issues that seem the most abstract have very real, identifiable specific effects on us all the time. Take “corporate personhood,” a favorite hobby horse of corporate accountability and pro-democracy activists. It’s a phrase that never came up once in the public hearings on some rezoning bills before last week’s Albany Common Council meeting, but nevertheless it was hanging heavy over the whole discussion.

Here’s the background of a long sordid story that seems to have gone all but uncovered in the media: In 2002, Lamar Advertising applied for a permit to construct three billboards along I-90 in western Albany. Lamar says that the Common Council denied the permit because of an ordinance putting that area of the city off-limits for billboards that was passed after the permit application was made. The city disagrees, saying it was denied because they believed it would have violated an existing regulation by bringing the number of billboard faces in the city to more than 95.

Lamar sued. They lost at the state level. But then they filed a federal civil-rights case, alleging infringement of their free speech, due process and equal-protection rights.

Because the standard of proof is lower for fundamental rights (you only have to prove that your rights were violated, not that it was intentional), and because such cases carry with them treble punitive damages and lawyer’s fees, the city accepted a settlement. As Terrence Gorman, assistant corporation counsel assigned to the case, explained, the city just didn’t have $2.5 million to fork over if it lost. (Making it a $4 million risk to take, since the city would have to bond it.)

The settlement involves giving Lamar one location in the billboard-free zone, plus what the city says are the only two remaining sites in the rest of the city that meet both the city’s and the state Department of Transportation’s billboard regulations regarding distance from a highway and from each other, on Genesee Street and North Pearl Street in North Albany. The state requires billboards to only be constructed on land zoned commercial, and so these hearings were about a proposal to rezone those parcels.

Neighbors of the proposed billboards showed up to speak against it, bearing petitions with dozens of signatures. The lights would shine in their windows. It would change the residential character of the neighborhood. The kind of complaints that councilpeople generally like to at least make a show of taking seriously. Now, these sites are in fact just the kind of sites that body has said are OK for billboards. Not a cut-and-dry case in either direction. The thing is, it’s hard to feel like you’re able to decide on the merits when one choice would cost you $4 million you don’t have.

Gorman was clearly nervous to find the council not inclined to move perfunctorily ahead with the rezoning. The city is already past the deadline for complying with the court order, and it was clear he didn’t want the case to end up heading to trial.

At some point well into the conversation, Councilman Corey Ellis (Ward 3) shook his head as if trying to clear it and asked the million-dollar question: “They say we violated their civil rights?”

One can understand Gorman’s impatience with trying to explain this peculiarity of law under such circumstances, but it really is worth lingering over. Corporations are treated as persons under the law. In some ways this makes sense—it makes sense that corporations can own real estate or owe income tax. But by first extending to them basic protections under the Bill of Rights and then equating the spending of money with protected speech, and generally declining to treat them as what they are—artificial creations sanctioned by the government for specific purposes—the courts have created a monster.

Behemoths like Lamar, and like the cell-phone companies that have employed these tactics to force cell-tower location on unwilling locales, can afford to bring frivolous lawsuits, and they do, tossing out civil rights complaints like garlic—goes with everything. But since the stakes in civil rights cases are so high (remember, lawyers’ fees and treble damages), towns trying to protect the integrity of their law-abiding democratic process can’t afford to fight them. It’s a bullying tactic, and it sullies the precious and always under-attack First Amendment.

I don’t pretend to have the answers about how exactly rights should apply to corporations. It’s nuanced, and only a nuanced solution will do. But I do know these are questions that should come under serious consideration before too many more cities’ have their solvency on the line. Even if it seems theoretical.

—Miriam Axel-Lute

Check out Miriam’s new blog, The Big Questions: The Path to Albany’s First Comprehensive Plan, at:

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