The Supreme Court wrestled with this question in FCC v AT&T on Wednesday and that brought to mind three issues:
- What is the background of the case?
- How did corporations become “persons”?
- What was the Supreme Court’s reaction during oral argument?
AT&T sold some computers to the government as part of a program to supply them to school children. Overbilling was suspected and the government conducted an investigation which required AT&T to produce documents and other things. A business group comprised of AT&T’s competitors made a request under the Freedom of Information Act (FOIA) for the information. AT&T objected. The Third Circuit sided with AT&T and the FCC appealed to the Supreme Court.
The FOIA requires the government to produce documents in its possession. Under the Act there are a number of exceptions. Exception 7(C) provides that information about “personal privacy” does not have to be released. AT&T argued that since it was a corporation, under the law it is considered a “person”. Therefore this exception applied and the FCC should not release the information.
CORPORATIONS ARE “PERSONS” – HOW DID THAT HAPPEN?
This legal fiction traces right back to the 17th and 18th centuries. Traditionally the King would grant a charter to a group empowering it to conduct a particular activity. As international commerce matured, greater flexibility was required and nations – primarily Britain – passed laws creating corporations and setting forth what a corporation could do.
The Dutch East India Company and Hudson’s Bay Company are good examples. Corporations could live (granting a certificate of incorporation) die (dissolution), take and grant property, enter into contracts, sue and be sued. They resembled people. In Trustees of Dartmouth College v. Woodward (1819) the Supreme Court granted corporations a broad spectrum of personal rights. In Santa Clara County v. Southern Pacific Railroad (1886) the Court extended many constitutional rights to corporations. And most recently, in Citizens United v. Federal Election Commission (2010) the Court ruled that a cap on corporate giving in elections was an unconstitutional restraint on corporations’ freedom of speech.
AT&T’s position that the “personal privacy” exemption allied to it did not receive a positive reception – particularly from the more conservative Justices. Justice Scalia inquired if “anyone refers to the interest of a corporation as the ‘personal privacy’ of General Motors? I cannot imagine someone using a phase like that.” Justice Scalia also noted that at the time of passage of the FOIA the then Attorney General opined that “personal privacy” applied to individuals and not corporation. He challenged AT&T’s attorney that if AT&T’s interpretation was correct (and the Attorney General was wrong) why hadn’t someone challenged that interpretation in the last 35 years?
Chief Justice Roberts used a grammatical approach. He tried to think of adjectives (personal) from its root. His examples were “craft” and “crafty”, “squirrel” and “squirrelly” and “pastor” and “pastoral”. At this point AT&T’s counsel started to steer away from the grammatical argument hehad used in his brief.
From the tone of the argument one might expect a different result from the one in Citizens United v. FEC. A decision is expected by June.