Will FCC v. AT&T be Citizens United, Part II?

By Brooke Obie, Online Communications Director

In early 2010, a 5-4 majority on the Supreme Court handed down the monumentally wrong decision in Citizens United, giving corporations, which are never mentioned in the Constitution, the same rights as “We the People” to spend unlimited sums of money to influence the outcome of candidate elections.  Devastating as Citizens United is for our elective process, the Court did not overturn many prior rulings that indicate that corporations do not, in fact, have precisely same constitutional rights as individual Americans.

Which is what makes FCC v. AT&T, scheduled for oral argument in January, a fascinating case to watch. Most of the briefing in FCC is narrowly focused on the text, structure and drafting history of FOIA and the Administrative Procedure Act (APA), of which FOIA is a part.  The APA defines the term “person” to include corporations, but FOIA contains exemptions that — pretty much everyone agrees — apply only to living individuals.  The question in FCC is whether the FOIA exemption at issue (Exemption  7(C)), which protects “personal privacy,” is one of those exemptions.

CAC has filed a brief that helps answer that question by looking at how the Supreme Court has dealt with similar issues under the Constitution throughout our nation’s history.  Like the APA, the Constitution uses the term “persons” (not “corporations”) and the Court, like Congress, has held in a number of contexts that corporations can be treated as “persons” for some purposes related to their legitimate business interests.  But, throughout our history, the Court has also treated corporations as fictional persons – qualitatively different from human beings – and consistently held that only living, breathing human beings possess the dignity interests protected by privacy rights.

CAC’s brief argues that FOIA, like our Constitution, protects corporations and human beings differently, and for different reasons.  Constitutional history, the text and context of the FOIA statute, and the Court’s own precedents in such cases as Braswell v. United States (1998)(holding that the Fifth Amendment’s Self-Incrimination Clause does not protect corporations), which remain good law after Citizens United, all strongly suggest that the Justices should refuse to expand the concept of “personal privacy” to include the commercial interests of artificial, corporate entities.

We’ll be watching to see whether the Court holds true to its own long-standing treatment of corporate personhood, or whether it uses FCC as an opportunity to further chip away at the idea that corporations are not people.

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