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.