As Citizens United Turns 1, U.S. Supreme Court Considers Corporate Personhood Again

by Marian Wang ProPublica

The Supreme Court heard oral arguments today on a case between AT&T and the Federal Communications Commission [1], revisiting the legal concept of “corporate personhood” last strengthened under the court’s Citizen United ruling on corporate campaign spending. (That controversial ruling has its first anniversary [2] this week.)

The case before the court focuses on whether AT&T, a corporation, can stop government agencies from releasing information obtained for law enforcement purposes by claiming such disclosures would violate the company’s “personal privacy [3].”

The phrase is included as an exemption in the text of the Freedom of Information Act, a federal law that instructs government agencies on what information to make public. As the SCOTUS blog notes, however, there’s no specific definition [4] of the words “personal privacy,” so it’s not clear whether a corporation can qualify as a person in this case.

The lower court, the Third Circuit in Philadelphia, sided with AT&T in an earlier ruling, stating that corporations are capable of being embarrassed, harassed and stigmatized by public disclosures. If the Supreme Court agrees, it could limit how much information federal agencies are able to release about the companies they've investigated. (Here's Bloomberg, with more background [5].)

In the appeal before the high court, a review of the briefs in support of each side [6] shows a number of news organizations and government openness and watchdog groups backing up the FCC. Major business groups—namely the National Association of Manufacturers, the Chamber of Commerce and the Business Roundtable—have filed briefs in support of AT&T.

Justice Elena Kagan, it’s worth noting, was solicitor general at the time when the FCC and U.S. government petitioned the Supreme Court to review the AT&T case. She has had to recuse herself [7] from considering it, and should the court split 4-4 without her, the lower court’s decision would stand.

Kagan’s successor as solicitor general, Neal Katyal, has argued that “a corporation itself can no more be embarrassed, harassed, or stigmatized than a stone [5].”

According to early reports [8] on the day’s proceedings, the high court showed signs that it agreed. A transcript [9] [PDF] of the oral arguments has also been made available.