FCC v. AT&T: The Idolatry of Corporations and Impersonal Privacy

By Daniel JH Greenwood*

“You shall not make molten gods for yourselves.” Ex. 34:17

This Term, in Federal Communications Commission v. AT&T Inc.,[1] the Supreme Court held that Exemption 7(C) of the Freedom of Information Act (FOIA) does not extend a right of “personal” privacy to corporations. The Third Circuit had reasoned that, because the statute defines the word “person” to include corporations, the word “personal” must also include “corporate.”[2] In a victory for ordinary English usage, the Supreme Court unanimously rejected the Third Circuit’s tin ear. Lawyers often call corporations “persons,” but that does not mean that “personal” privacy includes “impersonal” or “business” secrets.

Liberal political theory is based on a fundamental suspicion that our governing institutions, without which we cannot live a decent life, also may be a threat to the same freedom they are intended to protect. Power can be used for good or ill; when we place concentrated power in the hands of individuals or institutions, we must guard against its abuse. We therefore limit the discretion of government, tying it to popular will by elections and restraining its scope by theories of fundamental rights and privacy.

The modern business corporation is a bureaucratic institution larger, wealthier and more powerful than the ineffective minions of King George III whose overreaching inspired our Revolution. The real question raised by FCC v. AT&T is the status of these business corporations. Our Constitution and our political debate often divide the world into two categories: state and citizen, public and private, collective and individual. Do the multinational publicly traded corporations belong on the individual, private side of this great liberal divide? Are they, like citizens, entitled to demand respect as ends in themselves and equal consideration as members of the community? Or do they belong on the state side, like municipal corporations and other governmental agencies, presumed both essential and dangerous, but never more than a tool to human happiness that, in the words of the Declaration of Independence, the people may “alter or abolish” anytime they become destructive to our ends? Should we interpret ambiguous legal precedents with a background presumption that business corporations, like citizens, need protection against the state, or should we start from the presumption that we, dependent on giant firms, may need protection from them just as we need protection from the bureaucratic agencies of the state itself?

If corporations belong on the citizen side of the divide, then the Third Circuit’s opinion was not unreasonable. Courts ought to read the authorities in front of them in light of a strong presumption that decent societies act decently; if the legislature seems to have denied a “person” a fundamental right, courts generally ought to assume the consequence was unintended. It is highly unlikely that FOIA intended to eliminate basic privacy rights simply by omission, even if that is what FOIA’s words seem to say.

In contrast, if corporations belong on the state side of the liberal divide, then the presumption reverses: We should have rights against the institutions we create, not the other way around. Moreover, it is rarely the case that giving rights to an organization is the same as giving rights to its members; careful analysis is needed to determine whether organizational rights will advance the general welfare and further the members’ goals.[3] Often rights for organizations, like rights for states, simply enable the entity to wander off in unintended directions or its leaders to diverge further from followers.[4] It is unlikely that the legislature meant to use FOIA, which is clearly intended to subject government administration to popular opinion and therefore popular control, to create a new autonomy right for exactly the institutions that most threaten to capture their regulators in defiance of popular will. Moreover, even if that was the legislature’s intent, courts seeking to protect republican self-government should demand such extraordinary action be in the clearest possible language.

The Court’s opinion is silent on this basic issue. Only a strong theory of corporate rights could lead a native English speaker to conclude, as the Third Circuit did, that a statute should be interpreted to mean the opposite of what its words ordinarily mean. The Supreme Court’s purely linguistic analysis, as arid as any Lochner-era formalist opinion, demonstrates its ability to use the dictionary, but fails to address the underlying legal issues. More disturbingly, it hides behind its formalism to avoid making even the slightest attempt to explain how this decision can be consistent with its many decisions that, like the Third Circuit opinion, invent corporate rights with no deference to plain meaning. Why is ordinary meaning important here, but irrelevant when corporations assert constitutional rights that the text grants only to human beings?

I. The Case

The FCC v. AT&T case arose out of AT&T’s overcharges to a local school district, in potential violation of federal law. In the course of a successful attempt to settle the matter, AT&T voluntarily turned corporate documents over to the FCC. Following the settlement, in which AT&T admitted no wrongdoing but paid $500,000 and instituted internal procedures to avoid future overcharges, an organization known as CompTel representing several AT&T competitors made a FOIA request for the investigative file.[5] AT&T sought to bar disclosure, arguing that it would unduly interfere with AT&T’s privacy.

AT&T did not assert privacy rights to protect private citizens from government inquiries or even to protect AT&T from an intrusive regulator:[6] The only documents involved are ones that AT&T had already voluntarily disclosed to the government. Instead, AT&T sued to prevent the FCC from disclosing the contents of its file to the general public—including AT&T’s investors, employees, customers, and competitors.

FOIA contains specific provisions protecting trade secrets and other legitimately confidential business secrets (and, indeed, the FCC withheld some documents on those grounds).[7] In this action, however, AT&T sought to ground non-disclosure in a far broader claim: that it—a major multinational corporation—has a “personal” right, analogous to the right ordinary citizens have to conceal their intimate affairs from casual curiosity, strong enough to keep the country from learning the truth about both its possible malfeasance on a public contract and the basis of the government’s agreement not to pursue charges.

