Reach Out and Touch Someone
FCC v. AT&T reveals the limits of corporate personhood at the Supreme Court.
AT&T slips into the Supreme Court chamber this morning, moments before arguments are set to start. He feels slightly affronted that nobody seems to notice him. (AT&T is a very emotional guy.) AT&T is handsome in the obvious way. (He has the Nights and Weekends plan). After these same justices ruled almost a year ago to the day that he had the same political-speech rights as human people, he's feeling a lot more corporeal than he used to. If things go his way today, in the coming years he will enjoy not only free speech and personal privacy rights but the right to bear arms as well.
FCC v. AT&T is his story, and AT&T prefers to tell it his own way: Back in 2004 he discovered (embarrassing!) that he may have been overcharging the federal government for the E-Rate program that was meant to bring technology into classrooms. The FCC launched an investigation, collecting AT&T's various corporate documents, e-mails, and other information. The matter was resolved and a $500,000 settlement reached, but then CompTel, a trade association made up of AT&T competitors, filed a request under the Freedom of Information Act to look at all the investigation files. FOIA was enacted in 1966 to give private citizens greater access to government records.
But AT&T felt, passionately, that turning over these materials would violate the corporation's "personal privacy." One of the exemptions to FOIA—exemption 7(C)—provides that records may be withheld if their release would represent an unwarranted invasion of "personal privacy." But since this exemption has only ever been invoked to protect human privacy rights, never corporate ones, AT&T has to persuade the courts to extend the right to "personal privacy" to corporations as well as people. So it's a big day: Because today the Supreme Court will decide whether AT&T is people, too.
AT&T finds himself slightly uncomfortable at all the attention he's getting today. He sort of wishes his friends BP and Exxon could be here. They could tell these justices a thing or two about corporate embarrassment. The 3rd Circuit Court of Appeals agreed with him, by the way, about the tender feelings of large telecommunication companies, finding that "[c]orporations, like human beings, face public embarrassment, harassment and stigma because of that involvement."
Things get off to a swoony start for AT&T when the Court opens the session with the announcement that in a new 8-0 decision, NASA contract employees have no privacy right to be free of embarrassing drug questions in their background checks. This is great news because in AT&T's experience, whenever the court takes privacy rights away from the humans, it usually grants them to corporations.
Then Anthony A. Yang, an assistant to the U.S. Solicitor General, gets up to argue the FCC's side in the case, specifically, that "it's long been well established that corporations have no personal privacy."* AT&T finds himself tearing up a little when Justice Samuel Alito nips that little fallacy in the bud. Alito notes that since the Administrative Procedure Act, which covers FOIA, defines a "person" to include a "corporation," it's clear that "in the law, [person] is sometimes used to refer to a corporation."
Chief Justice John Roberts adds that privacy in the law isn't limited to humans: "Corporations have private property. They have private documents." Justice Antonin Scalia gets into a fight with Yang about how broadly the Justice Department wants to define the FOIA exemptions. Scalia appears to be trying to help the government win its case and the government seems to be insistent in remaining un-helped so it can win future cases.
Chief Justice Roberts muses, "I suppose families have rights of personal privacy … So in some contexts, personal privacy does go beyond the individual?"
AT&T shivers in delight at hearing these words come from the Chief Justice's lips. Because that's all he is, really. A family. A family of people who just really like telephones.
Things start to get ugly, however, when AT&T's lawyer, Geoffrey M. Klineberg, approaches the podium. Ruth Bader Ginsburg immediately asks him whether "foreign governments, State and local governments," are persons, too. Klineberg says they are. "Wait just a minute," thinks AT&T. "Luxembourg is a person? I don't think so."
Dahlia Lithwick writes about the courts and the law for Slate.