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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
www.mjoy.org
Check out Miriam’s new blog, The Big Questions: The Path to
Albany’s First Comprehensive Plan, at: http://metroland.typepad.com/the_big_questions/
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