The narrow issue before the Third Circuit was simple statutory interpretation. The statute’s Exemption 7(C) exempts records and information compiled for law-enforcement purposes if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”[8] The FCC contended that the exemption is inapplicable to claims by a multinational corporation. AT&T argued, and the Third Circuit held, that since FOIA defines the word “persons” to include corporations, “personal” must also include corporate rights.[9] Accordingly, AT&T could assert rights to “personal privacy” and the FCC was obligated to consider whether disclosure would “constitute an unwarranted invasion” of these rights.

As a matter of plain meaning, the Third Circuit was obviously wrong, and the Supreme Court so ruled: In ordinary English usage, corporations do not have “personal” privacy. While the word “person” often includes corporations in legal jargon, the adjective “personal” does not carry that special meaning.[10]“Personal” is the opposite of bureaucratic, impersonal, or business, not its synonym, and “personal privacy” never means “business secrets.” Moreover, the statute follows ordinary legal usage elsewhere. In Exemption 6, which protects medical records and therefore obviously applies only to individuals, it uses the same “personal privacy” language. In contrast, in Exemption 4, which protects business secrets, the drafters awkwardly use the defined term “person” to clarify that businesses are included.[11] Finally, the tort of invasion of personal privacy existed when FOIA was drafted and did not extend to corporate claims.[12]

Nonetheless, the opinion is grossly inadequate, as the briefest examination of the Court’s corporate jurisprudence makes clear. The Third Circuit was wrong, but it was not wrong because of illiteracy.

Mere linguistic clarity has rarely determined corporate rights. Over two centuries of constitutional adjudication, the Court has freely ignored ordinary meanings.[13] Instead, it has routinely extended rights to corporations based on no more than a metaphorical analogy of organizations to individuals.

The pattern begins in the earliest days of the Republic, in Trustees of Dartmouth College v. Woodward, where the first Justice Marshall held that the Contract Clause sanctifies corporate charters even though they are not contracts in the usual sense.[14] Soon thereafter, long before it was willing to recognize many human Americans as entitled to the rights of citizenship,[15] the Court had no doubt that the Diversity Clause, which provides that “[t]he judicial Power shall extend . . . to Controversies . . . between Citizens of different States,”[16] authorizes jurisdiction over controversies involving corporations—although they are not citizens.[17] The constitutional language was so irrelevant to this result that the Court was able to reverse its rationale twice without affecting the result.[18]

The Court’s disregard for plain meaning continued after the Civil War. The text of the Fourteenth Amendment is at least as clearly limited to human beings as FOIA’s Exemption 7(C). To be sure, the Amendment guarantees due process and equal protection to “persons,” and corporations have long been considered “legal persons”—i.e., legally recognized bearers of legal rights and obligations—for some purposes.[19] However, the plain meaning of “persons,” in context, is clearly “people”, i.e., human beings. First, the persons in question are “born or naturalized”; corporations are not. Moreover, the Amendment provides that apportionment be by the whole number of “persons,” and no one has ever imagined that non-human entities should be counted in apportionment even as 3/5 of a man.[20] Neither ordinary English nor legal norms allow an ambiguous word to switch meanings repeatedly within a single paragraph of an operative document.[21]

The plain meaning of the Fourteenth Amendment, however, has had no influence on the Court’s corporate jurisprudence. Although the Court was reluctant to enforce the Amendment in its intended sphere,[22] it quickly applied its protections to business corporations, without seeing any need to justify its decision in text, history, or policy. [23] Nor did it see any need to reconsider these decisions after the great revolutions in corporate law at the end of the nineteenth century that first authorized mergers or the New Deal rewriting of the law of publicly traded firms. [24]

The Court has taken the same approach to the incorporated Bill of Rights. It has granted corporations virtually every right it grants to citizens, without regard to the text and generally without any significant discussion of whether organizational rights will translate into human rights or the reverse.[25] Thus, corporations may invoke the Fourth Amendment rights of “the people to be secure in their persons, houses, papers and effects,” even though they are not part of “the people,” bureaucratic organizations do not have “persons” or “homes” in ordinary usage, and we routinely assume the right to audit state bureaucracies without “their” consent.[26] Similarly, it created double jeopardy rights for corporations, although a legal entity can have neither life nor limb at stake and would have no natural right to preserve it if it did.[27]

Most problematically, the Court has held that the First Amendment, as incorporated by the Fourteenth Amendment, prevents state or federal regulation of corporate managers’ use of corporate money to influence politics.[28] But nothing in the language or plain meaning of the First Amendment supports granting rights to legally defined organizations against the people. No one’s freedom of speech is abridged when fiduciaries are relieved of the obligation to spend money derived from customers or employees to lobby for rules that might harm customers or employees. On the contrary, fiduciaries and beneficiaries alike would be freer were they restricted to speaking their own mind and spending their own money.[29] Entity rights coerce individuals: Corporate agents must choose between their jobs and parroting positions not their own, while customers, employees, and investors are, in effect, taxed on economic transactions to pay for lobbying that may have no relation to their interests or values.

