In his book, Unequal Protection, Thom Hartman shows how corporations (specifically, railroads) used the 14th Amendment--which ostensibly guaranteed African Americans the same rights other citizens enjoyed--to enshrine the concept of corporate personhood in our legal system.
With the passage of the Fourteenth Amendment, the owners of the what were then America’s largest and most powerful corporations - the railroads - figured they’d finally found a way to reverse Paine’s logic and no longer have to answer to “we, the people.” They would claim that the corporation is a person. They would claim that for legal purposes, the certificate of incorporation declares the legal birth of a new person, who should therefore have the full protections the voters have under the Bill of Rights.
Acting on behalf of the railroad barons, attorneys for the railroads repeatedly filed suits against local and state governments that had passed laws regulating railroad corporations. They rebelled against restrictions, and most of all they rebelled against being taxed.
The main tool the railroad’s lawyers tried to use was the fact that corporations had historically been referred to under law not as “corporations” but as “artificial persons.” Based on this, they argued, corporations should be considered “persons” under the free-the-slaves Fourteenth Amendment and enjoy the protections of the constitution just like living, breathing, human persons.
It's an important lesson in history--but also an important lesson in Trojan Horses. That is, when you're passing legislation, you might want to think about the unintended consequences the most powerful entities in the State might make of that legislation.
Case in point is the reporter shield bill just passed 398-21 in the House. The bill gives several acceptable reasons why the government can force a reporter to reveal her sources in a criminal investigation (after exhausting all other means of learning the source and proving the public interest in disclosing the source outweighs the public interest in the free flow of information). Those reasons are:
(A) disclosure of the identity of such a source is necessary to prevent an act of terrorism against the United States or its allies or other significant and specified harm to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed--
(i) a trade secret, actionable under section 1831 or 1832 of title 18, United States Code;
(ii) individually identifiable health information, as such term is defined in section 1171(6) of the Social Security Act (42 U.S.C. 1320d(6)), actionable under Federal law; or
(iii) nonpublic personal information, as such term is defined in section 509(4) of the Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of any consumer actionable under Federal law;
(Side note: this only covers published stories; so if Scooter Libby leaks Valerie Wilson's identity to Judy Miller, intending for her to launder the leak via the NYT's front page, but Judy can't do so because the NYT has already been so discredited by Judy's reporting that she's on a short leash, then Judy has the right to protect Libby.)
Let's repeat that, shall we? The government can only--and can---force someone "engaged in journalism" to reveal her sources if:
- It is necessary to prevent an act of terrorism
- It is necessary to prevent imminent death
- The story has identified individually identifiable health information (such as my history with cancer)
- The story has identified non public personal information (such as my credit card transactions)
- The story identifies a trade secret
Do you see where this legislation may well be heading? Want to know about the finances of Enron? Trade secret--gotta out the source. Want to know about the lead in the toy you just bought your child? Trade secret--gotta out the source. Want to know about the deal AT&T signed to hand over your call data to the government? That's a trade secret too.
There are a whole lot of authoritarian Republicans who signed this bill, folks who have no love for freedom of speech (there's an interesting comparison--the yeahs on this bill and those who voted to condemn Move-On...). You might wonder what those Republicans--often good corporatists--want to get out of this bill.
There's a lot that's good about this bill (such as its application to those who are "engaged in journalism," which in a proper world would exclude Judy and her flack-buddies). But we ought to be asking where this exception for trade secrets is going to go. Are we willing to eliminate all whistleblower protection for corporate employees in exchange for a reporters' shield law?