Work with me on this one as we wend our way down a road of legal hair splitting and semantic daring do. The case is FCC v. AT&T decided by the U. S. Supreme Court, 8-0. As Solicitor General, Elena Kagan’s office represented the FCC as the case was coming up, and she did not participate in the decision. Chief Justice Roberts wrote the opinion.
Here’s the backdrop. The FCC’s investigative bureau conducted an investigation into overcharging by AT&T in the FCC administered Education-Rate program that was created to provide enhanced access for schools and libraries to advanced telecommunications services. That investigation was resolved by a consent decree. Following the consent decree, a trade group comprised of AT&T competitors filed a Freedom of Information Act [FOIA] request for records from the investigation. AT&T objected based on an FOIA exception related to matters of “personal privacy” which it contended should apply to corporations.
Before charging forward, understand a few things. First, this is a case in which the Supreme Court is interpreting the meaning of a federal statute, the FOIA. It is not a constitutional case. Second, the U. S. Code, in its definitions section, specifically includes corporations in its definition of the word “Person(s)”. Third, in prior decisions the Court has recognized that corporations are subject to “personal jurisdiction” and enjoy “personal privileges.”
Fasten your seatbelt, here we go. The FOIA exemption is 5 U. S. C. §552(b)(7)(C). It exempts disclosure of law enforcement records which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Supreme Court held that, even though corporations are legally “persons”, personal privacy applies only to individual human beings and not to artificial persons.
For those interested in etymology, semantics or who simply have a morbid fascination with the way lawyers can manipulate words to fashion a result, the reasoning of the Court is an interesting read. For starters, the Court nearly acknowledges, but ultimately does not fully admit, that the word personal derives from the word person. Chief Justice Roberts observes, “Adjectives typically reflect the meaning of corresponding nouns, but not always.” He notes some exceptions where adjectives do not correspond to the base noun, and uses examples like “corn” and “corny”. He then attempts, largely unsuccessfully, to explain how the adjective “personal” does not relate to the corresponding noun “person.”
For this exercise, the Chief Justice relies on the fact that the word “personal” is not included in the definitions section of federal statute [though the word “person” is]. From there he contends that the ordinary meaning of the phrase personal privacy should apply, rather than a meaning related to the legal definition of person. AT&T had argued that “personal privacy” meant the privacy of a person, and, since the statute included corporations within the meaning of “person(s)”, the personal privacy exemption applied to corporations by legal definition, if not ordinary definition.
The Court, after divorcing the adjective “personal” from its precedent noun “person”, goes on to rummage through Webster’s Dictionary, a 1974 Attorney General’s opinion and other sources to conclude that both the word “personal” and the phrase “personal privacy” apply only to individual human beings.
The sad part is that none of semantic gamesmanship was necessary. The decision is correct within the simple context of the FOIA itself. Subsection (4) provides corporate exemptions. All the Court really had to do was say that, within the context of the statute, corporate exemptions were distinguished from individual exemptions. They ultimately get around to doing that in Part III of the decision. But, the semantic hair splitting that precedes Part III does make the case more entertaining.
So, does this have any impact on other corporate rights cases like Citizens United? Don’t get your hopes up. The answer is no. This case turns on the interpretation of one federal statute and does not impact previously recognized corporate rights that are constitutionally based.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.