Outside the organization as well, We The People would be freer if the Court read the First Amendment to grant us rights against corporations rather than the reverse. Competitive capitalism itself is threatened when our wealthiest institutions can use the proceeds of their past success to subvert rules that might threaten their economic incumbency.[30] AT&T is a prime example. Its PACs and employees taken as a group are the largest political contributor in the US, spending $41 million in the last eleven election cycles to influence federal elections. Of the almost $28 million it spent influencing Congressional elections, over 85% went to incumbents of both parties.[31] Its disclosed lobbying expenditures are even larger—over $150 million in the last twelve years, making it the seventh largest spender on lobbying, including $27 million lobbying Congress in 2006. Presumably, this money is spent to promote the incumbency interests of AT&T itself, not to encourage innovation, competition, consumer or employee rights, or Schumpeterian creative destruction that might lower its profits.

It takes an aggressive reading of the First Amendment to conclude that it precludes popular restraints on incumbent economic power. A more natural understanding of our commitment to free speech would invoke it, instead, to protect free speech and dissent rights within corporations, making space for corporations to develop the critical public opinion that is the best bulwark against complacency and corruption.

The plain meaning of the words did not inhibit the Supreme Court from creating corporate rights in any of these and other constitutional cases.[32] Accordingly, one obvious explanation of the Third Circuit’s strange reading of FOIA is that it concluded that these cases represent a considered judgment that corporate rights are human rights.

If so, does the decision in AT&T v. FCC reflect a change in the Court’s views?

The opinion disappoints. The proper place of corporations in our political system, constitutional framework, and FOIA is more important to interpretation of this statute and other texts than the Third Circuit’s usage skills. Unfortunately, the Court is simply silent on the critical issue—why ordinary language should be important in this alone of corporate rights cases.

II. Privacy

The opinion that the Supreme Court should have written begins with this fundamental point: Personal privacy is a core right of citizens of modern limited democracies. It might seem, then, that extending this right to corporations would extend our freedom. That conclusion would be wrong. In fact, extending privacy rights to our large bureaucracies—whether corporate or governmental—turns the right on its head.

We prize privacy for reasons grand and mundane. Grand, because privacy marks off the spaces in which we can escape from the claims of the collectives in which we live our lives. When religion is public, religious people must fight to control the public space; when religion is private, religious war is pointless. Privacy allows people of different commitments and values to live together more or less in peace. [33]Mundane because the small freedoms to eat, dress, or straighten the house (or not) according to personal taste make room for the pleasures of idiosyncrasy and individuality in a world too often devoted to conformity.

We protect privacy out of respect for the unalienable rights of the individual.[34] But privacy also underpins Americans’ collective life. This space apart from social pressures is where innovation, creativity, and rebellion—whether cultural, political, or economic—can grow strong enough to survive the powerful forces of status quo incumbency. Our rights of privacy against the government and the majority create spaces where John Stuart Mill’s non-interference principle applies:[35] Individuals are not required to follow the wishes or style or beliefs of the majority.[36] We can follow our consciences or tastes (or lack thereof),[37] speak the language that speaks to us,[38] read the books we choose,[39] act in politically-incorrect ways,[40] or engage in unconventional sexual practices.[41] And not least important, we can develop new technologies or new ways of living even if they threaten established beliefs, companies, or economic relationships.

However, individual freedom requires limitations on the groups and organizations we use to govern ourselves collectively. Traditional Eighteenth and Nineteenth century liberal theory sought to limit the power of the state and its agencies, the most powerful organizations of that day, without destroying its ability to preserve us from a Hobbesian war of all against all. In the modern world, exactly the same concerns require limiting the power of modern organizations of collective authority. We depend on our institutions’ effectiveness, but our rights depend on limitation of their rights.[42]

Any bureaucracy, whether we label it state or corporation, has the potential to act contrary to the public interest or be captured by private interests.[43] AT&T is surely not the worst offender, but beyond the overcharges here, it has been broken up for monopoly, accused of illegally wiretapping customers on behalf of spy agencies, accused of censorship, and accused of contemplating setting itself up as judge and jury to enforce its view of the law.[44] Meanwhile, while U.S. telecommunications services lagged behind the norms elsewhere, AT&T’s executive raked in extraordinary pay and its shareholders benefited from high profits.[45]

Privacy creates a zone of autonomy in which actors need not take account of the views of others. This freedom is necessarily also the freedom to abuse power. When privacy is extended where it does not belong, courts and government look away—neither restraining those who abuse power nor holding them accountable for their malfeasance.[46] Consequently, individual privacy rights always involve difficult balancing issues. As Hobbes famously pointed out, no individual can be free unless every other person is restrained. Somehow, we must find a compromise in which we have both private space to be ourselves and public protection from those who prefer the cover of darkness—bullies, thieves, and all those who want more than their fair share of the common space.

