Archive for the ‘Social Justice’ Category

James Cormie is a legal intern at Global Access to Medicine. He blogs on issues of trade, IP, and international law. He is originally from Edmonton, Alberta.

Dear Fellow Canadians:

Welcome to the Trans-Pacific Partnership (TPP) negotiations! Fresh off a bruising fight getting provisions that protect internet freedom and privacy into Canada’s copyright Bill C-11, I’m sure that you are exhausted with defending your rights. Take heart. With the TPP you will not have much of a say on laws or policies threatening your privacy, rights on the internet and access to affordable medicines. Instead, lobbyists from major American industries and some 600 “corporate trade advisors” have helped lay out some of what the Office of the United States Trade Representative (USTR) expects from you.

These are the same industries that forced major concessions on C-11’s approach to digital locks despite near-universal criticism. Hundreds of pages of new non-trade policy contained in the most sweeping “free trade agreement.”  The USTR proposes intellectual property provisions that cover dramatically more than copyright law. They touch a wide range of IP issues.  And you thought NAFTA was a pill? Sure, Big PhRMA used NAFTA to attack our drug formulary system and all of those compulsory licenses for affordable meds. But back then, our government drew a line.  Despite some considerable hysteria from the U.S. drug industry giants, did not give away all of our policy space. This time, however, TPP gives PM Harper a way to write all of us a real prescription for high drug prices and cement his view of Canada as an extended playground for corporate America.

Here are some of the highlights of the US proposed IP chapter:

• Expand patent evergreening and create new pharmaceutical monopolies, raising medicine costs
• Dramatically increase the life of a copyright term from 50 years in most cases under C-11 to 95 years
• Increase penalties for circumvention and reduce the exceptions for individuals
• Establish an American-style notice-and-take down system for online copyright infringement

This seems like a lot. If you were worried, however, that we had some duty to at least read the proposals for the law and voice our democratic concern—fear not. Negotiators act in secret. The only glimpse of the actual agreement so far has come from leaked copies of the text from the IP, Investment, and other chapters. Remember in the good old days of ACTA when the University of Ottawa filed an access to information request but received a blacked out document with only the title? Expect similar treatment during TPP negotiations. While lobbyists and corporate liaisons are granted electronic access to the agreement, your parliamentary representative might have to walk down to the Department of Foreign Affairs and International Trade to speak personally with The Honourable David Johnston, Minister of International Trade.

Moreover, if you are distressed by the fact that our respectable Department of Trade will have lots of work reviewing all the work done so far once Canada’s negotiators get hold of these secret drafts, you will be relieved to hear that Canada has a lesser role in the negotiations. By coming late to the table, Canada has achieved a 2nd tier position. This status requires Canada to agree to all the settled chapters, which they have not even read, and Canada cannot veto current provisions. Thus, not even lobbyists or the Trade Minister need concern themselves with settled provisions. The TPP negotiations shut individual citizens and even members of parliament and ministers out of the process.

The public response to C-11 proved that civil engagement has made a difference on intellectual property issues in Canada. The people, frustrated, fearful, and bedraggled, woke up to the oppressive measures of industry groups and fought hard. But this is far from the end. In upcoming years, we might still witness the implementation of a multinational corporations’ wish list, which seeks to criminalize copyright infringement, implement ACTA-plus provisions, and restrict Canadians’ access to affordable medicines. Through the TPP, USTR seeks to achieve all these goals and more—without too much of a voice from us. Will we allow American industry to dictate to the Canadian people our rights – or stand up and demand that Canada step down from these negotiations?

The Supreme Court’s 2010 decision to open the floodgates to unlimited corporate expenditures in elections has recently been thrust back into the spotlight by the international Occupy movement. And rightly so, given that the Americans creating a “church of dissent” in urban public spaces are echoing popular discontent with a broken political process– one where the voices of “We the People” seem to be drowned out by powerful special interests all too often.

Thus, it’s fitting that, as they’ve cast a spotlight on a ruling that is widely reviled by Americans across the political spectrum, Occupy participants have inadvertently highlighted another sad result of Citizens United v. Federal Election Commission.  As Professor David Kairys observed the day the ruling was handed down (full disclosure: I conducted research on Citizens United under Professor Kairys’ supervision in 2010), corporations’ attempts to influence elections through unlimited spending are now granted a heightened level of constitutional protection compared to, say, everyday citizens:

Political cartoon by Cory M. Grenier, via Flickr.

“Taken as a whole, the conservative court’s First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters.”

Indeed, the Supreme Court’s interpretation of the First Amendment in recent decades specifically limits Occupy encampments’ potential recourse against government restrictions. As Christopher Dunn of the New York Civil Liberties Union explained, today’s gatherings are potentially limited by the Court’s 1983 decision in Clark v. Community for Creative Non-Violence (“CCNV”).

CCNV upheld the National Park Service’s decision to prevent advocates for the homeless from sleeping in Lafayette Park (across the street from the White House) and on the National Mall, and limit them to daytime protest. Camping out in the park was meant to be a central part of the activists’ critical message about Reagan administration policies. Nevertheless, the government’s valid interests in public safety and the “aesthetic value” of national parkland for tourists were given broad deference by the Court (too much deference according to the late Justice Thurgood Marshall’s dissent).

CCNV doesn’t give state and local officials carte blanche to evict today’s encampments, of course; as Dahlia Lithwick points out, it is an open legal question “whether the regulations being used to shut down protest are bogus attempts to use neutral-sounding rules to suppress speech.”  And as Dunn notes, he was able to successfully represent advocates in New York who wanted to sleep on the sidewalk in front of Gracie Mansion to protest then Mayor Giuliani’s policies.

Still, when you look at CCNV alongside other court rulings over the past few decades that have limited the scope and form of individual free speech rights, the clear reality is that the First Amendment is far from a surefire defense against government regulation.

In sharp contrast, Citizens United places even modest, bipartisan restrictions on the manner and target of corporate spending in elections into the category of constitutional “strict scrutiny.” They were deemed a “classic example of censorship” to be vigorously guarded against according to Justice Anthony Kennedy.

Kennedy simply brushed aside Justice John Paul Stevens’ dissenting observation that corporations still wield the ability to form political action committees, have their executives and board members make individual contributions, and otherwise lobby and make their preferences clear. As a result, there was no deferential balancing of interests like in CCNV. Laws restricting corporate spending are presumptively unconstitutional, and can’t be upheld unless the government has an extremely compelling reason for them.

And lo and behold! Kennedy and his colleagues determined that Congress’ concern for the corrosive impact of unlimited corporate money is simply too speculative. Without hard and fast evidence of quid pro quo corruption, efforts to halt the undermining of the quintessential public forum at the heart of our democracy– the elections in which individual, and not corporate, citizens cast their ballots– are for naught.

So even though corporate spending to back political candidates was never imagined to be a form of protected speech (let alone subject to such elevated protection) by the Framers, thanks to Citizens United, it has been placed at the heart of the First Amendment.

Meanwhile, citizens who have not incorporated themselves and aren’t flush with cash, but wish to express their displeasure with the ruling and the broader distortion of our democracy, have greater restrictions than large corporations on their right to speak out.

It is precisely this skewed reality that makes me, as a student of American history, a newly-minted lawyer, and a citizen of this great nation, proud to be a part of the Democracy is for People campaign’s effort to pass a constitutional amendment overturning Citizens United.  If you’re equally outraged, and equally impassioned to do something about it, then get involved in this movement today.

Sean Siperstein is a Legal Fellow with the Democracy is For People campaign.

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