Wednesday, September 29, 2010

NY Times sexes up boring case with false corporate personhood angle

On Monday, the SCOTUS granted cert on FCC v AT&T. The case turns on the meaning of “person” as defined in a particular statute (5 USC 552(b)(7)(C)) and, accordingly, has exactly zero to do with the doctrine that corporations are persons as a matter of constitutional law.

That pesky fact doesn’t stop Adam Liptak from the NY Times; he’s got a narrative and he’s sticking with it:

The new cases follow the court’s decision in January in Citizens United v. Federal Election Commission, which ruled that corporations and unions have a First Amendment right to spend money in candidate elections.

The problem: the cases really don’t have anything to do with Citizens United. They follow CU sequentially, but not causally. One may as well say that the sun rising in the east followed Liptak’s article. It’s true, but the two don’t have anything to do with one another.

Liptak’s misleading story was picked up and distorted further, leading to inane posts like this one at The Atlantic Monthly:

While this case is not a carbon copy of Citizens United and justices are not guaranteed to vote similarly, the Citizens breakdown may serve as a helpful barometer of where votes may fall on FCC. After all, both cases have at their core the issue of corporate "personhood" and the rights that accompany it.

Not really. In fact, we _know_ that AT&T is a “person” under FOIA, because FOIA clearly defines “person” to include corporations:

“person” includes an individual, partnership, corporation, association, or public or private organization other than an agency

So the question for the Supreme Court is how to read the statute, and, specifically, how to interpret the term “personal privacy.” If “personal privacy” is “privacy” that accrues to a “person,” then the definition of “person” per FOIA should control, meaning that corporations have “personal privacy.” If, on the other hand, “personal privacy” is something like a technical term, or a distinct term of its own, then the definition of “person” in the statute isn’t controlling and we would look to ordinary usage to determine its own meaning. A Third Circuit panel – comprising two Clinton appointees and a GWB appointee – found the former:

After all, "personal" is the adjectival form of "person," and FOIA defines "person" to include a corporation. We agree. It would be very odd indeed for an adjectival form of a defined term not to refer back to that defined term…. Further, FOIA's exemptions indicate that Congress knew how to refer solely to human beings (to the exclusion of corporations and other legal entities) when it wanted to. Exemption 7(F), for example, protects information gathered pursuant to a law enforcement investigation that, if released, "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F) (emphasis added). Yet, Congress, in Exemption 7(C), did not refer to "the privacy of any individual" or some variant thereof; it used the phrase "personal privacy."

It’s a reasonable opinion, although the opposite reading is reasonable, too. The other position – that “personal privacy” is a term distinct from its component words – is, IMHO, the better reading of the statute, although regardless of which position prevails “corporate personhood” has nothing to do with it.

Sunday, September 26, 2010

The stupid at Americablog burns

This NYT article discusses how some are planning to oppose the reelection of judges that held that the gay marriage ban was unconstitutional. There are all sorts of interesting issues afoot here: the tension between substantive justice and democratic process, a vanguard judiciary and democratic legitimacy, and so on.

Americablog's take on this topic so pregnant with interesting subjects?
What part of this is any different than the Soviet Union or any other two-bit dictatorship?

What? It's worth it to read that one again, and then step back and really savor the inanity: yes, we're just like the Soviet Union because we have elections.


Saturday, September 18, 2010

Democratic Governors Association Complaint: Pure Slop

The DGA filed a complaint against Faux News with the Ohio Election Commission. It's pure crap. Here's the gist: the (R) gubernatorial candidate in OH, John Kasich, was on Faux and they put his fundraising website's address on the screen. According to the thin filing, this was in-kind contribution from a corporation, which is prohibited by ORC 3517.10(I)(5).

Try reading the law next time, guys.

Here's 3517.01(e), creating an exception from the definition of "contribution" for "[a]ny contribution as defined in section 3517.1011 of the Revised Code that is made, received, or used to pay the direct costs of producing or airing an electioneering communication."

Next we turn to 3517.1011 to see how it defines "contribution:"
A communication that appears in a news story, commentary, public service announcement, bona fide news programming, or editorial distributed through the facilities of any broadcast, cable, or satellite television or radio station, unless those facilities are owned or controlled by any political party, political committee, or candidate

There's plenty of fun to be had from wondering whether Faux News is controlled by a political party, but as a legal matter it clearly falls within the scope of "bona fide news programming." What that tells us is that its communications will not - can not - constitute a in-kind contribution.

In short, the DGA complaint is crap.