Privacy rights for institutions, however, involve a different calculus. Institutional autonomy is no sacred value in a liberal state.[47] Corporations are powerful tools to human ends, like government. We should respect them, then, as we respect government—and, indeed, any useful tool. But we should not commit the sin of idolatry by setting up our creations to rule us. A corporation is not an end in itself “endowed by [our] Creator with unalienable rights.”[48]

Our freedom depends on our ability to ensure that corporations use their powers to “promote the general Welfare”[49] and not merely to aggrandize their ministerial guardians or to promote bureaucratic self-preservation. Just as we need state agencies, so too we need the great multi-national corporations. But just as we fear that state agencies may pursue their own interests or be captured by powerful insiders or outsiders, so too we should be wary of our corporations. Any institution may outlive its usefulness; any bureaucracy has internal dynamics driving it to grow or fight for its survival even when we would be better off without it. Corporations too can become independent power centers pursuing the ends of their insiders rather than society.[50] In the Declaration of Independence, we proclaimed our right to “alter or abolish” any form of government that becomes destructive of our aims, and to institute new government “in such form as . . . shall seem most likely to effect [our] safety and happiness.” The same reasoning applies to business corporations. We should no more sanctify the results of internal power struggles to control business corporations than we should respect the divine right of kings. If current managers or structures make decisions that do not lead to socially useful results, we should change them.

Privacy rights that conceal the inner workings of a business from view free the institution and its decision makers from responsibility to its stakeholders and the public. To reform intelligently, however, we need knowledge. Permitting a powerful organization to keep its processes concealed from public view does not promote human freedom. Instead, it simply allows incumbent office holders to ignore the needs and desires of their constituents and dependents.

III. Freedom of Information Act

FOIA was enacted to open the internal workings of government to public scrutiny. As Justice Brandeis said, sunshine is the best disinfectant: Information is the essential prerequisite to informed political debate and the restraining power of public opinion.[51] Freedom of information is, of course, the opposite of privacy. Privacy should protect us against the institutions we depend on—not protect institutional insiders from disclosure that leads to accountability.

Regulation of our major economic actors is a key topic of our politics. Indeed, controversies over economic regulation have confronted American democracy at least since the early debates over the Bank of the United States, Hamilton’s manufacturers, and the abolition of property in human beings. In the modern era, as powerful multinational corporations have grown to dominate our economy, the question of the relationships among our political agencies, our corporate bureaucracies, and the sovereign people has become, if anything, more fraught.[52]

AT&T’s ability to settle criminal charges stemming from its overcharges to a school district fall squarely within this long standing concern: What is the proper relationship between the democratic branches and large business corporations that may be able to evade the restraints of market and law alike? All the well-known failures of public and private bureaucracies are potentially present. Individual regulators may be looking forward to future careers with the regulated entity. The regulatory discourse may be dominated by representatives of the regulated entities or other special interests. The echo chamber of a closed group may distort the agency’s priorities. On the other side of the table, agents of the private entity may be pursuing their private interest rather than the corporation’s, for example by pursuing a bonus or a promotion even at the cost of exposing their employer to criminal charges. Or the organization itself may have placed short-term profit maximization ahead of the requirements of legality or common decency to school children. Even beyond the particular problems of corruption that AT&T’s behavior raises, public disclosure is the essential prerequisite for intelligent public debate of, for example, the merits of having for-profit entities provide essential public services to school districts or relying on self-reporting in lieu of routine tax-funded supervision.

It would therefore be surprising to find that FOIA, designed to help citizens control their bureaucracies, instead created large new institutional exemptions from the cleansing power of sunshine and the authority of public opinion.[53] The Court was right to follow the plain meaning of the statutory language here, because the plain language reflects an appropriate background understanding of privacy rights in the corporation.

IV. Conclusion

The Supreme Court’s jurisprudence has never confronted the true place of a business corporation in a liberal democratic republic. In this case, the Court’s empty formalism brought it to the right result: The privacy rights of citizens should not be extended to large bureaucratic institutions. But elsewhere the Court gives words of similar import radically different meanings. Plain meaning, standing alone, is meaningless. We need an interpretive theory to justify the interpretative method.

The unfortunate fact that legal English uses “personhood” or “personality” to refer to the right of an entity to appear in court, to be the subject of the law and not ignored by it, should not blind us to reality.[54]Corporations are not individuals entitled to the rights of man.

Doctrines of corporate privacy, corporate rights, and corporate autonomy may protect corporate participants. But, like the parallel doctrines of sovereign or state agency immunity and deference, these doctrines of deference to incumbent corporate authorities never do so automatically or unproblematically. Prudence, not principal, is the only way to decide the rights we should grant our institutions against us. A decent respect for the difficulties of operating and regulating complex, ever-changing and powerful institutions should lead the Court to defer to the judgment of the political branches in interpreting statutes and constitutional alike.

The great liberal struggle has been to acknowledge the moral personhood of and grant legal personhood to human beings—first commoners, then religious minorities, then the poor, then African-Americans, then women. Simultaneously, we have worked to restrict the claims to personhood, autonomy and unquestioned authority of the feudal corporations, the aristocracy, the Church, and the sovereign.[55]Granting a broadly defined right to privacy to a corporation such as AT&T would turn this historic struggle for personhood on its head.

If the purpose of the right to privacy is, as Jed Rubenfeld has suggested, to protect against law that so affects the totality of a person’s life as to be totalitarian,[56] we may need rights of privacy against corporations but it is impossible to see how AT&T could need a right of privacy against Americans and our government. AT&T is not a human being. It acts only by virtue of law, so it can have no actions that are so fundamentally its own that the law should respect them even if a majority might find them reprehensible or ill-advised. It has no claim to autonomously develop its self in accordance with its self-described goals; such a claim to self-determination would be incompatible with the claims of the human beings who use it as a tool to their own ends.[57] To ascribe such an interest to a tool would be idolatry in the pure biblical sense: to set up the work of our hands as gods to rule us.


[*] Professor of Law, Hofstra University School of Law; J.D., Yale Law School, 1984; A.B., Harvard University, 1979; http://people.hofstra.edu/Daniel_J_Greenwood/. David Gerardi’s research assistance and editorial insights went well beyond the norm and the paper is much improved as a result. This article was supported by the Hofstra University School of Law summer research fund.

[1] 131 S. Ct. 1177 (2011).
[2] AT&T v. Fed. Commc’ns Comm’n, 582 F.3d 490, 497 (3d Cir. 2010).
[3] See, e.g., Robert Michels, Political Parties (1962) (describing the “iron law of oligarchy” that leaders systematically differ from their followers); Albert O. Hirschman, Exit, Voice & Loyalty (1970) (exploring dynamics by which an organization’s participants affect its actions).
[4] The issue is precisely parallel to well-understood issues in international law: respecting state sovereignty is often equivalent to allowing a state unhindered ability to oppress its subjects.
[5] FCC v. AT&T, 131 S. Ct. at 1180.
[6] Compare NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 466 (1958) (allowing NAACP to assert privacy rights of its members).
[7] The FCC declined to disclose documents under Exemption 4, 5 U.S.C. § 552(b)(4) (1970), which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” See Petition for Writ of Certiorari at 4, 8, FCC v. AT&T Inc., 131 S. Ct. 1177 (2011) (No. 09-1279), 2010 WL 1626444, at *8.
[8] 5 U.S.C. § 552(b)(7)(C) (1970). Pursuant to this section, the FCC declined to publicly disclose names or other individual identifying information of human beings.
[9] AT&T v. Fed. Commc’ns Comm’n, 582 F.3d 490, 497 (3d Cir. 2010).
[10] FCC v. AT&T Inc., 131 S. Ct. 1177, 1181–84 (2011).
[11] Id. at 1184–85. Thus, Exemption 4 protects information “obtained from a person” rather than “personal secrets”. Similarly, Exemption 7(B) protects information that “would deprive a person of a right” rather than “personal rights.” 5 U.S.C. § 552(b)(7) (1970).
[12] Id. at 1183–84.
[13] The opinion does hint at a possible difference between statutory and constitutional interpretation, but does not explain why ordinary English usage would matter in the former and not the latter.
[14] 17 U.S. 518 (1819). The opinion may be better understood as a relic of the medieval notion of corporations as quasi-sovereigns—like the corporate nobility and church—with established feudal rights against the monarch.
[15] Dred Scott v. Sandford, 60 U.S. 393 (1856) (excluding all Americans of relatively recent African ancestry from rights of citizenship); see also Bradwell v. State of Illinois, 83 U.S. 130 (1872) (finding no violation of citizenship rights when Illinois excluded a woman from the Bar under a statute that allowed admission of “person[s]” of good character and sufficient training); United States v. Ju Toy, 198 U. S. 253 (1905) (denying habeas corpus petition of US citizen who was excluded at border based on ancestry); Korematsu v. United States, 323 U.S. 214 (1944) (permitting exclusion of Americans of Japanese ancestry from ordinary rights of citizenship); Loving v. Virginia, 388 U.S. 1 (1967) (reversing two centuries of denial of marriage rights to mixed-race couples).
[16] U.S. Const. art. III, § 2, cl. 1.
[17] Bank of the U.S. v. Deveaux, 9 U.S. 61, 87, 90–92 (1809) (holding that courts should ignore corporation’s separate legal existence and base diversity on status of corporate “members”).
[18] Compare Deveaux, 9 U.S. at 87, 90–92 with Louisville, Cincinnati, & Charleston R.R. Co. v. Letson, 43 U.S. 497, 558 (1844) (overruling Deveaux and holding that a corporation should be treated as if it were a citizen of the state in which it is incorporated, regardless of citizenship of its “members”) and Marshall v. Balt. & Ohio R.R. Co., 57 U.S. 314, 325–28 (1853) (rejecting rationale of Letson and declaring that corporation is entitled to diversity jurisdiction on presumption that its shareholders are citizens of state of incorporation, even if demonstrably false); see also Carden v. Arkoma Assocs., 494 U.S. 185, 188–89 (1990) (reaffirming Marshall). I discuss this history in more detail in Daniel JH Greenwood, Essay: Telling Stories of Shareholder Supremacy, 2009 Mich. St. L. Rev. 1049, 1074–76 (2009) [hereinafter Stories].
[19] “Persons” is an ambiguous term in legal English. Sometimes it is a synonym for “people,” meaning human beings taken individually or as part of a collectivity. Frequently, however, it means “a legal actor recognized in a particular area of law,” that is, an entity that is permitted to sue or be sued in that area of the law. Under this second definition, boats are legal persons in admiralty law, sovereigns (but not their subjects) are legal persons in international law, and married couples are legal persons under the Internal Revenue Code. In contrast, minors are not persons in contract law although they often are in criminal law (the same dichotomy applied to slaves and to married women until the late nineteenth century). Perhaps the most ancient aspect of corporate law is the corporation’s recognition as a legal person in its own right, independent of the individual human beings involved, for purposes of contract and property law. Indeed, corporations were recognized as legal persons long before most human beings won legal personality. Compare Woodward, 17 U.S. 518 (1819) (discussing status of corporation as legal person), with Married Women’s Property Act of 1848, New York Gen. Oblig. Law § 3-301 (West 2001) (overturning common law coverture principle that women lost their status as separate legal persons on marriage) and Civil Rights Act of 1964, Pub. L. No. 88-352, 88th Cong. (implementing Fourteenth Amendment grant of personhood to African Americans); see also Daniel J.H. Greenwood, Introduction to the Metaphors of Corporate Law, 4 Seattle J. Soc. Just. 273, 290–92 (2005) (discussing personhood metaphor).
[20] U.S. Const. amend. XIV, § 2..
[21] See slip op. at 10 (stating that “identical words and phrases within the same statute should normally be given the same meaning.”) This is an accurate description of American conventions of legal drafting and interpretation. In other contexts, or other legal traditions, words may rapidly shift meanings in this way. For example, the Mishnah, apparently prioritizing ease of memorization over clarity of interpretation, often organizes rules by puns, using repetition of the same word, in radically different senses, as a classificatory system. The Court has never explained why the Fourteenth Amendment jurisprudence should ignore the usual American rule of construction.
[22] See, e.g., Civil Rights Cases, 109 U.S. 3 (1883) (inventing state action doctrine to protect statesanctioned and state-enforced “private” discrimination); Plessy v. Ferguson, 163 U.S. 547 (1896) (upholding state mandated Jim Crow segregation).
[23] Santa Clara Cty v. S. Pac. R.R. Co., 118 U.S. 394 (1886); see also Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949) (Jackson, J., dissenting) (recounting history of this interpretation); Herbert Hovenkamp, The Classical Corporation in American Legal Thought, 76 Geo. L.J. 1593, 1643–45 (1988) (stating that personhood was given to corporations to protect shareholders without problems of shareholder standing); see generally Stories, supra note 13, at nn. 59–61; Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 41 Hastings L J. 577 (1990); Gregory A. Mark, Comment, The Personification of the Business Corporation in American Law, 54 U. Chi. L. Rev. 1441 (1987); Morton J. Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. Va. L. Rev.173 (1986).
[24] Modern business corporation law dates to New Jersey’s corporate law revisions of the 1890s that earned it Lincoln Steffens’ opprobrium as the “traitor state.” See Lincoln Steffens, The Struggle for Self-Government 209 (1906). Critically, this was the first time corporations were permitted to hold the stock of other corporations, the prerequisite to the modern system of entirely self-defined enterprises. The modern characteristics of eternal life, centralized governance by a board of directors and its delegates, unlimited capitalization, complete entity liability (with no shareholder liability for corporate debts even in insolvency), proxy voting, incorporation without regard to real presence in the state, and the abandonment of the concepts of watered stock, par value and ultra vires or legislatively determined limits on corporate purposes, all date to this period as well. Idsee Lawrence Mitchell, The Speculation Economy41–42, 54; Hovenkamp, supra note 24; Charles M. Yablon, The Historical Race Competition for Corporate Charters and the Rise and Decline of New Jersey: 1880-1910, 32 J. Corp. L. 323, 326 (2007) (describing New Jersey’s dominance of permissive corporate law as beginning in 1875 ).
[25] No corporation has yet asserted a right to form a private army under the Second Amendment, which was recently re-interpreted to create an individual exception to the “monopoly on violence” often thought to define the state. Compare Max Weber, Politics as a Vocation (1919) (defining state as holder of monopoly on legitimate use of violence), with Dist. of Columbia v. Heller, 554 U.S. 570 (2008) (holding that Congress may not bar individuals from carrying handguns, regardless of whether they are affiliated with militia).
[26] Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978). Several members of the Court have even suggested that business corporations might have a non-textual right of freedom of association—permitting it to engage in racial discrimination—by analogy to a man choosing whether to admit a stranger into his home. Bell v. Maryland, 378 U.S. 226, 331, 333, 343, 345, 346 (1964) (dissenting opinion) (repeatedly referring to the corporate plaintiff as a gendered, named, individual human being and raising specter of individual being forced to open his home to Negroes (at p. 346)); see also id. at 260–71 (Douglas, J., concurring)(exploring difference between individual prejudice and corporate discrimination).
[27] United States v. Martin Linen Supply Co., 430 U.S. 564 (1967).
[28] First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 802 (1978). Just last Term, a narrow majority found this rule so clear that it was willing to overturn a century of good government legislation in an action where the issue had not even been litigated below. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).
[29] For further discussion, see Daniel JH Greenwood, Essential Speech: Why Corporate Speech Is Not Free, 83 Iowa L. Rev. 995 (1998); Daniel J.H. Greenwood, Should Corporations Have First Amendment Rights?, 30 Seattle U. L. Rev. 875 (2007).
[30] I argued this position more fully in Brief for Am. Indep. Bus. Alliance as Amicus Curiae Supporting Appellee on Supplemental Question, Citizens United v. FEC, 130 S. Ct. 876 (2010), (No. 08-205), 2009 WL 2365224.
[31] AT&T donates to both parties, with approximately 55% going to Republicans over this period. All data regarding AT&T political and lobbying spending are from The Center for Responsive Politics’s OpenSecrets.org database of FEC filings. Some totals and percentages are the author’s calculation from CRP data. http://www.opensecrets.org/orgs/summary.php?id=D000000076&cycle=2010.
[32] See, e.g., Edgar v. MITE Corp., 457 U.S. 624, 645–46 (1982) (stating that state has “no interest in regulating the internal affairs of a foreign corporation” and thus implying that common law “internal affairs doctrine” is constitutionally mandated by the Commerce clause). To be sure, this obiter dictum clearly is not a considered judgment. Still, it is astonishing that five members of the Court, with no textual support whatsoever, could even hint at the possibility that the Constitution requires other states to submit to Delaware’s extraterritorial legislation.
[33] See U.S. Const. amend. I; Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (barring municipal ban on animal sacrifice). But see Goldman v. Weinberger, 475 U.S. 503 (1986) (upholding military ban on Rabbi wearing a yarmulke). A liberal state allows members of different religions to live together by eschewing a communal religion. More generally, the speech and religion clauses of our First Amendment are a declaration that we will leave to the private sphere precisely those areas that the Greeks (and non-liberal theorists ranging from Augustine to Rousseau) viewed as the core of public politics. We will have no public debate on the most fundamental aspects of religion and culture.
[34]The unalienable rights language in our Declaration of Independence stems from the thinking of John Locke and his contemporaries. See John Locke, Second Treatise of Government § 4 (1690) (stating presumption that creatures born to same species are evidently political equals unless their Creator states otherwise). Early Biblical interpreters reached the same conclusion—that each individual human is sacred—directly from the Genesis story of creation. “Why was Adam created as a single individual? To teach that each individual is like an entire world . . . one who saves a single life, has saved an entire world.” Mishnah Sanhedrin 4:5 (author’s translation); cf. Koran, sura 5, verse 32 (similar interpretation). As Adam was irreplaceable, so is each of his descendants. Not so corporations. Purely secular philosophers place a similar importance on the individual. See, e.g., John Rawls, A Theory of Justice 252, 256 (1971) (describing Kant’s notion that persons ought to act “autonomously,” meaning according to principles he has chosen to express his “nature as a free and equal rational being,” and that failure to act in a manner that expresses this nature leads to a loss of self-respect).
[35] John Stuart Mill, On Liberty 197 (in The Philosophy of John Stuart Mill, Marshall Cohen, ed. 1961) (1859). Mill emphasizes that threats to individual liberty come from society as well as government narrowly understood. Id. at 191. He would have been mystified by AT&T’s attempt to jump from threat to victim. Id. at 197 (restricting right of autonomy to mature human beings).
[36] See generally Louis Brandeis & Samuel Warren, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[37] Cohen v. California, 403 U.S. 15 (1971) (reversing conviction for wearing jacket stating “Fuck the Draft” in courthouse).
[38] Meyer v. Neb., 262 U.S. 390, 399 (1923) (upholding teacher’s right to teach and child’s right to learn foreign language).
[39] United States v. One Book Called “Ulysses”, 5 F. Supp. 182 (1933) (permitting import of James Joyce’s novel “Ulysses”); Grove Press v. Gerstein, 378 U.S. 577 (1964) (overturning ban of Henry Miller’s “Tropic of Cancer”).
[40] Brandenburg v. Ohio, 395 U.S. 444 (1969) (upholding right of KKK to make inflammatory statements); National Socialist Party v. Skokie, 432 U.S. 43 (1977) (upholding right of American Nazis to march through neighborhood of Holocaust survivors); R. A. V. v. City of St. Paul, 505 U.S. 377 (1992) (upholding racists’ right to burn cross on African-American family’s lawn). But see Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (upholding McCarran Walters Act deportation of resident aliens for advocating communism).
[41] See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (noting the privacy of the marital bedroom). But see Reynolds v. United States, 98 U.S. 145 (1878) (upholding ban on polygamy).
[42] This notion, of course, is foundational to all understandings of limited government: for citizens to be free, the government must not be. A free government is an absolute government. The notion that extending rights to improper parties reduces the rights of the legitimate holders is similarly commonplace: your right to swing your fist ends at my nose. The concept is regularly used, for example, to justify limits on citizenship. See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 410 (1856) (arguing that founders could not have intended to extend rights to free African Americans because admitting African Americans to citizenship would be incompatible with White supremacy); see also Ronald Dworkin, The Great Abortion Case, N.Y. Rev. Books (June 29, 1989) (arguing that to classify fetus as a constitutional “person” would be incompatible with rights of women).
[43] See generally Michels, Political Parties, supra note 3 (arguing that organizational leaders will always have different views of the general interest than their followers).
[44] United States v. AT&T Co., 552 F.Supp. 131 (D.D.C. 1982) (breakup of AT&T monopoly). See, e.g., Hepting v. AT&T Corp., 508 F.3d 898 (9th Cir. 2007), described by its plaintiffs at http://www.eff.org/cases/hepting (accusing AT&T of illegal wiretaps on behalf of governmental spy agency); Tim Wu, Has AT&T Lost Its Mind?, Slate, Jan. 16, 2008 (contending that AT&T proposed to unilaterally remove transmissions it determined, without judge or jury, to be violations of property law).
[45] For example, several other countries had smart phones and internet access over cellular networks before the US. See, e.g., History of Mobile Phones, Wikipedia. AT&T’s executives, like most US executives, are extremely well paid by any standards; its CEO received over $27 million in 2010. AT&T Form 14A (3/10/11) at p. 54; see also Lucian Bebchuk and Jesse Fried, Pay Without Performance 1 (2004)(describing rise in US executive pay without commensurate performance); Nuno G. Fernandes, Miguel A. Ferreira, Pedro P. Matos & Kevin J. Murphy, The Pay Divide: (Why) Are US Executives Paid More? (2010) (available at http://ssrn.com/abstract=1341639) (stating that in 2006 American executives were still paid double what their European counterparts receive despite convergence of foreign executive pay to higher US norms in recent years).
[46] The Supreme Court has often used the rhetoric of privacy to avoid examining the power relations inside organizations. For example, the Court used “privacy” as a basis for upholding the notorious White Primaries. Compare Grovey v. Townsend, 295 U.S. 45 (1935) (upholding “private” White primary), withSmith v. Allwright, 321 U.S. 649 (1944) (finding White primaries unconstitutional). Similarly, privacy was the core of the Lochner era’s constitutional protection of “private” contractual oppression, Lochner vs. New York, 198 U.S. 45 (1905) (reasoning that unhealthy working conditions were a purely private matter for agreement between employer and employee), just as it was the key justification for refusing to protect the victims of coverture and common law property rules in Nineteenth century family law. See, e.g., McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953) (holding that privacy rights of “family” precluded judicial inquiry into husband’s control of family finances, even if wife was left coat-free); see also Lee E. Teitelbaum, The Family as a System: A Preliminary Sketch, 1996 Utah L. Rev. 537, 541–42 (discussing McGuire).
[47] The opposite is more nearly true. One key struggle of the liberal revolutions of the Eighteenth Century was to eliminate the corporate privileges (and obligations) of the Church, aristocracy, serfs and Jews, chartered cities and universities and other entities with rights and obligations in violation of the equal rule of law.
[48] U.S. Decl. of Independence.
[49] U.S. Const. pmbl.
[50] AT&T exemplifies the size and power of our publicly traded multinational corporations. The largest provider of landline, mobile telephone and broadband internet service in the US, http://www.att.com/Common/about_us/public_policy/by_the_numbers_111510.pdf, AT&T has 266,000 employees, http://www.att.com/gen/public-affairs?pid=12907, about as many as the Corporation of the City of New York. Its telecommunications functions are sufficiently important that in many countries (and some US jurisdictions) they would be governmental.
[51] Louis Brandeis, Other People’s Money and How the Bankers Use It 92 (1914); cf. Barr v. Matteo, 360 U.S. 564, 577 (1959) (Black, J., concurring) (“The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important”). While Justice Black refers to “public” employees, the effective functioning of our mixed economy, in which most important economic activity takes place within large bureaucracies, requires exactly the same transparency in the “private” sector. Major institutions do not suddenly become more responsible, or more responsive to public opinion, simply because we make them answerable to the impersonal and often irrational forces of the stock market instead of the charged and sometimes manipulable electorate. Markets can function only within a sound legal, regulatory and political framework, and the public opinion that ultimately determines those frameworks will only be as sound as its understanding of the institutions that make our economy work. Our major business corporations are far too important to be secret.
[52] The classic explication of the modern dilemma remains President Eisenhower’s valedictory speech denouncing the threat of the military-industrial complex. Public Papers of the Presidents: Dwight D. Eisenhower 1035 (1960); see also Daniel J.H. Greenwood, Beyond the Counter-Majoritarian Difficulty: Judicial Decision-Making in a Polynomic World, 53 Rutgers L. Rev. 781 (2001) (exploring the nexus among our main political decision systems: voting, market, bureaucratic hierarchy, and interpretation).
[53] In the last couple of decades, political discourse has tended to sharply distinguish between governmental bureaucracies and “private” ones. At the time of FOIA’s passage, suspicion of bureaucracy tended to emphasize the similarities among bureaucracies. See, e.g., Ralph Nader, Joel Seligman & Mark J. Green, Taming the Giant Corporation (1974). Our major business corporations belong on the state side of the classic liberal divide between state and citizen: like the state, they are governance institutions on which we depend but which always threaten to escape our control.
[54] Legal personality has little to do with moral personhood. In admiralty law, boats are legal persons. That means they can be sued. It does not mean that they are entitled to consideration as moral subjects, just as contract law’s denial of legal personality to children does not imply that children are not moral persons.
[55] See, e.g., Morris R. Cohen, Property and Sovereignty, 13 Cornell L. Q. 8, 9, 28 (1927).
[56] Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 739 (1989).
[57] Cf. Ronald Dworkin, supra note 42 (arguing that granting constitutional rights to fetuses would reduce the rights of citizens).

Old Paper by ThunderThemes.net